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Appeals Court Says Hero Security Officer Cannot Recover Against Mall Owner

In March 2007, a security officer working at an Atlanta mall intervened to stop a robbery at a jewelry store. The officer shielded a mall patron’s body as one of the robbers opened fire. The officer was seriously injured and died several years later. Two other people were also injured by gunfire.

Unfortunately, the security officer’s heroism that day did not help his estate in court. The officer initially filed a premises liability lawsuit, accusing the mall’s owners of negligence in managing the property. A trial court granted these defendants’ motion for summary judgment, and in opinion issued on November 3rd of this year, a three-judge panel of the Georgia Court of Appeals affirmed.

Swope v. Greenbriar Mall Limited Partnership

The mall was not liable for the officer’s injuries under the “assumption of risk” doctrine. As the Court of Appeals explained, when a person “voluntarily and knowingly takes a risk involving imminent danger, he is precluded from recovery by reason of another’s negligence.” Here, the security officer “fully appreciated the danger involved” in confronting the robbers and shielding the mall patron from gunfire, and he therefore chose to assume all the risk involved.

The officer’s estate argued the Court of Appeals should apply what is known as the “rescue doctrine,” which creates an exception to the assumption of risk. The rescue doctrine holds that when a defendant’s negligence causes “imminent and urgent peril to life and property,” a person who attempts to rescue said life and property can attempt to recover damages, notwithstanding the assumption of risk. However, the rescue doctrine under Georgia law usually applies to a “volunteer” or “bystander.”

The security officer was neither, according to the Court of Appeals. To the contrary, he was a professional specifically hired to guard the mall. More to the point, he was only at the scene of the robbery because his job placed him in that location.

The estate argued the officer should have been considered a volunteer in this context because his job description was to “observe and report” the robbery, not to confront the robbers or otherwise intervene directly. The Court of Appeals disagreed. Although the court could not identify any previous Georgia case dealing with this exact type of situation, the panel cited an Arizona Court of Appeals decision holding a police officer could not invoke the rescue doctrine when he was injured attempting to remove an injured driver from the scene of a motor vehicle accident. There, the police officer claimed his job was simply to take charge of the scene, not to effect a rescue himself. But the Arizona court found that since the officer was only on the scene because of his employment, any injury he sustained, even if it occurred while going above-and-beyond the call of duty, was covered by the assumption of risk. The Georgia Court of Appeals said the same logic should apply to this case.