Although a business proprietor is not an insurer of the safety of its patrons, Washington Rd. Properties v. Stark, 178 Ga. App. 180, 181 ( 342 S.E.2d 327) (1986), a proprietor "has a duty, when he can reasonably apprehend danger to a customer from the misconduct of other customers or persons on the premises, to exercise ordinary care to protect the customer from injury caused by such misconduct." Shockley v. Zayre of Atlanta, 118 Ga. App. 672, 673 ( 165 S.E.2d 179) (1968). However, "unforeseen and unexpected acts particularly those mala in se perpetrated by third parties on the proprietor's premises do not activate liability by the proprietor . . . [unless] it is shown that the proprietor has reasonable grounds for apprehending that the very type criminal act which resulted in injury to his guests is reasonably likely to occur.

Great Atlantic Pacific Tea Co. v. Cox, 51 Ga. App. 880, supra; Davidson v. Harris, Inc., 79 Ga. App. 788 ( 54 S.E.2d 290) and Davidson v. Harris, Inc., 81 Ga. App. 665 ( 59 S.E.2d 551); Lincoln v. Wilcox, 111 Ga. App. 365 ( 141 S.E.2d 765). See also Stewart v. Mynatt, 135 Ga. 637, 639 (3) ( 70 S.E. 325); Covington v. S. H. Kress Co., 102 Ga. App. 204 ( 115 S.E.2d 621); Shockley v. Zayre of Atlanta, Inc., 118 Ga. App. 672 ( 165 S.E.2d 179). (b) Construing the evidence in a light most favorable to plaintiff in the instant case, we are constrained to hold that she has failed to produce evidence to show that defendant's manager or other employees had notice of any dangerous conduct on the occasion in question.

Under OCGA § 51–3–1, when a business proprietor should reasonably apprehend that an invitee on the premises is in danger of being injured by the misconduct of another person on the premises, the proprietor has a duty to exercise ordinary care to protect the invitee from injury caused by the misconduct. Shockley v. Zayre of Atlanta, 118 Ga.App. 672, 673, 165 S.E.2d 179 (1968). When the conduct of persons on the premises is such that the proprietor from known facts or circumstances should reasonably apprehend danger to other customers, it is his duty to interfere to prevent injury, and the failure to interfere when the proprietor has an opportunity to foresee and prevent injury may constitute negligence.... [But][n]o matter how innocent the plaintiff may be, he is not entitled to recover unless the defendant did something that it should not have done, or failed to do something it should have done pursuant to the duty owed the plaintiff.

Under Georgia law, parties generally have no duty to protect a plaintiff from the conduct of a third party. Shockley v. Zayre of Atlanta, Inc., 165 S.E.2d 179, 182 (Ga. Ct. App. 1968) (finding that the defendant had no duty to protect the plaintiff from the foreseeable and dangerous actions of third parties). While an exception exists where there is a "special relationship" between a defendant and a third party, Georgia courts have only recognized such a relationship when a defendant has legal control over a third party who causes the plaintiff's injuries — that is, when the defendant has the "legal authority to restrain a person's liberty."

Georgia courts have enforced the exception for "personal malice" crimes. See Shockley v. Zayre of Atlanta, Inc., 165 S.E.2d 179 (Ga. App. 1968); Adler's Package Shop, Inc. v. Parker, 378 S.E.2d 323 (Ga. App. 1989). In Shockley, the plaintiff was attacked inside a store by a woman who previously had threatened the plaintiff and against whom the plaintiff had taken out a peace warrant.

We agree with appellant that, as a general rule, there is no duty to control the conduct of third persons to prevent them from causing physical harm to others. Shockley v. Zayre, 118 Ga. App. 672 ( 165 S.E.2d 179) (1968); Restatement, Torts, 2d, § 315. We find, however, that one of the exceptions to that rule applies here because of the special relationship which existed between appellant and appellees' father: "One who takes charge of a third person whom he knows or should know to be likely to cause bodily harm to others if not controlled is under a duty to exercise reasonable care to control the third person to prevent him from doing such harm."

"Negligence is predicated on faulty or defective foresight rather than on hindsight which reveals a mistake." Wakefield, supra, p. 263; Shockley v. Zayre of Atlanta, 118 Ga. App. 672, 675 ( 165 S.E.2d 179) (1968); Daneker v. Megrue, 114 Ga. App. 312 ( 151 S.E.2d 157) (1966); Misenhamer v. Pharr, 99 Ga. App. 163, 168 ( 107 S.E.2d 875) (1959). In respect to Ellington's lack of ordinary care for his own safety, looking continuously in all directions is not required in all circumstances. "What is a reasonable lookout depends on all the circumstances at the time and place."

The man observed by the maintenance worker was eventually identified as the co-worker the parties agree shot and killed Gale. In claiming the defendants breached a duty to prevent the shooting, the appellant contends we should apply the rule stated in Shockley v. Zayre of Atlanta, 118 Ga. App. 672, 673 ( 165 S.E.2d 179) (1968), and similar cases establishing that when a proprietor or his employee should reasonably apprehend that an invitee on the business premises is in danger of being injured by the misconduct of another person on the premises, the proprietor has a duty to exercise ordinary care to protect the invitee from the injury. The failure to do so when the proprietor has an opportunity to foresee and prevent the injury may constitute negligence. Id.; see Shell Oil Co. v. Diehl, 205 Ga. App. 367, 368 ( 422 S.E.2d 63) (1992).

A party is not required to specify any count in a motion for summary judgment or the grounds upon which it relies. Shockley v. Zayre of Atlanta, 118 Ga. App. 672, 675 ( 165 S.E.2d 179) (1968). Moreover, Georgia law gives a trial judge wide latitude to dispose of any and all claims in the interest of judicial economy, so that a judge may grant summary judgment to a party even if he does not request it.

The general duty referred to above, as articulated in the Restatement, Sec. 282, was the beginning basis for the legal duty in Bradley Center, supra. That case is like this one in that it involves a defendant being sued for the act of a third person which results in harm to plaintiff. In such third party cases, "there is no duty to control the conduct of third persons to prevent them from causing physical harm to others," citing Shockley v. Zayre, 118 Ga. App. 672 ( 165 S.E.2d 179) (1968), and Restatement, Torts 2d, § 315. That section provides two exceptions, which are where "(a) a special relation exists between the actor and the third person which imposes a duty upon the actor to control the third person's conduct, or (b) a special relation exists between the actor and the other which gives to the other a right to protection." Bradley Center involved a type (a) exception, created by the special relationship existing between defendant and the third person.