B–t Two Inc. v. Bennett.

• Citation: 706 S.E.2d 87,307 Ga.App. 649
• Decision Date: 27 January 2011
• Docket Number: No. A10A1716.,A10A1716.
• Parties: B–T TWO, INC.v.BENNETT.
• Court: United States Court of Appeals (Georgia)

307 Ga.App. 649

706 S.E.2d 87

11 FCDR 166

B–T TWO, INC.

v.BENNETT.

No. A10A1716.

Court of Appeals of Georgia.

Jan. 27, 2011.

Craig N. Cowart, Macon, for appellant.David Leon Smith, Lanford, Smith & Kapiloff, Atlanta, for appellee.BLACKWELL, Judge.

Hunter Bennett sued B–T Two, Inc., which does business as Buffalo's Café, to recover damages for injuries that he sustained at the hands of a Buffalo's employee and another unidentified person, who together assaulted Bennett at a party. Bennett contends that Buffalo's is liable under the doctrine of respondeat superior for the tort of its employee, and Bennett also claims that Buffalo's is liable for its own negligence in sponsoring a party at which unlimited alcohol was served and inadequate security was provided. After the trial court denied Buffalo's motion for summary judgment, Buffalo's sought immediate review in this Court, which we allowed. Because we conclude that Buffalo's is entitled to summary judgment on each of the claims that Bennett asserts against it, we reverse the judgment below.

Summary judgment is warranted when the pleadings and record evidence establish that the material facts are undisputed and these facts entitle the moving party to judgment as a matter of law. See OCGA § 9–11–56(c); see also Marcum v. Gardner, 283 Ga.App. 453, 454, 641 S.E.2d 678 (2007); Smith v. Atlantic Mut. Cos., 283 Ga.App. 349, 350, 641 S.E.2d 586 (2007). We review the denial of a motion for summary judgment de novo. And on appeal, we assess the record evidence in the same way as the trial court, viewing it in the light most favorable to the nonmoving party. See McCaskill v. Carillo, 263 Ga.App. 890, 589 S.E.2d 582 (2003).

So viewed, the evidence shows that, on the evening of September 30, 2006, several individuals hosted a party at a private residence in Laurens County. The hosts intended to raise money at the party for a Buffalo's manager, who was moving away to attend to the medical needs of his sick child. Several Buffalo's employees attended the party, and some of these employees wore Buffalo's uniforms. Flyers advertising the party were posted at a Buffalo's restaurant in Laurens County, which read:

PARTY!!!!

HELP BUFFALO'S SAY

FAREWELL TO THE BEST

DAMN MANAGER EVER, ASK

ANYONE FOR DIRECTIONS.

$5.00 COVER ONLY

ALL NIGHT!!!!

There is no evidence that Buffalo's owned or leased the residence at which the party was held, paid for any expenses of the party, provided food or alcohol for the party, received any revenues collected at the party, or placed any Buffalo's signs or other promotional materials at the location of the party.

Bennett learned of the party from his cousin, and they attended the party together. When they arrived, they saw a young woman wearing a Buffalo's shirt and selling wristbands, the purchase of which entitled the buyer to unlimited beer. Instead of buying a wristband, however, Bennett obtained one from another partygoer, who was leaving the party at the time Bennett and his cousin arrived.

After he arrived at the party, Bennett began playing billiards, but he later walked to a bar inside the residence and asked the bartender for a beer. The bartender—the wife of Justin King, a Buffalo's employee—refused to serve Bennett, falsely claiming that there was no more beer. Bennett demanded a beer or a refund of the cost of a wristband, and after another person intervened, the bartender relented and gave Bennett a beer.

Bennett then returned to his billiards game but found a man, with whom he was unacquainted, sitting on the edge of the billiards table. When Bennett asked the man to move, the man became angry and started toward Bennett. To avert a confrontation, Bennett explained that he did not mean to offend and only wanted to play billiards, and the man walked away. As Bennett resumed his billiards play, Bennett's cousin walked to the bar to get a beer. When his cousin returned, he warned Bennett that the bartender had said that, if Bennett were looking for a fight, he would get one. Not believing that he was in danger, Bennett continued to play billiards.

About 30 minutes later, the unknown man whom Bennett previously had found sitting on the billiards table returned and apologized for the earlier confrontation. Bennett did not notice that, as the unknown man approached and spoke with him, Justin King also was approaching him from the other side. Without warning, King struck Bennett in the head with such force that Bennett fell to the floor. While Bennett was down, King and the unknown man began hitting and kicking him. Bennett's cousin and other partygoers intervened to stop the assault, and Bennett was taken to the hospital, having sustained serious injuries.

In September 2008, Bennett filed this lawsuit, asserting claims against Buffalo's under two distinct legal theories.¹ First, Bennett contends that Buffalo's is liable for the tort of King, its employee, under the doctrine of respondeat superior. Second, Bennett claims that Buffalo's is liable for its own negligence, which consists of, according to Bennett, sponsoring a party at which unlimited alcohol was served to partygoers and inadequate security was provided. Based on these claims, Bennett seeks compensatory and punitive damages.

After discovery, Buffalo's moved for summary judgment on each claim that Bennett asserts against it. In support of its motion, Buffalo's offered an affidavit, in which a representative of the company stated that Buffalo's did not own or lease the residence at which the party was held and did not supply any food or alcohol for the party. After a hearing, the trial court denied the motion, finding that genuine issues of material fact precluded summary judgment. Buffalo's then asked for immediate review in this Court, which we allowed, and this appeal followed.²

1. Buffalo's contends that it is not liable to Bennett under the doctrine of respondeat superior because the assault upon Bennett by a Buffalo's employee was neither within the scope of his employment nor in furtherance of Buffalo's business. We agree and reverse the denial of summary judgment on the respondeat superior claim.

Under the doctrine of respondeat superior, a master is liable for the tort of its servant only to the extent that the servant committed the tort in connection with his employment by the master, within the scope of his employment, and in furtherance of his master's business. See Piedmont Hosp. v. Palladino, 276 Ga. 612, 613–614, 580 S.E.2d 215 (2003); see also Dowdell v. Krystal Co., 291 Ga.App. 469, 470(1), 662 S.E.2d 150 (2008). As we have said before, “the general rule for determining whether the master is liable for the acts of an employee is ‘not whether the act was done during the existence of the employment, but whether it was done within the scope of the actual transaction of the master's business for accomplishing the ends of his employment.’ ” Brownlee v. Winn–Dixie Atlanta, 240 Ga.App. 368, 369(1), 523 S.E.2d 596 (1999). Although a jury often must resolve whether a servant, at the time he committed a tort, was acting within the scope of his employment and in furtherance of his master's business, the evidence in some cases is so plain and undisputable that the court properly may decide a respondeat superior claim as a matter of law. See Leo v. Waffle House, 298 Ga.App. 838, 842(3), 681 S.E.2d 258 (2009); see also Drury v. Harris Ventures, 302 Ga.App. 545, 546(1), 691 S.E.2d 356 (2010) (“Summary judgment for the master is appropriate where the evidence shows that the servant was not engaged in furtherance of his master's business but was on a private enterprise of his own.”).

Even assuming that Buffalo's sponsored the party and that King attended the party in connection with his employment by Buffalo's, there is no evidence in the record that the assault upon Bennett was within the scope of his employment or in furtherance of Buffalo's business. There is nothing in the record, for instance, from which a jury properly might infer that assaulting a partygoer without provocation was even arguably among the responsibilities that King owed his employer or that the assault upon Bennett had, or was intended to have, any business purpose whatsoever. Whatever King's reasons for assaulting Bennett, there is no evidence from which a jury might conclude that the assault had anything to do with Buffalo's business. In cases presenting similar facts and involving similar claims, we have held that claims under the doctrine of respondeat superior failed as a matter of law, even when the assault occurred at a place and time more directly related to the work for which the master employed the servant. See, e.g., Drury, supra, 302 Ga.App. at 547(1), 691 S.E.2d 356 (sexual assault upon customer by yard-maintenance laborer); Dowdell, supra, 291 Ga.App. at 470–471(1), 662 S.E.2d 150 (assault upon customer by fast-food restaurant cashier after customer insulted cashier); Worstell Parking v. Aisida, 212 Ga.App. 605, 606(1), 442 S.E.2d 469 (1994) (assault upon customer by parking lot attendant after customer failed to tip attendant). Consistent with these precedents, we conclude that Buffalo's is entitled to summary judgment on the respondeat superior claim in this case.

2. Buffalo's also contends that it is entitled to summary judgment on the negligence claim. Bennett has advanced two distinct theories of negligence, and we turn first to his contention that Buffalo's was negligent because it sponsored a party at which unlimited alcohol was served and that the service of alcohol to partygoers was a proximate cause of his injuries. As Buffalo's correctly observes, this theory of negligence is squarely foreclosed by OCGA § 51–1–40, which provides that, except in limited circumstances not presented in this case,³ “the consumption of alcoholic beverages, rather than the sale or furnishing or serving of such beverages, is the proximate cause of any injury ... inflicted by an...