CGL Facility Mgmt., LLC v. Wiley

• Decision Date: 20 October 2014
• Docket Number: No. A14A0455.,A14A0455.
• Citation: 760 S.E.2d 251,328 Ga.App. 727
• Court: Georgia Court of Appeals
• Parties: CGL FACILITY MANAGEMENT, LLC v. WILEY.

328 Ga.App. 727

760 S.E.2d 251

CGL FACILITY MANAGEMENT, LLC

v.WILEY.

No. A14A0455.

Court of Appeals of Georgia.

July 16, 2014.

Reconsideration Denied July 31, 2014.

Certiorari Denied Oct. 20, 2014.

Chambless, Higdon, Richardson, Katz & Griggs, Mary M. Katz, Macon, for Appellant.

Reynolds, Horne & Survant, John C. Fleming, for Appellee.

BARNES, Presiding Judge.

Keiana Wiley died when Michael Thad Clay crossed the center line in his employer's pickup truck and hit Wiley's car head-on. Clay's blood tested positive for methamphetamine. Bryant Wiley, acting as the administrator of his wife's estate and her surviving spouse, sued Clay for wrongful death and sued Clay's employer, CGL Facility Management, LLC, under theories of respondeat superior and negligent hiring, retention, entrustment, and maintenance. The defendants answered, and following discovery, CGL moved for summary judgment, arguing that Clay was not on the job when the collision occurred and that no evidence supported Wiley's other claims. The trial court denied the motion without explanation but granted a certificate of immediate review, and this court granted CGL's application for interlocutory appeal. For the reasons that follow, we reverse the trial court's denial of summary judgment to CGL on Wiley's claims of liability under theories of respondeat superior, negligent hiring and retention, and negligent training and maintenance, but affirm the denial of summary judgment on Wiley's negligent entrustment claim.

On appeal from a grant of summary judgment, we conduct a de novo review, and we view the evidence and the inferences drawn from it in the light most favorable to the nonmoving party. A defendant demonstrates entitlement to summary judgment by showing that the record lacks evidence sufficient to create a jury issue on at least one essential element of the plaintiff's case. The defendant does not need to affirmatively disprove the plaintiff's case, but may prevail simply by pointing to the lack of evidence. If the defendant does so, the plaintiff cannot rest on his pleadings, but must point to specific evidence that gives rise to a triable issue of fact.

Upshaw v. Roberts Timber Co., 266 Ga.App. 135, 596 S.E.2d 679 (2004).

Viewed in the light most favorable to Wiley, the evidence showed that in 1995, Clay began working for the State at the Milledgeville Youth Detention Center (YDC), first in the warehouse, then in maintenance as an apprentice locksmith. In 2001, the State privatized the maintenance of its Department of Juvenile Justice (DJJ) facilities and CGL obtained the contract. Clay applied for a job with CGL and underwent a criminal background check and drug test. When asked at deposition whether there were “any issues at all with either a drug test or [his] criminal background history when [he was] hired by CGL,” Clay invoked his Fifth Amendment right to not incriminate himself. He testified that after CGL ran a motor vehicle history report on him, he began working as a locksmith at the Milledgeville YDC and other facilities, specializing in locks and door.

The State closed the Milledgeville YDC in 2008, and Clay remained at the facility for a year as its sole maintenance man. In 2009 he accepted CGL's offer of a management position in Augusta, overseeing the Augusta Regional Development Center (RYDC), the Augusta YDC, and a Georgia Bureau of Investigation crime lab. CGL provided him with a vehicle beginning in August 2010, and Clay began commuting to Augusta to work.

Clay testified that the management position in Augusta involved “a lot of paperwork” and the supervision of four employees, and that after a year he was demoted after an audit revealed “a lot of deficiencies.” The August YDC had no on-site vehicle and the facility was very large, so while Clay was allowed to keep the company truck after his demotion to commute to and from work, other employees used the truck to run errands after Clay arrived at the work site. CGL also continued to pay for insurance, gas, and maintenance on the truck. Clay's co-worker testified that after the demotion, Clay began coming in 30 minutes to an hour late and was “griping” that the new supervisor told him he had to start being at work on time.

Clay testified that he had a motor vehicle accident in 1991 in Florida where he hit someone. He was not sure if anyone was injured or whether litigation ensued, and when asked if he was cited for criminal charges, he took the Fifth. He also “slid into” another car in a Walmart parking lot on an unspecified date, but he and the other driver just exchanged insurance information and let their insurers take care of it rather than involving the police. In 2004, he was hit from behind while driving the company truck, reported the wreck to CGL, and was off work for a week with whiplash.

In the December 11, 2011, collision that led to this lawsuit, Clay suffered serious injuries and was out of work for a time. CGL reassigned him to a facility in Macon closer to his house and he returned to light duty work in January 2012. He was given a formal reprimand shortly afterward for using a state computer for personal reasons and using the company credit card to put gas in his personal car, then fired at the end of February 2012 for deficient performance.

CGL's Director of Human Resources, who was hired in March 2011, testified that before June 2012, either the company or the facility to which an employee was assigned ran pre-hiring drug tests and criminal background checks on all job applicants.¹ It did not run subsequent background checks unless there was a reason to do so. CGL also ran motor vehicle reports (MVRs) on new hires, but after that first report it relied on its insurer to monitor its employees' driving records. The company ran MVRs on all new employees regardless of whether they were given a company vehicle, because each facility had an on-site vehicle available to the employees to use as needed. CGL relied on its employees to self-report any subsequent arrests or tickets, and if they did so the company would then run a new MVR and background check.

When Clay was demoted from his supervisory position, CGL allowed him to keep the company truck due to his lengthy commute, but although typically when an employee was demoted his file contained related paperwork, there was no documentation about that in Clay's file. The director had investigated a subordinate's complaint about Clay's attitude while he was a supervisor, but no documentation existed as to that investigation. Finally, CGL employees were supposed to receive annual reviews, but there were few written reports in any employees' files regarding those reviews prior to the current director's employment, and only one review in Clay's file. Clay was not reviewed at the end of 2011 because he was out after the crash, and the director asked his supervisor not to review him when he returned because he was not at full capacity and she thought it would not be fair to review him then.

CGL enumerates three errors: the trial court erred in denying summary judgment on Wiley's claim that CGL was liable for Clay's negligence under respondeat superior, in finding an issue of fact as to whether CGL is liable for negligent hiring, retention, or entrustment, and in finding an issue of fact as to whether CGL is liable for negligent maintenance. We affirm the trial court's denial of summary judgment on Wiley's negligent entrustment claim but reverse as to the other claims.

1. CGL argues that the record contains no evidence to support Wiley's claim that the company was vicariously liable for Clay's negligence under a theory of respondeat superior. We agree.

When an employee is involved in a collision while operating a vehicle owned by his employer, a presumption arises that he is acting within the scope of his employment. International Business Machines v. Bozardt, 156 Ga.App. 794, 794–795, 275 S.E.2d 376 (1980). The burden then shifts to the employer “to rebut the presumption by evidence that is clear, positive and uncontradicted and that shows the servant was not in the scope of his employment.” (Citations and punctuation omitted.) Id. If the employer presents evidence that the employee was...