SECOND DIVISION BARNES, P. J., MCFADDEN and MCMILLIAN , JJ.
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. (Court of Appeals Rule 4 (b) and Rule 37 (b), February 21, 2008) http://www.gaappeals.us/rules/
March 29, 2013
In the Court of Appeals of Georgia A12A1919. TOMSIC v. MARRIOTT INTERNATIONAL, INC. et al.
MCFADDEN, Judge.
Susan J. Tomsic brought an action against Marriott International, Inc. and
Marriott’s former employee, Broderick Sumner, alleging that Sumner physically and
sexually assaulted her while giving her a massage at a hotel managed and operated
by Marriott. Pertinently, her complaint alleged that Marriott was liable for negligent
hiring and retention, premises liability, and failure to warn. (Tomsic’s claims against
Sumner are not at issue in this appeal. Likewise, although Tomsic alleged in her
complaint that Sumner’s acts of battery against her were within the scope of his
employment by Marriott, she has not argued on appeal that Marriott should be held
liable for those acts under a theory of respondeat superior, and we deem abandoned any claims of error regarding her count alleging battery.) Marriott did not file a timely
answer, but the trial court opened the default. The trial court dismissed the failure to
warn count and the case proceeded to a jury trial on the remaining counts, including
the premises liability count. After the close of evidence, the trial court granted
directed verdicts to Marriott on the remaining counts against it. Tomsic appeals.
As detailed below, we find that the trial court was authorized to open the
default, because Marriott met the conditions precedent for opening default and
presented evidence authorizing the trial court to find a proper case for opening
default. We find that the directed verdicts were proper because neither the evidence
at trial nor evidence that Tomsic argues was erroneously excluded demonstrated the
required element of causation. Finally, we find that the trial court did not err in
dismissing the failure to warn count because the relief sought in that count was
encompassed within the premises liability claim that proceeded to trial. Accordingly,
we affirm.
1. Facts and proceedings below.
On August 31, 2004, Tomsic was attending a professional conference at an
Atlanta-area hotel managed and operated by Marriott. She scheduled a massage at the
hotel spa. She contends that she began to feel unusually relaxed during the massage,
2 that she became unable to move and barely able to speak, and that the massage
therapist, Sumner, then placed his hands around her neck in a threatening manner,
bruised her body in several places, touched her breasts and genitals, forced her to
touch his naked testicles, and ejaculated into her mouth.
Tomsic originally filed an action against Marriott and Sumner to which
Marriott filed a timely answer and a motion for summary judgment. Tomsic later
dismissed that action and filed a renewal action. Marriott answered the second action
late. Marriott then filed a summary judgment motion and brief that relied on materials
that had been filed in the original action, including affidavits setting forth facts in
support of its position that it was entitled to summary judgment. The following
month, Tomsic moved for default judgment. Marriott moved to open default, and the
trial court granted the motion. Subsequently, the trial court granted Marriott’s motion
under OCGA § 9-11-12 (b) (6) to dismiss the failure to warn count.
The action proceeded to trial on Tomsic’s remaining claims against both
Marriott and Sumner, and at the close of Tomsic’s case-in-chief, Marriott moved for
directed verdict on the claims against it. The trial court initially denied that motion,
but it reconsidered during the charge conference after the close of evidence and
granted directed verdicts to Marriott on both claims. (This divested the trial court of
3 venue in the action against Sumner, see OCGA § 9-10-31 (d), and consequently the
jury did not consider the case against him. ) The trial court subsequently entered an
order granting the directed verdicts to Marriott and stated that the order was a final
judgment in the case.
2. Opening the default.
Tomsic argues that the trial court erred in opening the default. We disagree.
The case went into default when Marriott filed its untimely answer and failed
to pay costs to open the default as a matter of right. See OCGA § 9-11-55 (a).
However,
OCGA § 9-11-55 (b) allows a default to be opened on one of three grounds: providential cause, excusable neglect, or a proper case. As a condition precedent to the trial court’s consideration of whether any of the three grounds has been met, the defendant must show compliance with four statutory conditions by (1) making a showing under oath, (2) setting up a meritorious defense, (3) offering to plead instanter, and (4) announcing ready to proceed with trial.
(Citations omitted). Strader v. Palladian Enterprises, 312 Ga. App. 646, 648 (719
SE2d 541) (2011). Our function in “reviewing a trial court’s grant of a motion to open
default is to determine whether all the conditions set forth in OCGA § 9-11-55 have
been met and, if so, whether the trial court abused its discretion based on the facts
4 peculiar to each case.” Majestic Homes v. Sierra Dev. Corp., 211 Ga. App. 223, 224
(1) (438 SE2d 686) (1993).
In support of its motion to open default, Marriott submitted the affidavit of an
in-house paralegal, who testified that she mistakenly informed Marriott’s outside
counsel that Tomsic had served her renewal action on Marriott on April 25 when in
fact it had been served on April 17. She stated that she made this mistake because she
“misread the notice of the suit and service date as the date that it was received from
the registered agent and sent to the claims department for Marriott.” She did not
realize her error until Tomsic filed her motion for default.
Marriott also submitted the affidavit of its assistant secretary who, having
reviewed the complaint and Marriott’s answer and motion for summary judgment,
declared that “[t]he [a]nswer as pled sets forth a meritorious defense to [Tomsic’s]
allegations and is now made under oath by this [a]ffidavit.” But his testimony was
founded on information or belief: “the affirmative defenses and factual statements
including admissions or denials of fact contained [in those documents] are true and
correct to the best of [my] knowledge.”
The assistant secretary also testified that Marriott was ready to plead instanter
and was ready to proceed to trial.
5 In an unnotarized statement, Marriott’s outside counsel described obtaining the
incorrect date of service from Marriott’s paralegal and not learning that Marriott was
in default until he received Tomsic’s motion for default judgment. He stated that, had
he known of the default when he filed the late answer, he would have tendered costs
to the clerk to open the default as a matter of right. He also stated that he had taken
and reviewed testimony of various witnesses and that the brief supporting Marriott’s
summary judgment motion established its legal defenses, including “the fact that
Marriott did not have any prior knowledge of incidents sufficiently similar to the
incident in question to put it on notice of a potential hazard about which it should
warn or somehow protect [Tomsic].”
Marriott’s motion to open default also cited to the evidence filed in support of
its summary judgment motion in the original action.
a. Conditions precedent.
Tomsic claims that Marriott did not meet the condition precedent of showing,
under oath, that it had a meritorious defense. To meet this condition, a defendant must
set forth facts that show the existence of the essential elements of its defense. Lucas
v. Integrated Health Svcs., 268 Ga. App. 306, 310 (2) (601 SE2d 701) (2004).
Although these facts need not be set forth in great detail, the trial court “must . . .
6 have sufficient facts before it to determine if a meritorious defense is factually raised
so that the judge can exercise discretion.” (Citation omitted.) Lucas, 268 Ga. App. at
310 (2).
We agree with Tomsic that the affidavits of Marriott’s paralegal and assistant
secretary did not establish a meritorious defense. The paralegal’s affidavit did not
address that issue at all. The assistant secretary’s affidavit also contained no facts
pertaining to Marriott’s defense. Although the assistant secretary sought to verify
Marriott’s previously-filed answer by stating that he incorporated under oath the
answer’s contents, cf. Strader, 312 Ga. App. at 646 (allowing party to point to facts
in verified answer to set forth meritorious defense in support of motion to open
default), the assistant secretary qualified this statement as based on his “information
or belief . . . to the best of [his] knowledge.” Such language alone did not satisfy the
requirement that an affidavit or verification be made with personal knowledge, and
the contents of the affidavit did not otherwise reflect that the assistant secretary had
personal knowledge about facts establishing Marriott’s meritorious defense. Compare
C. Brown Trucking Co. v. Henderson, 305 Ga. App. 873, 875 (1) (700 SE2d 882)
(2010) with Hansen v. Mt. Yonah Scenic Estates Club, 227 Ga. App. 258, 259 (488
SE2d 732) (1997).
7 We also agree with Tomsic that the unnotarized statement of its outside counsel
did not satisfy the condition that the meritorious defense be set forth under oath.
Because that document was not notarized, it was not a valid affidavit. Fredrick v.
Hinkle, 297 Ga. App. 101, 103 (1) (676 SE2d 415) (2009). See generally Harris v.
Murray, 233 Ga. App. 661, 664 (3) (504 SE2d 736) (1998) (“In order to make an
affidavit, there must be present the officer, the affiant, and the paper, and there must
be something done which amounts to the administration of an oath.”) (citation and
punctuation omitted). The trial court erred in finding that this statement satisfied
Marriott’s obligation to demonstrate a meritorious defense.
Nevertheless, we find that Marriott did establish its meritorious defense under
oath, satisfying that condition precedent for opening default. When Marriott moved
to open the default, it had already filed its summary judgment motion citing to sworn
testimony, including the affidavit testimony of a Marriott employee and the
deposition testimony of Marriott’s 30 (b) (6) witness, that it argued entitled it to
judgment as a matter of law. These sworn statements contained specific facts showing
that, if relief from default was granted, the outcome of the suit might be different
from the result if the default stood, which is the definition of “meritorious defense”
in this context. See Exxon Corp. v. Thomason, 269 Ga. 761 (1) (504 SE2d 676)
8 (1998). Marriott referenced these summary judgment materials in support of its
motion to open the default.
“The rule permitting opening of default is remedial in nature and should be
liberally applied, for default judgment is a drastic sanction that should be invoked
only in extreme situations.” (Citation and punctuation omitted.) Ford v. St. Francis
Hosp., 227 Ga. App. 823, 826 (1) (490 SE2d 415) (1997). Under these unusual
circumstances, where at the time of its motion to open default Marriott already had
submitted to the trial court sworn witness testimony containing facts establishing its
meritorious defense, it would make no sense to impose the drastic sanction of default
on the basis that the documents establishing that meritorious defense were originally
filed for a different purpose.
b. Finding of a proper case for opening default.
The trial court determined that Marriott had established a proper case allowing
the court to open the default under OCGA § 9-11-55 (b). In making this
determination, the trial court pointed to evidence that Marriott’s outside counsel
received incorrect information about the service date from Marriott’s paralegal, who
had misread that date, and that at the relevant time no return of service had been filed
with the court. See OCGA § 9-11-4 (h).
9 In Pleats, Inc. v. OSMA, 211 Ga. App. 643, 643-644 (1) (440 SE2d 214)
(1993), which presented similar circumstances to those here, we affirmed the trial
court’s opening of default. We held:
Regarding appellee’s claim of mistake as to fact as to service date, generally in cases concerning default judgments this court will not substitute its judgment for that of the trial judge who had the opportunity to determine witness credibility and/or to weigh the evidence before it. Moreover, excusable neglect and proper cause cannot be determined by fixed rules, but rather must be decided based on the operative circumstances in each particular case. This determination will not be reversed by an appellate court absent a manifest abuse of discretion.
(Citations omitted.) Id. at 644 (1). Citing Georgia’s policy disfavoring default, we
further held that, “[g]enerally, a default should be set aside where the defendant acts
with reasonable promptness and alleges a meritorious defense.” (Citation omitted.)
Id. Noting that the appellant “failed to establish that appellee did not act with
reasonable promptness after receiving default notice” and “failed to show that it
sustained unique harm or suffered specific prejudice from the opening of the default,”
we found no manifest abuse of discretion in the trial court’s decision to open default
in Pleats. Id. See also Henderson v. Quadramed Corp., 260 Ga. App. 680, 682 (2)
(580 SE2d 542) (2003) (trial court did not abuse discretion in opening default where
10 answer was untimely because employee to whom registered agent sent complaint had
left defendant company and letter had remained unopened for five weeks); Kaylor v.
Atwell, 251 Ga. App. 270, 272 (1) (553 SE2d 868) (2001) (trial court did not abuse
discretion in opening default where answer was untimely due to defendant’s
mathematical miscalculation).
Here, as in Pleats, Marriott provided its outside counsel with an incorrect
service date, Tomsic failed to timely file a return of service with the trial court,
Marriott filed an answer that it believed at the time to be timely, Marriott promptly
sought to open default upon learning of the mistake, and there is no indication that
Tomsic sustained unique harm or specific prejudice from opening the default.
Considering the remedial nature of the rule permitting the opening of a default and
Georgia’s policy of liberally applying that rule to permit cases to be determined on
their merits, we find that the trial court did not abuse its discretion in opening the
default. See Pleats, 211 Ga. App. at 643-644 (1).
3. Directed verdicts.
Tomsic argues that the trial court erred in granting directed verdicts to Marriott
on her claims for premises liability and negligent hiring and retention. A directed
verdict is authorized “[i]f there is no conflict in the evidence as to any material issue
11 and the evidence introduced, with all reasonable deductions therefrom, shall demand
a particular verdict.” OCGA § 9-11-50 (a). “But where any evidence or some
evidence exists to support a jury issue on the non-movant’s claims, a directed verdict
is improper. This Court conducts a de novo review on appeal from the grant of a
directed verdict, and we will uphold a directed verdict only if all of the evidence
demands it.” (Citations and punctuation omitted.) Sun Nurseries v. Lake Erma, 316
Ga. App. 832, 835 (730 SE2d 556) (2012). As detailed below, even considering
evidence that Tomsic argues the trial court erroneously excluded from trial, we find
that the evidence demanded directed verdicts on the negligent hiring and retention
claim and on the premises liability claim.
a. Negligent hiring and retention.
“[A]n employer may be liable for hiring or retaining an employee the employer
knows or in the course of ordinary care should have known was not suited for the
particular employment.” (Citations and footnote omitted.) Munroe v. Universal
Health Sys., 277 Ga. 861, 862 (1) (596 SE2d 604) (2004). See OCGA § 34-7-20.
“However, absent a causal connection between the employee’s particular
incompetency for the job and the injury sustained by the plaintiff, the defendant
employer is not liable to the plaintiff for hiring an employee with that particular
12 incompetency.” (Citation omitted.) Munroe, 277 Ga. at 862-863 (1). Our Supreme
Court has rejected a “‘but for’ argument that [an employer] is liable for the negligent
hiring or retention of [an employee] solely because his employment by [the employer]
provided [the employee] with the access or opportunity to injure [the plaintiff].” Id.
There must be “sufficient evidence to establish that the employer reasonably knew or
should have known of an employee’s ‘tendencies’ to engage in certain behavior
relevant to the injuries allegedly incurred by the plaintiff.” (Citation omitted.) Id. at
863 (1). See also Kelley v. Baker Protective Svcs., 198 Ga. App. 378, 379 (401 SE2d
585) (1991) (“For [an employer] to be negligent in hiring and retaining any employee
with violent and criminal propensities, it would be necessary that [the employer]
knew or should have known of those dangerous propensities alleged to have resulted
in [the plaintiff’s injury].”) (citations and punctuation omitted.)
The evidence, viewed most favorably to Tomsic, showed that she incurred
injuries when, during her massage, Sumner bruised her, threatened her, and sexually
assaulted her. Tomsic also introduced expert evidence that her experience of feeling
unusually relaxed and being unable to move or speak was consistent with the
transdermal administration of certain types of drugs. But Tomsic did not introduce
evidence to show that Marriott knew or reasonably should have known that Sumner
13 had a tendency to engage in behavior relevant to Tomsic’s injuries. Marriott had no
record of any other complaints against Sumner while he was working at the hotel,
and, as explained below, the evidence does not support Tomsic’s claims that her
injuries were caused by Marriott’s failure to adequately investigate Sumner’s criminal
record, employment history, or credentials.
i. Criminal record.
The evidence showed that, before hiring Sumner, Marriott checked to see if he
had any felony convictions and found none. Marriott did not, however, check for
misdemeanor convictions (except in one county, which Marriott’s human resources
director said was done by mistake), nor did it search for police incident reports on
Sumner. Marriott’s human resources director testified that Marriott did not look for
misdemeanor convictions in the hiring process because the number of different types
of misdemeanors in Georgia and their “varying levels and degrees” rendered
information about misdemeanor convictions of limited relevance to hiring decisions.
Indeed, an investigator for Tomsic testified that incident reports could be obtained
only by contacting directly, by telephone or in person, each county or municipality
that held the reports; he further testified that his effort to obtain reports from one such
jurisdiction (Cobb County) took several hours.
14 Tomsic points to evidence that, had Marriott performed these additional
searches, it could have discovered that Sumner previously had pled guilty to the
misdemeanor of public drunkenness in violation of OCGA § 16-11-41 (a), and that
Cobb County had on file a 1994 incident report related to a suicide attempt by
Sumner, a 2000 incident report related to an accusation of simple assault made by
Sumner’s former girlfriend, and a 2002 incident report for a domestic dispute
involving the former girlfriend.
For purposes of our analysis we do not need to consider whether or not it
would have been reasonable for Marriott to incur the time and expense of searching
for misdemeanor convictions and police incident reports on its massage therapists
applicants, although we strongly question whether such steps would have been
reasonable in this case. But even if Tomsic presented a fact question on this point, the
information that Tomsic argues these measures would have uncovered about Sumner
does not demonstrate that he had “‘tendencies’ or propensities that [he] could cause
the type of harm sustained by [Tomsic].” Munroe, 277 Ga. at 863 (1). Sumner’s
misdemeanor conviction for public drunkenness and his suicide attempt did not
demonstrate that he had a propensity to inflict personal harm upon a massage client.
See Worstell Parking v. Aisida, 212 Ga. App. 605, 606-607 (2) (442 SE2d 469)
15 (1994) (although employee indicated on application that he had been arrested, and
record showed that he had been convicted of several controlled substances offenses,
record was devoid of any evidence that he had any propensity toward violence or that
employer knew of that propensity). The 2002 “domestic dispute” incident report
reflects only that Sumner’s former girlfriend asked an officer to stand by while
Sumner moved some items out of their house. This report, which Tomsic contends
Marriott should have discovered, contains no facts indicating that Sumner had a
propensity to harm another. See Munroe, 277 Ga. at 866 (2).
The 2000 “simple assault” incident report presents a separate issue. It describes
a physical attack by Sumner on his former girlfriend. The girlfriend reported to the
police that, a few days earlier, Sumner had grown angry when she confronted him
about driving while intoxicated. The girlfriend stated that Sumner had grabbed and
twisted her arms, had grabbed the back of her head and dragged her across a room,
had held her by the throat and thrown her against a wall, had thrown her on a bed and
begun to choke her, had pulled the telephone out of the wall, and punched two holes
in the wall. The girlfriend also stated that this was the “first time in the nine years she
[had] known him that he [had] become violent.” The incident report does not reflect
16 that the girlfriend pressed charges, that Sumner was arrested, or any police
investigation into or other follow-up of this incident.
While the 2000 incident report shows that Sumner had been accused of acts of
domestic violence, it does not indicate that he had tendencies to engage in behavior
relevant to the injuries that Tomsic incurred. The incident report depicts Sumner
physically assaulting a domestic partner in an unprecedented, intoxicated rage, while
Tomsic describes Sumner taking advantage of the circumstances of a massage in a
calculated and premeditated fashion to sexually assault and bruise a client, employing
a drug of some sort to facilitate the assault. Although both episodes involve an
element of violence, they are dramatically distinct in most other respects. The
accusations against Sumner contained in the 2000 incident report do not “involve
conduct showing that [Sumner] had a tendency to engage in the type of tortious
conduct which [Tomsic] claims caused [her] injury.” (Citation omitted.) Poole v. N.
Georgia Conference of the Methodist Church, 273 Ga. App. 536, 540 (615 SE2d 604)
(2005). See also Drury v. Harris Ventures, 302 Ga. App. 545, 548 (2) (691 SE2d 356)
(2010) (relevant question is whether employer knew or should have known that
employee hired and retained to perform specific duties involving personal contact
17 with plaintiff was unsuitable for that position because he posed a reasonably
foreseeable risk of personal harm to persons in plaintiff’s position).
ii. Employment history and credentials.
Tomsic also argues that Marriott did not adequately investigate Sumner’s
employment history. The evidence, viewed most favorably to Tomsic, showed that
Sumner had attended massage school and was certified to give massages. His
application for a Cobb County business license was still pending when he first began
to give massages in his employment with Marriott, but he did have his business
license when he gave the massage to Tomsic. The evidence also showed that, on his
employment application with Marriott, Sumner misrepresented the extent of his
experience giving massages. Finally, there was evidence that Sumner told a former
girlfriend that, while he was working at another spa, a client had wrongfully accused
him of touching her inappropriately during a massage.
The fact that Marriott allowed Sumner to give massages before he obtained his
business license is irrelevant to whether it knew or should have known that Sumner
had any propensities to inflict harm. Likewise, the fact that he overstated his massage
experience on his application does not show that Marriott knew or should have
known of any such propensities. See Drury, 302 Ga. App. at 548-549 (2) (employer
18 did not know, nor reasonably should have known, of employee’s mental illness or
tendency toward violence if untreated, where employee concealed his diagnosis and
treatment to obtain employment); Poole, 273 Ga. App. at 539 (even if employer had
learned that pastor was inadequately trained as a counselor and has misused his
position at prior churches to take advantage of parishioners and counseled persons,
as a matter of law this information would not have placed employer on notice that it
was reasonably foreseeable from pastor’s tendencies that he would enter into affair
with parishioner and lie about it to parishioner’s husband during marriage
counseling).
Regarding the alleged incident at the other spa, Tomsic offered no evidence
that Marriott had any means of obtaining this information from the other spa or that
Sumner’s employment file with the other spa even contained this information. The
other spa later rehired Sumner.
In summary, there is no evidence that Marriott disregarded indications of a
propensity in Sumner to engage in behavior relevant to the injuries sustained by
Tomsic. Consequently, no fact question remained as to whether Marriott breached its
“duty to exercise ordinary care to avoid hiring [or retaining] an employee who posed
19 a reasonable foreseeable risk of inflicting personal harm on others.” Munroe, 277 Ga.
at 866 (2). The trial court properly granted the directed verdict on this claim.
b. Premises liability.
“OCGA § 51-3-1 requires an occupier of land to exercise ordinary care in
keeping the premises safe for invitees. This duty extends to protecting invitees from
foreseeable criminal attacks by third parties.” (Citations omitted.) Westmoreland v.
Williams, 292 Ga. App. 359, 361 (665 SE2d 30) (2008). As the operator and manager
of the hotel, Marriott is subject to this Code section. Id. at 361 (1). And, because his
alleged actions against Tomsic were outside the scope of his employment, Sumner is
considered a third party for the purposes of premises liability for forseeable criminal
attacks. See Dowdell v. The Krystal Co., 291 Ga. App. 469, 472 (2) (662 SE2d 150)
(2008).
If a business proprietor “has reason to anticipate a criminal act, he or she then
has a duty to exercise ordinary care to guard against injury from dangerous
characters.” (Citation and punctuation omitted.) Lau’s Corp. v. Haskins, 261 Ga. 491,
492 (1) (405 SE2d 474) (1991). “Accordingly, the incident causing the injury must
be substantially similar in type to . . . previous criminal activities occurring on or near
the premises so that a reasonable person would take ordinary precautions to protect
20 his or her customers . . . against the risk posed by that type of activity.” (Citation
omitted.) Sturbridge Partners v. Walker, 267 Ga. 785, 786 (482 SE2d 339) (1997).
At trial, Tomsic unsuccessfully sought to admit deposition testimony from a witness
that she had informed Marriott that a male massage therapist had touched her nipples
during a massage at the hotel spa. We agree with Tomsic that the trial court should
have allowed this evidence, which showed that Marriott had been made aware that
its hiring procedures had not screened out a massage therapist who inappropriately
touched a client. See Walker v. Aderhold Props., 303 Ga. App. 710, 712 (1) (694
SE2d 119) (2010) (“All that is required [to establish a duty] is that the prior incident
be sufficient to attract the landlord’s attention to the dangerous condition which
resulted in the litigated incident.”) (citation omitted). This evidence created a question
of fact as to whether Marriott had the duty to exercise ordinary care to safeguard its
customers against the foreseeable risk of employing such an unethical massage
therapist. See Sturbridge Partners, 267 Ga. at 787.
Nevertheless, the existence of a jury question on Marriott’s duty does not
preclude the grant of a directed verdict to Marriott on the premises liability claim.
Tomsic was also required to show a legally attributable causal connection between
Marriott’s conduct and her injury. See Walker, 303 Ga. App. at 712 (1); Niles v. Bd.
21 of Regents of the Univ. Sys. of Georgia, 222 Ga. App. 59, 61 (2) (473 SE2d 173)
(1996). Tomsic alleged that Marriott breached its duty by not adequately investigating
Sumner’s background before hiring him and by not warning her that Sumner had not
been adequately investigated. Consequently, like her negligent hiring and retention
claim, Tomsic’s premises liability claim required that she show a causal connection
between Sumner’s background and the injuries she sustained. Just as the evidence did
not establish this element of causation in the negligent hiring and retention claim, it
also did not establish causation in the premises liability claim, and for that reason the
trial court did not err in granting a directed verdict on that claim.
c. Excluded polygraph evidence.
Tomsic argues that the trial court erred in excluding expert testimony from a
psychologist that she sought to introduce regarding the results of a polygraph test.
Even if the court should have allowed this evidence, but see Munford, Inc. v. Anglin,
174 Ga. App. 290, 294 (3) (329 SE2d 526) (1985), the polygraph evidence pertains
to the credibility of Tomsic’s account of what happened during the massage. But, for
purposes of reviewing the grant of directed verdicts, we already have viewed
Tomsic’s account in the light most favorable to her. Tomsic offers no argument for
22 why the excluded polygraph evidence should have precluded the directed verdicts,
and we find none.
4. Dismissal of failure to warn claim.
Tomsic argues that the trial court erred in dismissing, under OCGA § 9-11-12
(b) (6), her claim that Marriott breached a duty to warn her that it did not perform
adequate due diligence in hiring its massage therapists. It is true that “if, within the
framework of the complaint, evidence may be introduced which will sustain a grant
of the relief sought by the claimant, the complaint is sufficient and a motion to
dismiss should be denied.” (Citation and punctuation omitted.) Infinite Energy v.
Pardue, 310 Ga. App. 355, 355-356 (1) (713 SE2d 456) (2011). But the failure to
warn that Tomsic alleged in her complaint was not a separate basis for liability but
rather a means by which Marriott might have breached a duty of care it owed under
a theory of premises liability. See Crapp v. Elberta Crate & Box Co., 223 Ga. App.
902, 904-905 (479 SE2d 101) (1996) (describing defendant’s failure to warn as
breach of its duty of ordinary care in premises liability action); see also Lau’s Corp.,
261 Ga. at 492-493 (1), (2) (analyzing claim of failure to warn within framework of
premises liability cause of action); Benson-Jones v. Sysco Food Svcs. of Atlanta, 287
Ga. App. 579, 584 (3) (651 SE2d 839) (2007) (noting, in analysis of premises liability
23 claim, that “[a]s a general rule, an owner or occupier of land is liable to invitees for
injuries they sustain as a result of his failure to warn them of dangers which he was
aware of, or in the exercise of reasonable care should have known”) (citation and
punctuation omitted). Given that the failure to warn claim is subsumed within the
premises liability claim, which proceeded to trial, we find no error in the trial court’s
pre-trial dismissal of the failure to warn claim.
Judgment affirmed. Barnes, P. J., concurs. McMillian, J., concurs fully in
Division 1 and concurs in the judgment only as to Divisions 2 and 3.