Overground Atlanta, Inc. v. Dunn

381 S.E.2d 137, 191 Ga. App. 188, 1989 Ga. App. LEXIS 494
CourtCourt of Appeals of Georgia
DecidedMarch 17, 1989
Docket77759
StatusPublished
Cited by10 cases

This text of 381 S.E.2d 137 (Overground Atlanta, Inc. v. Dunn) is published on Counsel Stack Legal Research, covering Court of Appeals of Georgia primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Overground Atlanta, Inc. v. Dunn, 381 S.E.2d 137, 191 Ga. App. 188, 1989 Ga. App. LEXIS 494 (Ga. Ct. App. 1989).

Opinions

Pope, Judge.

Charles Adrian Dunn, individually and by next friend, his mother, Geraldine Dunn, brought suit against Overground Atlanta, Inc. d/b/a The Jolly Fox (Overground) and against Rodney Goodman, [189]*189Overground’s employee, to recover damages arising from an incident at the Jolly Fox nightclub in which Charles Dunn was beaten and arrested. The jury awarded compensatory and punitive damages in favor of Dunn and against Overground but not Goodman, and Overground brings this appeal from the trial court’s denial of its motion for a new trial.

The record reveals that Charles Dunn (hereinafter appellee) and a friend, Keith Wigley, were patrons at The Jolly Fox on the night of November 2, 1982 and had been drinking heavily. Ricky Langford, an officer of Overground, was present at the club that evening. Although the evidence was in conflict about the exact nature of the events that transpired, the jury was authorized to believe that appellee and Wigley stepped outside for a brief time and that upon their return, the club’s manager, Goodman, set upon appellee and Wigley, striking appellee on the head with a flashlight and knocking him to the floor and then dragging appellee and Wigley from the club into the parking lot and holding them spread-eagled over a car, pounding appellee’s head on the car hood, until the police arrived. Based on Goodman’s complaint regarding the earlier conduct of appellee and Wigley, including a statement that they had been observed attempting to break into cars in the parking lot, the police arrested both appellee and Wigley and charged them with being disorderly while intoxicated. Noting appellee’s condition, the police took him to Grady Hospital, where he lapsed into a coma. Although appellee recovered, he suffered permanent residual brain damage. Trial of the charges against appellee in municipal court resulted in his acquittal.

Suit was filed originally against The Jolly Fox, Rodney Goodman, and John and Richard Doe, alleging assault and battery. A later amendment substituted Overground Atlanta, Inc., for The Jolly Fox after interrogatory answers revealed it to be the true owner of the club, and substituted several officers and shareholders for the Does. In addition, the amendment added claims for negligent hiring, negligent supervision, and malicious prosecution. The trial court granted the motion of the individual officers and shareholders for a directed verdict, and the remainder of the claims went to the jury, which was given a special verdict form, instructing it to select either joint liability (finding either for appellee and against both defendants or against appellee and in favor of both defendants) or separate liability (finding for or against Goodman or for or against appellant), and to indicate, if it found “against either or both defendants, . . . whether it was based on negligence, false imprisonment, or malicious prosecution or all three.” The jury completed the form by marking an “X” on the blank indicating it found “in favor of [appellee] and against [appellant] Overground Atlanta, Inc., in the amount of $250,000 as compensatory damages and in the amount of . . . $750,000 as punitive damages” [190]*190and indicated it had based its decision on “negligence, false imprisonment, and malicious prosecution.” Judgment was entered on the verdict, and appellant’s motion for a new trial, made on the general grounds and on the ground that the verdict was excessive, was denied.

1. Appellant contends the trial court erred by denying its motion for a new trial because the verdict assessing liability against it but not against its employee (Goodman) is inconsistent and, therefore, illegal. We disagree.

Contrary to appellant’s assertion in support of this contention, the record shows that the jury did not find in favor of defendant Goodman. The jury was given two choices as to Goodman under the “Separate Liability” heading on the verdict form: “[1]_WE, the jury, find in favor of defendant. [2]_WE, the jury, find in favor of the plaintiff and against defendant Rodney Goodman in the amount of $_as compensatory damages and in the amount of (if you find appropriate) $_as punitive damages.” Neither of these boxes was checked. Consequently, although the jury did not award damages to plaintiff against defendant Goodman, it also did not find for defendant Goodman, as it was authorized to do on the verdict form.

Moreover, assuming arguendo that appellant is correct in contending that the jury’s verdict should be construed as a finding for Goodman, it does not follow that the verdict was inconsistent and therefore void and illegal. Although appellant contends that its liability was totally derivative of that of its employee, the record shows that, in addition to instructing the jury on the doctrine of respondeat superior, the trial court also charged the jury as follows:

“I charge you that the owner of a tavern open for entertainment to the public is bound to exercise ordinary care and diligence to see that one who enters as a customer is protected from the assaults and violence of those in his employ.
“In the present case the defendant owner’s duty was to exercise ordinary care and diligence to protect the plaintiff while he was at the defendant’s place of business lawfully engaged, from injury, injury either from the unsafe condition of the premises themselves, from the owner’s own conduct, or from the conduct of their employees, or injury from any vicious or improper persons who were in the room either as customers or otherwise.
“[A] customer such as the plaintiff has the right to assume that the place is reasonably safe and that the owners were exercising reasonable care and diligence to protect him while he is peaceable and lawfully engaged therein from the insults and injuries of employees of the company. ... I charge you that an employer is bound to exercise ordinary care in the selection of employees.
“Accordingly . . . the obligation of a proprietor to protect his pa[191]*191trons from injury or mistreatment includes the duty to select and retain only such employees as are fit and suitable to look after the safety and comfort of his guests and who will not commit acts of violence against them insofar as is reasonably within his power to do so.”

These principles were charged without objection. Consequently, the jury was authorized to impose liability against appellant on theories of direct as well as vicarious liability. Where a master is negligent independently of his servants, the master may be held liable even though the servant is not found to be liable. Moffett v. McCurry, 84 Ga. App. 853 (10, 11) (67 SE2d 807) (1951). Sufficient evidence was presented from which a jury could find against the appellant on a theory of direct liability. Consequently, we find no merit to appellant’s contention that it could be liable only if its employee was also liable.

Furthermore the jury was also given the following charges on the principles of joint and several liability:

“[T]he proximate cause of the injury may be two separate and distinct acts of negligence of different persons. Where two concurrent acts of negligence operate together in bringing about an injury, the person injured may recover compensation for the entire loss from either or both of the persons responsible.

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Overground Atlanta, Inc. v. Dunn
381 S.E.2d 137 (Court of Appeals of Georgia, 1989)

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Bluebook (online)
381 S.E.2d 137, 191 Ga. App. 188, 1989 Ga. App. LEXIS 494, Counsel Stack Legal Research, https://law.counselstack.com/opinion/overground-atlanta-inc-v-dunn-gactapp-1989.