Avis Rent, LLC v. Smith. Csyg, Inc.

• Court: Georgia Court of Appeals
• Citation: Avis Rent, LLC v. Smith. Csyg, Inc., 353 Ga.App. 24, 836 S.E.2d 100 (Ga. App. 2019)
• Decision Date: 31 October 2019
• Docket Number: A19A1504,A19A1503
• Parties: AVIS RENT A CAR SYSTEM, LLC et al. v. SMITH. CSYG, Inc. et al. v. Smith.

353 Ga.App. 24

836 S.E.2d 100

AVIS RENT A CAR SYSTEM, LLC et al.

v.SMITH.

CSYG, Inc. et al.

v.Smith.

A19A1503

A19A1504

Court of Appeals of Georgia.

October 31, 2019

Holland & Knight, Laurie W. Daniel, Matthew D. Friedlander; Lewis Brisbois Bisgaard & Smith, Brantley C. Rowlen, V. Ashley Waller, Jason P. Wright; Swift Currie McGhee & Hiers, William T. Casey, Jr.; Monica L. Wingler, for appellants (case no. A19A1503). Downey & Cleveland, G. Lee Welborn, for appellants (case no. A19A1504). Bondurant Mixson & Elmore, Michael B. Terry, Naveen Ramachandrappa, Amanda K. Seals; The Law Offices of Michael L. Neff, P.C., Michael L. Neff, D. Dwayne Adams, Susan M. Cremer, T. Shane Peagler; Gray Rust St. Amand Moffett & Brieske, Michael D. St. Amand, for Smith. Brittany B. Wilson, amicus curiae (case no. A19A1503).

Adrienne Danielle Smith was seriously injured when she was struck by a sport utility vehicle that had been stolen from an Avis car rental lot in downtown Atlanta. She sued Avis Rent A Car System, LLC, Avis Budget Group, Inc., and Peter Duca, a regional security manager for Avis (together, "Avis"), as well as CSYG, Inc., the operator of the downtown Avis location, and Yonas Gebremichael, CSYG's owner. Smith also sued Byron Perry, the former CSYG employee who stole the vehicle.

After a 10-day trial, the jury returned a $47 million verdict in favor of Smith apportioned among the defendants. Avis filed a motion for judgment notwithstanding the verdict or, in the alternative, for new trial, Perry filed a motion for new trial (which he later dismissed); and CSYG and Gebremichael filed a motion for judgment notwithstanding the verdict or, in the alternative, for new trial; The trial court denied the motions. Avis, CSYG, and Gebremichael appeal.

Today's opinion in the companion case, Avis Rent a Car System v. Johnson , 836 Ga. App. 114, 836 S.E.2d 114, (2019), holds that Perry's intervening criminal acts were the proximate cause of the injuries inflicted here. Accordingly we now hold that Perry's intervening criminal acts were the proximate cause of Smith's injuries, so the defendants are entitled to judgment on her claims arising from the defendants' alleged failure to secure the vehicle and the premises; that the trial court erred by entering judgment against Avis Rent A Car System and Avis Budget Group for the percentages of fault the jury apportioned to CSYG, Gebremichael, and Duca; that the trial court erred by denying CSYG and Gebremichael's motion for directed verdict on any claim that they are vicariously liable for Perry's negligence; that Perry was not acting under color of employment when he committed his criminal acts, so CSYG and Gebremichael are entitled to judgment on Smith's negligent hiring and retention claims; and that Gebremichael cannot be held personally liable. So we reverse in both cases.

1. Facts and procedural posture .

Viewed in the light most favorable to Smith, Jones v. Sperau , 275 Ga. 213 (1), 563 S.E.2d 863 (2002), the trial evidence showed that CSYG operated an Avis car rental lot on Courtland Street in downtown Atlanta. CSYG hired Byron Perry to wash and refuel cars at the location. On the night of August 23, 2013, after the Avis lot had closed at 7:00 p.m. and Perry and the other employees had left the premises, Perry apparently returned and stole a Ford Edge sport utility vehicle from the lot. Perry intended to sell the vehicle.

Shortly before midnight, five hours after the lot had closed, the driver of the stolen Ford Edge was fleeing from police when the vehicle crashed into a brick wall. Smith and her friend, Brianna Johnson, were sitting on the wall at the time of the collision and were seriously injured. The location of the collision was 20 minutes away from the Avis lot. Perry, who was in the vehicle, fled from the scene and later pled guilty to multiple crimes arising from the incident, including serious injury by vehicle, reckless driving, hit and run, fleeing or attempting to elude police, and theft by taking.

Smith filed this lawsuit to recover for her injuries, and the jury returned a $47 million verdict in her favor against all defendants. The jury returned a special verdict, finding that Avis Rent a Car System and Avis Budget Group were 50 percent at fault; CSYG was 15 percent at fault; Gebremichael and Duca were each 1 percent at fault; and Perry was 33 percent at fault. (The jury also found that "N. O.," an unidentified person whom Perry claimed was involved in the theft of the vehicle, was zero percent at fault.) The jury found that CSYG was an employee of Avis Rent A Car System and Avis Budget Group Finally, it found that only Perry was liable to Smith for punitive damages.

These appeals follow the trial court's denial of Avis's and CSYG and Gebremichael's motions for judgment notwithstanding the verdict or, in the alternative, for new trial.

2. Failing to secure the vehicle and premises and negligent hiring and retention .

As we held in Avis Rent A Car System , 352 Ga. App. at 893 (2) (b), 836 S.E.2d 114 (2019), any breach of duty to secure the premises and the stolen vehicle was not the proximate cause of Smith's injuries, given Perry's intervening criminal conduct. So the defendants were entitled to judgment as a matter of law on Smith's claims arising from the defendants' alleged failure to secure the vehicle and premises, see id., and we will next address those issues arising from CSYG and Gebremichael's employment of Perry, including the imposition of vicarious liability on Avis for the fault apportioned to them.

3. Judgment's imposition of vicarious liability for fault apportioned to CSYG and Gebremichael .

Avis argues that the trial court erred by entering judgment against Avis for the percentages of fault apportioned to CSYG and Gebremichael. We agree.

The jury's verdict did not specify the theories upon which the jury decided the case. The special verdict form simply asked the jury to determine whether Smith was entitled to recover from the various defendants; to determine whether CSYG was an independent contractor or an employee of Avis; to determine the monetary amount of damages Smith suffered; and to apportion the percentages of fault amongst the defendants. The jury found Avis Rent A Car System and Avis Budget Group to be 50 percent at fault; Perry to be 33 percent at fault; CSYG to be 15 percent at fault; and Gebremichael and Duca each to be 1 percent at fault.

When the trial court entered judgment on the verdict, however, the court made Avis liable for the fault the jury had assigned to CSYG and Gebremichael. The trial court entered judgment on the verdict as follows:

Plaintiff shall recover from Defendants Avis Rent A Car System, LLC and Avis Budget Group, Inc. ("Avis Defendants") the sum of $31,490,000.00. This constitutes (a) damages for the 50% fault the jury assigned to the Avis Defendants ($23,500,000.00), plus (b) damages for the 15% fault the jury assigned to Defendant CSYG, Inc. ($7,050,000.00), plus (c) damages for the 1% fault the jury assigned to Defendant Yonas Gebremichael ($470,000.00), plus (d) damages for the 1% fault the jury assigned to Peter Duca ($470,000.00). The Avis Defendants are jointly and severally liable with CSYG, Inc. because the jury expressly found, by special verdict, that CSYG is an "Employee" of the Avis Defendants and, thus, the Avis Defendants are vicariously liable for CSYG.

Avis argues that the trial court erred by entering a judgment that made it liable for the 16 percent of fault the jury had assigned to CSYG and Gebremichael. The applicable provision of the apportionment statute is OCGA § 51-12-33 (b), which provides:

Where an action is brought against more than one person for injury to person or property, the trier of fact, in its determination of the total amount of damages to be awarded, if any, shall after a reduction of damages pursuant to subsection (a) of this Code section, if any, apportion its award of damages among the persons who are liable according to the percentage of fault of each person. Damages apportioned by the trier of fact as provided in this Code section shall be the liability of each person against whom they are awarded, shall not be a joint liability among the persons liable , and shall not be subject to any right of contribution.

(Emphasis supplied.) "This provision addresses liability, not merely fault, and by defining the liability of each person against whom damages are awarded and prohibiting joint liability, it seems generally to preclude any post-verdict reassignment of damages based on the jury's apportionment of fault." Camelot Club Condo. Assn. v. Afari-Opoku , 340 Ga. App. 618, 626 (2) (b), 798 S.E.2d 241 (2017).

Smith argues that because the jury found that CSYG is an employee of Avis, Avis is vicariously liable for CSYG's negligence, and the trial court properly entered a judgment reflecting that vicarious liability. But Smith asserted some claims against CSYG and Gebremichael for which Avis could be vicariously liable and other claims for which Avis might not be vicariously liable. And because the verdict form did not ask the jury to specify the theories upon which it decided the case, "[w]e cannot determine ... [on] which of [Smith's] claims the jury, in its prerogative, based its award. ... Therefore, we find that the trial court erred in imposing liability on [Avis Rent A Car System and Avis Budget Group] for [CSYG's, Gebremichael's, and Duca's] share of fault." Camelot Club , 340 Ga. App. at 629 (2) (b), 798 S.E.2d 241 (citation omitted). Accordingly, we vacate the portion of the trial court's judgment imposing vicarious liability on Avis Rent A Car System and Avis Budget Group. See id. Compare PN Express v. Zegel , 304 Ga. App. 672, 680 (5), 697 S.E.2d 226 (2010) (the apportionment statute does not apply where a defendant employer faces only vicarious liability under the doctrine of respondeat superior because the employer and employee "are regarded as a single tortfeasor").

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