Clayton v. Edwards

• Decision Date: 27 January 1997
• Docket Number: No. A96A2165,A96A2165
• Citation: 225 Ga.App. 141,483 S.E.2d 111
• Parties: , 97 FCDR 293 CLAYTON et al. v. EDWARDS.
• Court: Georgia Court of Appeals

Page 111

483 S.E.2d 111

225 Ga.App. 141, 97 FCDR 293

CLAYTON et al. v. EDWARDS.

No. A96A2165.

Court of Appeals of Georgia.

Jan. 27, 1997.

Reconsideration Denied March 5, 1997.

Certiorari Denied June 6, 1997.

Casey, Gilson & Williams, Robert E. Casey, Jr., Sandra Gray, Matthew P. Stone, Thomas G. Hotard, Jr., Atlanta, for Appellants.

Sullivan, Hall, Booth & Smith, Robert L. Shannon, Jr., Alfonza Pearl, Atlanta, for Appellee.

BLACKBURN, Judge.

Clayton's Collection & Recovery Service, Inc. (CCR) and J. Kenneth Clayton appeal the denial of their motion for summary judgment on Richard Lee Edwards' claim for damages arising out of an automobile accident in which Edwards was injured.

Clayton is the owner and president of CCR, a corporation in the business of repossessing automobiles for lenders. In September 1992, CCR was hired by NationsBank to repossess a 1989 Chevrolet Astro van. CCR subcontracted the repossession assignment out to Robbie Johnson, an independent contractor who performed about half of CCR's repossessions at the time.

Johnson came to CCR's office to pick up a key to the van. At about the same time, Brian Hall, another individual CCR used from time to time to repossess vehicles, came to CCR's office to borrow Clayton's personal pickup truck to move some of Hall's personal belongings. Clayton loaned Hall his pickup truck, which contained a hoist that could be used for towing vehicles. Clayton did not hire Hall to repossess the Chevrolet Astro van and did not authorize Hall to use Clayton's truck to assist Johnson in the repossession.

The next morning, Clayton found the repossessed van and Clayton's pickup truck in CCR's parking lot. Clayton noticed that the truck had been damaged as if it had been in an accident. CCR paid Johnson his fee for repossessing the van.

As it turns out, Hall had assisted Johnson in the repossession and was involved in an accident with Edwards while towing the van with Clayton's personal pickup truck. Clayton testified that he and CCR were unaware of any involvement by Hall in the repossession.

Edwards brought this action against Clayton and CCR, alleging that they were liable for Hall's negligent acts under theories of agency, respondeat superior and ratification. The trial court denied Clayton and CCR's motion for summary judgment, finding there were issues of fact as to whether they ratified Hall's actions. For the reasons discussed below, we reverse the trial court's denial of summary judgment as to Clayton and CCR.

This Court considers de novo the entire record before it on review of denial of a motion for summary judgment to determine if there were genuine issues of material fact which would preclude summary judgment or whether, instead, any such disputes were immaterial and the movant was entitled to summary judgment as a matter of law. Cambridge Mut. Fire Ins. Co. v. Okonkwo, 218 Ga.App. 59, 61(1), 460 S.E.2d 302 (1995). If a defendant who will not bear the burden of proof at trial points to an absence of evidence to support the plaintiff's case, the plaintiff, to avoid summary judgment, may not rest on his pleadings, but must point to specific evidence giving rise to a triable issue. Lau's Corp. v. Haskins, 261 Ga. 491, 405 S.E.2d 474 (1991).

1. Under Georgia law, an employer is generally not liable for the torts of an independent contractor. OCGA § 51-2-4. OCGA § 51-2-5(5), however, provides an exception to this general rule of nonliability where "the employer retains the right to direct or control the time and manner of executing the work or interferes and assumes control so as to create the relation of master and servant or so that an injury results which is traceable to his interference." Edwards argues that CCR exercised sufficient control over Hall to render it liable for Hall's torts.

This argument is without merit. The undisputed evidence shows that CCR hired Johnson, not Hall, to repossess the van. Clayton testified that CCR exercised no control over the time or manner of repossessing the van, but left such matters to Johnson's discretion. See Ross v. Ninety-Two West, Ltd., 201 Ga.App. 887, 891(3), 412 S.E.2d 876 (1991) (chief test for determining independent contractor relationship is " ' "whether the contract gives, or the employer assumes, the right to control the time, manner, and method of executing the work as distinguished from the right merely to require certain definite results in conformity to the contract" ' "). Edwards has offered no evidence to contradict this testimony or to show that CCR exercised control over Johnson's work.

Instead of presenting evidence that Johnson was subject to CCR's control, Edwards points to a provision in Hall's standing contract with CCR in an attempt to show the requisite degree of control by CCR over Hall. This contract provided that Hall would repossess vehicles identified to Hall by CCR and would be paid a fee per vehicle repossessed. Although the contract stated that CCR "will not teach, dictate, describe, or indicate the method to be used in repossessing vehicles," and that Hall "is free to locate and repossess vehicles at any time convenient to [Hall]," it also stated that Hall "shall be furnished with a suitable vehicle, which he shall use to repossess any and all vehicles, whose identity is provided to [Hall] by [CCR]." Edwards argues that this provision demonstrates that CCR exercised sufficient control over Hall's actions to subject CCR to liability.

Edwards' argument is without merit, since Hall's contract is not applicable to the repossession at issue. Hall's contract governs only those situations in which CCR hires Hall to repossess a vehicle. In this case, the undisputed...