Agnes Scott Coll., Inc. v. Hartley

• Decision Date: 24 May 2018
• Docket Number: A18A0084
• Citation: 346 Ga.App. 841,816 S.E.2d 689
• Court: Georgia Court of Appeals
• Parties: AGNES SCOTT COLLEGE, INC. v. HARTLEY.

346 Ga.App. 841

816 S.E.2d 689

AGNES SCOTT COLLEGE, INC.

v.HARTLEY.

A18A0084

Court of Appeals of Georgia.

May 24, 2018

Reconsideration Denied July 13, 2018

Certiorari Denied April 15, 2019

Bendin Sumrall & Ladner, B. David Ladner, Brian D. Trulock, Alan J. Payne, for appellant.

Bell Law Firm, Lloyd N. Bell, Michael K. Watson, for appellee.

McFadden, Presiding Judge.

In the third appearance of this case before us, Agnes Scott College, Inc. challenges the trial court’s denial of its motion for judgment notwithstanding a mistrial. It argues that the trial evidence did not support the imposition of vicarious liability against it for the allegedly tortious acts of campus policeman¹ Gaetano Antinozzi. But Agnes Scott does not dispute that Antinozzi was its full-time employee acting within the course and scope of his employment when he engaged in the acts at issue. Because these facts permit the imposition of vicarious liability against Agnes Scott, we affirm.

1. Facts and procedural history.

A motion for judgment notwithstanding a mistrial

can be sustained only where there is no conflict in the evidence as to any material issue and the evidence introduced, with all reasonable deductions therefrom, shall demand a particular verdict. On appeal from a grant of a motion for judgment notwithstanding a mistrial, we view the evidence and the inferences reasonably supported by the evidence in favor of the nonmovant.

Luck v. Regions Bank , 248 Ga. App. 290, 290, 546 S.E.2d 342 (2001) (citations and punctuation omitted).

Viewed in Hartley’s favor, the trial evidence showed that in April 2009, an Agnes Scott student falsely accused Hartley of physically and sexually assaulting her on campus. Antinozzi, a full-time Agnes Scott campus policeman certified by the Georgia Peace Officer Standards and Training Council (POST-certified) investigated the accusation. Based primarily on the student’s account and in the face of medical evidence conflicting with that account, he obtained warrants for Hartley’s arrest. Hartley was arrested at her home in Tennessee and extradited to Georgia. The state ultimately dismissed the charges against Hartley without presenting them to a grand jury.

Hartley brought an action against Agnes Scott, Antinozzi, and other individual defendants in which she asserted, among other things, that Antinozzi improperly investigated the accusations against her and wrongfully obtained the arrest warrants, and that Agnes Scott was vicariously liable for these allegedly tortious acts. The defendants filed a joint motion to dismiss the complaint; in the motion, Antinozzi and the other individual defendants sought to dismiss the complaint for lack of subject matter jurisdiction due to official immunity, and Agnes Scott sought to dismiss the complaint for failure to state a claim.

The trial court denied the motion to dismiss, but on interlocutory review we reversed that decision in Agnes Scott College v. Hartley , 321 Ga. App. 74, 741 S.E.2d 199 (2013) (" Hartley I "), holding in Division 1 that Agnes Scott was entitled to immunity under the Georgia Tort Claims Act and in Division 2 that Hartley’s complaint failed to state a claim for Agnes Scott’s vicarious liability. The Supreme Court of Georgia reversed Division 1 of our opinion, holding that the Georgia Tort Claims Act provided no immunity. Hartley v. Agnes Scott College , 295 Ga. 458, 467 (2) (d), 759 S.E.2d 857 (2014) (" Hartley II "). Although the Supreme Court did not address Division 2 of our opinion, Hartley II , 295 Ga. at 460 (1) (b) n. 2, we determined on remand that Division 2 was inconsistent with the Supreme Court’s ruling. Agnes Scott College v. Hartley , 330 Ga. App. 575, 577 (2), 768 S.E.2d 767 (2015) (" Hartley III "). See generally Shadix v. Carroll County , 274 Ga. 560, 563–564 (1), 554 S.E.2d 465 (2001) (when faced with Supreme Court reversal of our opinion, our disposition on remand regarding any portion of our opinion not addressed or considered by Supreme Court must be consistent with issues addressed and considered by Supreme Court). We based that conclusion on the Supreme Court’s holding that Antinozzi was "not [a] state officer[ ] or employee[ ] under the [Georgia Tort Claims Act]," Hartley III , 330 Ga.App. at 576–577 (2), 768 S.E.2d 767 (citation and punctuation omitted), its holding that Antinozzi was "not acting for a state government entity when [he] committed the alleged torts against Hartley because, inter alia, [his] actions were not directed and controlled by any specific state government entity," id. at 577 (2), 768 S.E.2d 767 (citation and punctuation omitted), and its finding that "the complaint repeatedly alleges, and the answer admitted, that [Antinozzi’s] tortious conduct occurred while [he was] acting in the line and scope of [his] employment with [Agnes Scott]." Id. (citation and punctuation omitted). We therefore vacated Division 2 and "affirm[ed] the trial court’s denial of [Agnes Scott’s] motion to dismiss Hartley’s claim against [it] for respondeat superior." Id.

The case against Agnes Scott proceeded to trial at which both sides presented their cases,² but during jury deliberations the trial court declared a mistrial due to juror misconduct. Agnes Scott then moved for judgment notwithstanding the mistrial, arguing that it could not be held vicariously liable for Antinozzi’s acts because there had been no evidence presented at trial that Agnes Scott directed those acts. The trial court denied the motion, and we granted interlocutory review.

2. Record deficiencies.

As a preliminary matter, we note that the appellate record is incomplete. In Agnes Scott’s notice of appeal, it asked that nothing be omitted from the appellate record and stated that a transcript of the proceedings would be submitted for inclusion in the record. The trial transcript, however, is missing certain evidence that was presented to the jury. It does not include any of the exhibits that were admitted into evidence at trial, and it does not clearly reflect which portions of videotaped statements, deposition testimony, and a court hearing were played to the jury. "[I]t is critical that the certified trial transcript reviewed by an appellate court speak the truth so that the appellate court can conduct its review with the knowledge that the transcript accurately reflects what took place in the trial court[.]" State v. Nejad , 286 Ga. 695, 697 (1), 690 S.E.2d 846 (2010). Although we could remand the case to the trial court for completion of the record, see Galardi v. Steele–Inman , 259 Ga. App. 249, 249–250, 576 S.E.2d 555 (2002) (remanding case for completion of record where transcript did not include all evidence presented to jury, including portion of videotaped deposition), we will nevertheless proceed, in the interest of judicial economy and efficiency, because we can resolve the issue in this case on facts not in dispute and on the record available to us.

3. Vicarious liability.

Our resolution of this appeal turns on the applicable standard for vicarious liability. Agnes Scott argues that it cannot be held vicariously liable for Antinozzi’s acts, and therefore is entitled to judgment notwithstanding the mistrial, because there was no evidence presented at trial that it directed the allegedly tortious behavior. Hartley argues that she was not required to show that Agnes Scott directed Antinozzi’s acts, but only that it had the power to direct those acts because Antinozzi performed them in the course and scope of his employment.

As detailed below, the applicable standard depends upon the capacity in which Antinozzi was acting when he engaged in the allegedly tortious acts. The undisputed fact that Antinozzi was working full-time for Agnes Scott as a campus policeman permits a finding that he was acting solely in his capacity as Agnes Scott’s servant, subjecting Agnes Scott to vicarious liability for Antinozzi’s conduct taken within the scope and course of his employment. Agnes Scott concedes that Antinozzi acted within the scope and course of his employment. So the trial court did not err in denying the motion for judgment notwithstanding the mistrial.

(a) The applicable standard for Agnes Scott’s vicarious liability depends on the capacity in which Antinozzi was acting.

In determining the vicarious liability of Agnes Scott, a private employer, for the allegedly tortious acts of its campus policeman, Antinozzi, the "proper focus of analysis is to determine in what capacity [Antinozzi] was acting at the time the tort arose." Ambling Mgmt. Co. v. Miller , 295 Ga. 758, 761 (2), 764 S.E.2d 127 (2014). Our Supreme Court has described three possible capacities in which a privately-employed person with law enforcement powers might be acting: (1) as a servant or agent of the private employer, (2) as a "public officer," or (3) in a dual capacity as both a private servant and a public officer. Id. at 765 (3), 764 S.E.2d 127 ; see also Pounds v. Central of Ga. Ry. Co. , 142 Ga. 415, 418, 83 S.E. 96 (1914) (considering, in determining vicarious liability, whether city police officer employed by railway company was "the agent of the city exclusively; or was he the agent of the company, with superadded police powers; or was he acting in a dual capacity").

When an employee with law enforcement powers is acting in his capacity as the servant of a private employer, the employer may be held vicariously liable for torts committed while the employee was "acting within the scope of his general duties as the servant of the [employer] to arrest people who violated the law or who created disorder on [the employer’s] premises." Ambling Mgmt. Co. , 295 Ga. at 762 (2), 764 S.E.2d 127 (citing Exposition Cotton Mills v. Sanders , 143 Ga. 593, 595, 85 S.E. 747 (1915) (involving watchman authorized by private employer to arrest persons violating the law, injuring company property, or creating disorder) ). See generally Hicks v. Heard , 286 Ga. 864, 865, 692 S.E.2d 360 (2010) ("When a servant...