HJ Russell & Co. v. Jones

• Decision Date: 08 June 2001
• Docket Number: No. A01A0142.,A01A0142.
• Citation: 550 S.E.2d 450,250 Ga. App. 28
• Court: Georgia Court of Appeals
• Parties: H.J. RUSSELL & COMPANY v. JONES.

550 S.E.2d 450

250 Ga. App. 28

H.J. RUSSELL & COMPANY v. JONES.

No. A01A0142.

Court of Appeals of Georgia.

June 8, 2001.

Smith, Gambrell & Russell, David M. Brown, Lisa L. Ballentine, Tracie Y. Johnson, Atlanta, for appellant.

Blackburn, Walther & Sloan, Donna C. Sloan, Duluth, Samuel P. Westmoreland, Hattiesburg, MS, for appellee.

JOHNSON, Presiding Judge.

A Fulton County jury found for Regina Jones and against H.J. Russell & Company in connection with H.J. Russell's supervision and retention of employee Dwight Brown. On appeal, H.J. Russell claims that the trial court erred in denying its motion for a directed verdict and that the evidence does not support the verdict. We disagree and affirm.

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.¹ "Where a jury returns a verdict and it has the approval of the trial judge, the same must be affirmed on appeal if there is any evidence to support it as the jurors are the sole and exclusive judges of the weight and credit given the evidence."²

Viewed in the light most favorable to support the verdict, the evidence shows that Jones was hired by H.J. Russell in June 1994 as an on-site property manager. Jones first met Brown when she went to the H.J. Russell main office to pick up some documents from her supervisor. He approached her and pulled up his pants so that it showed the outline of his penis. Brown grabbed her around the waist and looked to see if she had a wedding band. Jones told Brown that she was married; he said damn, put his hands in his pockets, and walked away. Brown had numerous other encounters with Jones in which he would touch her, use inappropriate language, and pull up the crotch of his pants. When Jones introduced Brown to her daughter, Brown told Jones's daughter she was a "fine young thing," and raised up his pants to show the outline of his penis.

Brown became Jones's direct supervisor in April or May 1995. After July 1995, Brown and Jones walked through the property she was managing; Jones remarked that her toes hurt from the walk, and Brown said, "I'll suck them toes for you." In August 1995, Brown became angry when Jones refused to meet with him after office hours. In October 1995, when asking Jones to have a birthday drink with him, he stared at her, put his hand on his penis, and rubbed it through his clothes. In January 1996, when Jones was using a photocopy machine, Brown rubbed his penis against her behind as he passed, even though there was room for him to pass without touching her.

Jones first reported Brown's unwelcome conduct to her supervisor in the latter part of 1994. In August 1995, she met with H.J. Russell vice president Jerome Russell about Brown's conduct. Russell referred Jones to the human resources manager, and Jones discussed Brown's behavior in detail with her. The human resources manager asked Jones to put her complaints about Brown in writing, and Jones submitted a memorandum outlining three of the incidents with Brown.

In response to Jones's complaints, H.J. Russell removed Brown as Jones's direct supervisor in late September or early October 1995 and placed a letter of reprimand in his file. In January 1996, Brown was promoted to a position where he had authority over Jones's immediate supervisor and the company's other regional managers. After his promotion, and during a break in a company-wide meeting of property managers, Brown walked by Jones and told her, "I'm still here." Jones resigned in February 1996 and told the human resources director that she was leaving the company because of Brown.

The evidence also shows a history of inappropriate activity by Brown in connection with other female employees of H.J. Russell. He made inappropriate comments to Candice Russell, a regional property manager. Brown told a female employee at the main office that she should continue wearing short skirts. Brown offered money to another regional property manager if she would "be" with him. He told a female employee working under him that, "I'd like to have some of that," while pointing at the employee's crotch.

In a special interrogatories and verdict form, a Fulton County jury found that H.J. Russell (1) negligently retained or supervised its employee Brown, and (2) such negligent retention or supervision of Brown was wilful, wanton or malicious, and directed toward Jones. "A cause of action for negligence against an employer may be stated if the employer, in the exercise of reasonable care, should have known of an employee's reputation for sexual harassment and that it was foreseeable that the employee would engage in sexual harassment of a fellow employee but he was continued in his employment."³ The evidence authorized the jury's finding that H.J. Russell had been negligent in its supervision or retention of Brown.

H.J. Russell argues that because Jones proved no physical or pecuniary injury, she was entitled to recover only for injury to peace and happiness under OCGA § 51-12-6 and that the evidence presented would not authorize a damage award. H.J. Russell further claims that even admitting for purposes of argument that it was negligent in supervising Brown, the evidence does not authorize a finding that its actions were willful, wanton or malicious, and directed toward Jones. We disagree.

Negligent conduct, without more, will not support a recovery for emotional distress.⁴ Damages are generally not available for mental pain, suffering, or emotional distress unless accompanied by physical or pecuniary loss⁵ or the result of malicious, wilful, and wanton action directed at the complainant.⁶ Because Jones did not show physical damage or pecuniary loss, we agree with H.J. Russell that the case presented here would allow only for a recovery of damages to her peace and happiness as the result of malicious, wilful, and wanton action directed at the complainant. Wilful and wanton conduct is conduct which shows "that entire absence of care which would raise the presumption of conscious indifference, or that with reckless indifference, the person acted with actual or imputed knowledge that the inevitable or probable consequences of his conduct would be to inflict injury."⁷ H.J. Russell was specifically found to have engaged in wilful, wanton or malicious conduct by...