Csyg, Inc. v. Adrienne Danielle Smith

• Court: Court of Appeals of Georgia
• Decided: October 31, 2019
• Docket: A19A1504
• Status: Published

Opinion

FIFTH DIVISION MCFADDEN, C. J., MCMILLIAN, P. J., and MERCIER, J.

NOTICE: Motions for reconsideration must be physically received in our clerk’s office within ten days of the date of decision to be deemed timely filed. http://www.gaappeals.us/rules

October 31, 2019

In the Court of Appeals of Georgia A19A1503. AVIS RENT A CAR SYSTEM, LLC et al. v. SMITH. A19A1504. CSYG, INC. et al. v. SMITH.

MCFADDEN, Chief Judge.

Adrienne Danielle Smith was seriously injured when she was struck by a sport

utility vehicle that had been stolen from an Avis car rental lot in downtown Atlanta.

She sued Avis Rent A Car System, LLC, Avis Budget Group, Inc., and Peter Duca,

a regional security manager for Avis (together, “Avis”), as well as CSYG, Inc., the

operator of the downtown Avis location, and Yonas Gebremichael, CSYG’s owner.

Smith also sued Byron Perry, the former CSYG employee who stole the vehicle.

After a 10-day trial, the jury returned a $47 million verdict in favor of Smith

apportioned among the defendants. Avis filed a motion for judgment notwithstanding

the verdict or, in the alternative, for new trial, Perry filed a motion for new trial (which he later dismissed), and CSYG and Gebremichael filed a motion for judgment

notwithstanding the verdict or, in the alternative, for new trial. The trial court denied

the motions. Avis, CSYG, and Gebremichael appeal.

Today’s opinion in the companion case, Avis Rent-a-Car System v. Johnson,

__ Ga. App. __ (__ SE2d __) (Case No. A19A0928, decided October 31, 2019), holds

that Perry’s intervening criminal acts were the proximate cause of the injuries

inflicted here. Accordingly we now hold that Perry’s intervening criminal acts were

the proximate cause of Smith’s injuries, so the defendants are entitled to judgment on

her claims arising from the defendants’ alleged failure to secure the vehicle and the

premises; that the trial court erred by entering judgment against Avis Rent A Car

System and Avis Budget Group for the percentages of fault the jury apportioned to

CSYG, Gebremichael, and Duca; that the trial court erred by denying CSYG and

Gebremichael’s motion for directed verdict on any claim that they are vicariously

liable for Perry’s negligence; that Perry was not acting under color of employment

when he committed his criminal acts, so CSYG and Gebremichael are entitled to

judgment on Smith’s negligent hiring and retention claims; and that Gebremichael

cannot be held personally liable. So we reverse in both cases.

1. Facts and procedural posture.

2 Viewed in the light most favorable to Smith, Jones v. Sperau, 275 Ga. 213 (1)

(563 SE2d 863) (2002), the trial evidence showed that CSYG operated an Avis car

rental lot on Courtland Street in downtown Atlanta. CSYG hired Byron Perry to wash

and refuel cars at the location. On the night of August 23, 2013, after the Avis lot had

closed at 7 p.m. and Perry and the other employees had left the premises, Perry

apparently returned and stole a Ford Edge sport utility vehicle from the lot. Perry

intended to sell the vehicle.

Shortly before midnight, five hours after the lot had closed, the driver of the

stolen Ford Edge was fleeing from police when the vehicle crashed into a brick wall.

Smith and her friend, Brianna Johnson, were sitting on the wall at the time of the

collision and were seriously injured. The location of the collision was 20 minutes

away from the Avis lot. Perry, who was in the vehicle, fled from the scene and later

pled guilty to multiple crimes arising from the incident, including serious injury by

vehicle, reckless driving, hit and run, fleeing or attempting to elude police, and theft

by taking.

Smith filed this lawsuit to recover for her injuries, and the jury returned a $47

million verdict in her favor against all defendants. The jury returned a special verdict,

finding that Avis Rent a Car System, LLC and Avis Budget Group, Inc. were 50

3 percent at fault; CSYG, Inc. was 15 percent at fault; Gebremichael and Duca were

each 1 percent at fault; and Perry was 33 percent at fault. (The jury also found that

“N. O.,” an unidentified person whom Perry claimed was involved in the theft of the

vehicle, was zero percent at fault.) The jury found that CSYG was an employee of

Avis Rent A Car System, LLC and Avis Budget Group, Inc. Finally, it found that only

Perry was liable to Smith for punitive damages.

These appeals follow the trial court’s denial of Avis’s and CSYG and

Gebremichael’s motions for judgment notwithstanding the verdict or, in the

alternative, for new trial.

2. Failing to secure the vehicle and premises and negligent hiring and

retention.

As we held in Avis Rent A Car System v. Johnson, __ Ga. App. __, __ (2) (b)

(__ SE2d __) (Case No. A19A0928, decided October 31, 2019), any breach of duty

to secure the premises and the stolen vehicle was not the proximate cause of Smith’s

injuries, given Perry’s intervening criminal conduct. So the defendants were entitled

to judgment as a matter of law on Smith’s claims arising from the defendants’ alleged

failure to secure the vehicle and premises, see id., and we will next address those

4 issues arising from CSYG and Gebremichael’s employment of Perry, including the

imposition of vicarious liability on Avis for the fault apportioned to them.

3. Judgment’s imposition of vicarious liability for fault apportioned to CSYG

and Gebremichael.

Avis argues that the trial court erred by entering judgment against Avis for the

percentages of fault apportioned to CSYG and Gebremichael. We agree.

The jury’s verdict did not specify the theories upon which the jury decided the

case. The special verdict form simply asked the jury to determine whether Smith was

entitled to recover from the various defendants; to determine whether CSYG was an

independent contractor or an employee of Avis; to determine the monetary amount

of damages Smith suffered; and to apportion the percentages of fault amongst the

defendants. The jury found Avis Rent A Car System and Avis Budget Group to be 50

percent at fault; Perry to be 33 percent at fault; CSYG to be 15 percent at fault; and

Gebremichael and Duca each to be 1 percent at fault.

When the trial court entered judgment on the verdict, however, the court made

Avis liable for the fault the jury had assigned to Gebremichael and CSYG. The trial

court entered judgment on the verdict as follows:

5 Plaintiff shall recover from Defendants Avis Rent A Car System, LLC and Avis Budget Group, Inc. (“Avis Defendants”) the sum of $31,490,000.00. This constitutes (a) damages for the 50% fault the jury assigned to the Avis Defendants ($23,500,000.00), plus (b) damages for the 15% fault the jury assigned to Defendant CSYG, Inc. ($7,050,000.00), plus (c) damages for the 1% fault the jury assigned to Defendant Yonas Gebremichael ($470,000.00), plus (d) damages for the 1% fault the jury assigned to Peter Duca ($470,000.00). The Avis Defendants are jointly and severally liable with CSYG, Inc. because the jury expressly found, by special verdict, that CSYG is an “Employee” of the Avis Defendants and, thus, the Avis Defendants are vicariously liable for CSYG.

Avis argues that the trial court erred by entering a judgment that made it liable

for the 16 percent of fault the jury had assigned to CSYG and Gebremichael. The

applicable provision of the apportionment statute is OCGA § 51-12-33 (b), which

provides:

Where an action is brought against more than one person for injury to person or property, the trier of fact, in its determination of the total amount of damages to be awarded, if any, shall after a reduction of damages pursuant to subsection (a) of this Code section, if any, apportion its award of damages among the persons who are liable according to the percentage of fault of each person. Damages apportioned by the trier of fact as provided in this Code section shall be the liability of each person against whom they are awarded, shall not be

6 a joint liability among the persons liable, and shall not be subject to any right of contribution.

(Emphasis supplied). “This provision addresses liability, not merely fault, and by

defining the liability of each person against whom damages are awarded and

prohibiting joint liability, it seems generally to preclude any post-verdict

reassignment of damages based on the jury’s apportionment of fault.” Camelot Club

Condo. Assn. v. Afari-Opoku, 340 Ga. App. 618, 626 (2) (b) (798 SE2d 241) (2017).

Smith argues that because the jury found that CSYG is an employee of Avis,

Avis is vicariously liable for CSYG’s negligence, and the trial court properly entered

a judgment reflecting that vicarious liability. But Smith asserted some claims against

CSYG and Gebremichael for which Avis could be vicariously liable and other claims

for which Avis might not be vicariously liable. And because the verdict form did not

ask the jury to specify the theories upon which it decided the case, “[w]e cannot

determine. . . [on] which of [Smith’s] claims the jury, in its prerogative, based its

award. . . . Therefore, we find that the trial court erred in imposing liability on [Avis

Rent A Car System and Avis Budget Group] for [CSYG’s, Gebremichael’s, and

Duca’s] share of fault.” Camelot Club, 340 Ga App. at 629 (2) (b) (citation omitted).

Accordingly, we vacate the portion of the trial court’s judgment imposing vicarious

7 liability on Avis Rent A Car System and Avis Budget Group. See id. Compare PN

Express v. Zegel, 304 Ga. App. 672, 680 (5) (697 SE2d 226) (2010) (the

apportionment statute does not apply where a defendant employer faces only

vicarious liability under the doctrine of respondeat superior because the employer and

employee “are regarded as a single tortfeasor” ).

4. Vicarious liability for Perry’s acts.

CSYG and Gebremichael argue that the trial court erred by denying their

motion for directed verdict on Smith’s claims seeking to hold them vicariously liable

for Perry’s acts. We agree.

Smith alleged in her complaint that CSYG (but not Gebremichael) was

vicariously liable for Perry’s conduct. But in response to CSYG and Gebremichael’s

motion for directed verdict on the issue of vicarious liability for Perry’s conduct,

Smith stated she was not seeking to hold the defendants vicariously liable for Perry’s

conduct. Nonetheless, the trial court denied the motion for directed verdict, and he

charged the jury on principles of vicarious liability without specifying that Smith did

not seek to hold the defendants liable for Perry’s conduct.

As detailed above, the verdict did not specify the theories upon which the jury

decided the case. The special verdict form simply asked whether Smith was entitled

8 to recover from the various defendants. So the jury could have found CSYG and

Gebremichael liable on theories of direct negligence or on theories of vicarious

liability, even though Smith did not assert such a claim. “[W]hen a case is submitted

to a jury on both erroneous and proper bases and the jury returns a general verdict

such that we cannot determine on which basis the verdict was entered, the verdict

cannot stand.” Southeastern Pain Specialists v. Brown, 303 Ga. 265, 273 (2) (b) (811

SE2d 360) (2018). “As it is uncertain which cause of action the jury considered in

awarding the damages, they being at liberty under the charge of the court to consider

both [theories of direct and vicarious liability], the verdict must be set aside. . . .”

Southern Railway Co. v. Hardin, 107 Ga. 379, 383 (33 SE 436) (1899).

5. Negligent hiring and retention.

CSYG and Gebremichael argue that they were entitled to a directed verdict on

Smith’s claims that they negligently hired and retained Perry because he was not

acting under color of employment when he collided with Smith. We agree that CSYG

and Gebremichael were entitled to a directed verdict on this claim.

An employer “is bound to exercise ordinary care in the selection of employees

and not to retain them after knowledge of incompetency[.]” OCGA § 34-7-20. But “to

be actionable, the [employee’s] tortious act must occur during the [employee’s]

9 working hours or while the employee is acting under color of employment. An

employer is shielded from liability for those torts his employee commits on the public

in general.” Herrin Business Products v. Ergle, 254 Ga. App. 713, 718 (4) (563 SE2d

442) (2002) (negligent retention). See also Lear Siegler v. Stegall, 184 Ga. App. 27

(360 SE2d 619) (1987) (negligent hiring). Here, it is undisputed that Perry’s tortious

act did not occur during his working hours, so Smith was required to present evidence

that he was acting under color of employment. But the evidence showed that Perry

was not acting under color of employment when he committed his criminal acts.

Our cases do not clearly define the meaning of “under color of employment”

in this context. In TGM Ashley Lakes v. Jennings, 264 Ga. App. 456, 459 (1) (a) (590

SE2d 807) (2003), we held that “liability does not attach if the employee committed

the tort in a setting or under circumstances wholly unrelated to his employment.”

Based on this language, Smith argues that if conduct “bears any relationship at all”

to employment, it is under color of employment. We disagree. In the cases in which

we have held that a jury could find an employee acted under color of employment, the

employee’s “contact with [the plaintiff was] a function of his employment or [the

employer’s] business,” Lear Siegler, 184 Ga. App. at 28, or the employee used some

lawful aspect of his employment to enable the commission of the tort. In every case,

10 the employer-related conduct that allowed the employee to commit the tort was

conduct in the performance of his duties, or conduct permitted by, approved by, or

allowed by the employer. See Harvey Freeman & Sons v. Stanley, 259 Ga. 233, 233-

234 (1) (378 SE2d 857) (1989) (jury could find that resident manager of apartment

complex was acting under color of employment when relationship with minor tenant

plaintiffs, who claimed resident manager and her husband sexually abused them,

“began because she was the resident manager,” given “special landlord-tenant

relationship”); Graham v. City of Duluth, 328 Ga. App. 496 (759 SE2d 645) (2014)

(jury could find that off-duty police officer was acting under color of employment at

the time he attacked plaintiff because “he made several objective displays of authority

to [plaintiff], including telling her that he was a police officer, putting on his vest

with his radio attached, showing her his badge, and instructing her to summon him

help,” he “attacked her with his Department-issued pepper spray before engaging in

a shoot out with his Department-issued service weapon, striking [the plaintiff’s] car

and a fellow officer who came to the scene to help”); Allen v. Zion Baptist Church,

328 Ga. App. 208, 212 (1) (a) (761 SE2d 605) (2014) (jury could find church

volunteer was acting under color of employment as youth group volunteer when he

molested victim, given that his presence at church activities had the tacit approval of

11 church authorities; volunteer met the victim at the church; molestation occurred when

volunteer invited the victim to church’s fall festival; volunteer told victim’s mother

that he was a youth leader and asked if the victim could attend the festival, and attack

took place immediately afterward next to church property); TGM Ashley Lakes, 264

Ga. App. at 459 (1) (a) (apartment complex could be held liable for negligent hiring

and retention of maintenance worker who was given access to residents’ keys and

murdered a resident in her apartment); Underberg v. Southern Alarm, 284 Ga. App.

108, 115 (2) (643 SE2d 374) (2007) (although alarm company salesman gained

entrance to victim’s house through an unlocked door without using his status as an

employee to do so, a jury could infer that alarm company gave victim’s name and

address to salesman as a potential lead).

Here, on the other hand, the facts that Smith asserts show that Perry was acting

under color of employment were actions Perry took against the defendants’ interests

or even crimes of which the defendants were victims. She argues that some evidence

supported the conclusion that Perry previously had stolen a car from the Courtland

Street Avis, informing him that the defendants were uninterested in investigating

theft. But the defendants would have been the victim of that crime. Smith argues that

Perry obtained the ignition key to the Ford Edge while cleaning the vehicle. But

12 stealing the ignition key was not in the defendants’ interests. Smith argues that some

evidence supported the conclusion that Perry’s employment gave him the means to

take a gate key, which allowed him to access the vehicle after closing hours. But

stealing the gate key was not in the defendants’ interests. Smith argues that Perry’s

employment taught him that there were no cameras at the Courtland Street location

and taught him how the inventory procedure worked. But casing the premises to

enable theft was not in the defendants’ interest.

Smith argues that Perry had the opportunity to steal the Ford Edge because he

worked at the Courtland Street location and that he occupied the stolen vehicle when

the vehicle hit Smith. But she implicitly concedes that simply working for the

defendants and being in the vehicle are insufficient to render his tort under color of

employment. In short, none of his conduct demonstrates that Perry was acting under

a pretense of employment when he injured Smith. Nor was this conduct related in

some meaningful way to the purpose of his employment, the performance of his

duties, or the interests of the defendants. So Perry was not acting under color of

employment when he committed the tort. Instead, “[w]ith regard to [CSYG and

Gebremichael], at the time [of the tortious act, Smith] was merely a member of the

general public[,]” New Madison South Partnership v. Gardner, 231 Ga. App. 730,

13 735 (2) (499 SE2d 133) (1998), so CSYG and Gebremichael were entitled to

judgment on her claims for negligent hiring and retention. Lear Siegler, 184 Ga. App.

at 28-29.

6. Gebremichael’s individual liability.

Smith argues that Gebremichael can be held personally liable for his own

tortious conduct, including hiring and retaining Perry, failing to secure the vehicles,

and negligently training his employees. As discussed in Division 5, supra, any

negligent hiring and retention claim fails, so Gebremichael cannot be held personally

liable for negligent hiring and retention. And as discussed in Division 2, supra, the

failure to secure the vehicles was not the proximate cause of Smith’s injuries, so

Gebremichael cannot be held personally liable for failing to secure the vehicles.

Smith’s argument that Gebremichael can be held personably liable for

negligent training also fails. That argument is based on Smith’s claim that

Gebremichael negligently trained the employee who took inventory the night the Ford

Edge was stolen. But, as noted, the failure to secure the vehicle was not the proximate

cause of Smith’s injuries. “There must be a causal link between the alleged breach of

duty and the injury caused, and [Smith] fail[ed] to show how lack of training . . .

14 caused her injury.” La Petite Academy v. Turner, 247 Ga. App. 360, 362 (1) (543

SE2d 393) (2000).

The trial court erred in denying Gebremichael’s motion for directed verdict on

Smith’s claims seeking to hold him personally liable.

7. Remaining enumerations of error.

In light of this disposition, we do not reach CSYG and Gebremichael’s

remaining enumerations of error.

Judgments reversed in Case No. A19A1503 and Case No. A19A1504.

McMillian, P.J., concurs fully in Divisions 1, 2 and 7, and in the judgment only as to

Divisions 3, 4, 5 and 6. Mercier, J., concurs fully in Divisions 1, 2, 3 and 7, and in

the judgment only as to Divisions 4, 5 and 6.*

* DIVISIONS 3, 4, 5 AND 6 OF THIS OPINION ARE PHYSICAL

PRECEDENT ONLY. COURT OF APPEALS RULE 33.2(a).