TGM Ashley Lakes, Inc. v. Jennings, No. A03A1401.

• Citation: 264 Ga. App. 456,590 S.E.2d 807
• Decision Date: 01 December 2003
• Docket Number: No. A03A1401.
• Parties: TGM ASHLEY LAKES, INC. et al. v. JENNINGS et al.
• Court: Georgia Court of Appeals

590 S.E.2d 807

264 Ga. App. 456

TGM ASHLEY LAKES, INC. et al. v. JENNINGS et al.

No. A03A1401.

Court of Appeals of Georgia.

December 1, 2003.

Weinberg, Wheeler, Hudgins, Gunn & Dial, Earl W. Gunn, John C. Bonnie, Nancy G. Cook, Atlanta, for appellants.

Matthews & Steel, John D. Steel, Charles A. Mathis, Jr., Douglas P. McManamy, Atlanta, for appellees. ADAMS, Judge.

This is an appeal by the defendants from a final judgment entered in a wrongful death action. After review, we find no error mandating a new trial and affirm.

Danielle Jennings was strangled to death in her own apartment by a maintenance employee of TGM Associates, L.P., her landlord. Subsequently, Phillip and Sherry Jennings, as the co-administrators of their daughter's estate, as the next friends of Tristan Jennings (the decedent's minor son), and as her surviving parents, sued TGM Ashley Lakes, Inc., TGM Associates, L.P., Maria Caruthers, and Beverly Glover.

Ashley Lakes is an apartment complex located in Gwinnett County consisting of 240 units and 12 buildings. At the time of the murder, TGM Ashley Lakes, Inc. owned the apartment complex; TGM Associates, L.P. was the management company; Caruthers was the property manager; and Glover was the leasing manager. The Jenningses brought claims for negligent hiring and retention, failure to provide adequate security and failure to warn, negligence, nuisance, and wrongful death. Claiming that the conduct of the defendants evidenced a wilful and wanton disregard for the safety of others, they sought punitive damages. Following trial, the jury returned a verdict in excess of $13 million for wrongful death and for pain and suffering. The jury also awarded punitive damages of $2.5 million, an amount later reduced to $250,000 based upon the jury's finding that there was no specific intent to harm. Following the jury verdict, entry of judgment, and the denial of the motion for new trial, TGM and the other defendants (collectively "TGM") filed this appeal alleging seven claims of error.

When viewed in the light most favorable to the verdict, the evidence showed that Danielle Jennings, her boyfriend, and her two-year-old son, Tristan, moved into the Ashley Lakes apartment complex in November 1998. On March 15, 1999, Jennings was found strangled to death in her apartment. Approximately six months earlier, in September 1998, the apartment complex had hired Calvin Oliver, a convicted felon and recidivist, as a maintenance worker and gave him full access to all the residents' keys. On the day of the murder, Oliver entered Jennings' apartment while she was at work and killed her when she came home at lunchtime. He was later arrested and convicted for the victim's murder and the burglary of her apartment.

Glover, the leasing manager, had recommended Oliver for employment as a maintenance worker. Although Oliver told Glover that he had been in trouble with the law and had been in jail, Glover did not check into his criminal history or disclose that information to her supervisors. In fact, Oliver had spent most of his adult life in prison or on parole. He had felony convictions for rape, armed robbery, robbery, robbery by force, larceny, credit card theft, and at least three residential burglaries. Oliver was also the subject of an outstanding arrest warrant for a "failure to appear" in a burglary case involving the theft of personal checks. Caruthers admitted that given his background, Oliver was not a suitable employee.

It is undisputed that TGM never attempted to determine whether Oliver had any prior criminal convictions. Despite knowing that another TGM region required criminal background checks on prospective employees, Caruthers did nothing of this nature. Instead, Caruthers, who was directly involved in the hiring decision, testified that she wrote "N/A, not applicable" next to the space for criminal history check on Oliver's employment paperwork that she sent to TGM's office in New York. TGM also failed to obtain three letters of reference for character and work experience required by TGM's hiring policies.

Donna Destefano, the TGM regional manager then responsible for Ashley Lakes, admitted that the TGM employment application itself was flawed and did not accomplish the goal of determining whether a potential employee had been convicted of a crime. She conceded that the property manager, district manager, and regional manager did not do their respective jobs in the process of hiring Oliver. She admitted that TGM violated its own policies on obtaining and checking references, which, if followed, would have prevented his hiring.

Between June 1998 and March 1999, key control policies were routinely violated on a daily basis, and there were problems with missing keys to residents' apartments. Only the manager and assistant manager were supposed to have keys to the maintenance key lock box. At the time of his arrest, Oliver had keys to the maintenance lock box on both his personal key ring and his work key ring. In addition, the maintenance office had a key-duplicating machine, but no records were kept on its use. When pointedly asked whether TGM had protected the keys to people's homes, Destefano admitted that TGM had not done so.

Between the time that TGM hired Oliver and the murder, residents of Ashley Lakes reported ten or more unforced entries and burglaries of their apartments. Glover admitted knowing about certain unforced entries in late 1998 and early 1999. Likewise, Caruthers testified that she knew about this rash of unforced entries after Oliver was hired. The evidence shows that in February and early March, residents reported the theft of cash, jewelry, guns, computers, blank personal checks, and other valuables from their apartments—thefts that occurred without any sign of forced entry.

One victim discovered cash and checks missing and contacted an assistant manager in mid-December 1998. She lived on the third floor and noted no sign of forced entry, and she asked whether TGM ran criminal background checks for their workers because, "I was positive that an employee was the one that took the things." Another resident was home sick one day in mid-February and walked out to her kitchen only to discover Oliver inside her home, unbidden, ostensibly there to fix a dishwasher that was not broken. She asked him to leave, and she told management that checks were stolen from her apartment and "that I had caught Calvin Oliver in my apartment." Her roommate also had his checkbook stolen. In response, management changed her locks. On February 23, a resident of the same building where Jennings lived reported some personal checks stolen but no sign of forced entry. Caruthers forwarded reports on these incidents to TGM's New York office on or about February 24, 1999.

In late February 1999, about two weeks before the murder, Caruthers conducted a staff meeting to discuss the pattern of unforced entries and burglaries and to inform the staff that some residents suspected an employee. Oliver attended the meeting. Despite having actual knowledge about the criminal activity, management still did not undertake criminal background checks of Oliver or anyone else, and it continued to allow employees unfettered access to keys. Nor did management alert residents about the criminal activity or the ongoing breaches in security in the apartment complex.

On March 8, a week before the murder, two other residents reported that they were missing cash, with no sign of forced entry and no pending work orders or pest control service for those apartments.

1. (a) TGM contends that the trial court should have directed a verdict on the claim of negligent hiring and retention. "A directed verdict is authorized only when there is no conflict in the evidence on any material issue and the evidence introduced, with all reasonable deductions, demands a particular verdict." (Footnote omitted.) H.J. Russell & Co. v. Jones, 250 Ga.App. 28-29, 550 S.E.2d 450 (2001).

An employer breaches its duty of care by hiring an employee "who is not accustomed to act with due care." (Citations and punctuation omitted.) Henderson v. Nolting First Mtg. Corp., 184 Ga. 724, 737, 193 S.E. 347 (1937). The causation element requires showing that, given the employee's dangerous propensities, the victim's injuries should have been foreseen as the natural and probable consequence of hiring the employee. See Harvey v. McLaughlin, 198 Ga.App. 105, 107(1)(a), 400 S.E.2d 635 (1990); Edwards v. Robinson-Humphrey Co., 164 Ga.App. 876, 881(3), 298 S.E.2d 600 (1982); Henderson, 184 Ga. at 737, 193 S.E. 347. Finally, liability does not attach if the employee committed the tort in a setting or under circumstances wholly unrelated to his employment. See Harvey Freeman & Sons, Inc. v. Stanley, 189 Ga.App. 256, 257-258(1), 375 S.E.2d 261 (1988), aff'd in part and rev'd in part on separate grounds, 259 Ga. 233, 378 S.E.2d 857 (1989); Lear Siegler, Inc. v. Stegall, 184 Ga.App. 27, 28-29, 360 S.E.2d 619 (1987).

With regard to negligent hiring, the manager who recommended Oliver for employment as a maintenance worker knew that Oliver had been in trouble with the law, including time spent in jail. This simple fact raises a jury issue of whether TGM should have further inquired into Oliver's past criminal record prior to hiring him. See, e.g., Jester v. Hill, 161 Ga.App. 778, 783-784(2), 288 S.E.2d 870 (1982) (employee's poor general reputation in his industry raised jury issue regarding adequacy of pre-employment background check to discover employee's propensity for fraud). See also Harvey Freeman, 259 Ga. at 234(2), 378 S.E.2d 857 (facts raised jury issue of whether employer should have known of employee's dangerous propensities); Cunningham v. Hodges, 150 Ga.App. 827, 830(5)(B), 258 S.E.2d 631 (1979) (based on knowledge of certain prior acts, a jury could conclude employer had notice of employee's alleged propensity for negligence with fire).

The case is...