Cox v. Brazo
| Decision Date | 10 March 1983 |
| Docket Number | No. 65172,65172 |
| Citation | 303 S.E.2d 71,165 Ga.App. 888 |
| Parties | , 33 Empl. Prac. Dec. P 34,268 COX v. BRAZO et al. |
| Court | Georgia Court of Appeals |
Peter G. Williams, Columbus, for appellant.
James E. Humes II, Robert C. Martin, Jr., John W. Denney, Miller P. Robinson, Columbus, for appellees.
Shelva Cox sued Robert Brazo and The Krystal Company (Krystal) for personal injuries resulting from Brazo's alleged sexual harassment of Cox, and malicious and false statements made about Cox; Cox also sued for breach of her employment contract with Krystal regarding health insurance benefits. The trial court granted Brazo and Krystal's motions for summary judgment on all counts and Cox appeals.
Brazo, a manager of one of Krystal's fast food restaurants, hired Cox as a counter operator in April 1980 and was Cox's supervisor. Brazo allegedly made lewd and obscene comments and gestures to Cox, repeatedly made sexual advances, placed his hands on private areas of her body, and on one occasion dropped his trousers in her presence. Cox steadfastly repelled his advances and protested his language and gestures. Brazo's alleged behavior took place during working hours at the Krystal restaurant, while both Cox and Brazo were on duty, and continued until Cox resigned in April 1981. Brazo also was alleged to have threatened to fire Cox and gave her extra duties at the restaurant because of her refusal to respond to his advances. Brazo's supervisor testified on deposition that prior to Cox's employment at Krystal, Brazo's superiors had reports of incidents of similar behavior towards other female employees of Krystal during working hours and that Brazo had been warned about such behavior.
1. Appellant contends that the trial court erred in granting appellees' motions for summary judgment because her common law tort claim of assault against Brazo and Krystal is not barred by the Georgia Workers' Compensation Act. OCGA § 34-9-1 et seq. (formerly Code Ann. § 114-101 et seq.). We agree.
The instant case is factually similar and controlled by our recent decision in Murphy v. ARA Services, Inc., 164 Ga.App. 859, 863, 298 S.E.2d 528, 531 (1982). In that case Judge Pope held
Appellant sued Brazo for assault and alleges that Krystal's liability arises under the principle of respondeat superior because Brazo was acting as an agent for Krystal at the time of the alleged sexual harrassment. However, as we pointed out in Murphy, Brazo's alleged acts were not in furtherance of Krystal's business but independent of the relation of master and servant. Jones v. Reserve Ins. Co., 149 Ga.App. 176, 253 S.E.2d 849 (1979). Rather, the theory of recovery against the employer here sounds in common law tort, i.e., Krystal's negligence in allowing Brazo to remain in a supervisory position with notice of his proclivity to engage in sexually offensive conduct directed against female employees. See Murphy, supra. Cf. Murphey v. New South Brewery &c. Co., 145 Ga. 561, 89 S.E. 704 (1916). Whether a master was negligent in employing an undependable and careless servant is a separate issue from whether an agent is acting within the scope of the master's business. Greeson v. Bailey, 167 Ga. 638, 641, 146 S.E. 490 (1928). A cause of action for negligence against an employer may be stated if the employer, in the exercise of reasonable care, should have known of an employee's reputation for sexual harrassment and that it was foreseeable that the employee would engage in sexual harassment of a fellow employee but he was continued in his employment. Hollrah v. Freidrich, 634 S.W.2d 221 (Mo.App.1982). There is evidence in the record regarding Brazo's alleged sexual misconduct directed toward Cox and other female employees...
To continue reading
Request your trial
-
Pierri v. Cingular Wireless, LLC
...would harass other employees, and nevertheless hired or retained the harassing employee. Coleman, 381 S.E.2d at 307; Cox v. Brazo, 165 Ga.App. 888, 303 S.E.2d 71, 73, aff'd, 251 Ga. 491, 307 S.E.2d 474 (1983). Courts should consider "whether the employer promulgated an express policy discou......
-
Powell v. State
...and had to yield "in some particulars... to the right of speech and of the press." Id., at 204, 50 S.E. 68. See also Cox v. Brazo, 165 Ga.App. 888, 303 S.E.2d 71 (1983) (individual has no right of privacy in information published by another when individual had publicized the information); C......
-
Reyna v. Conagra Foods, Inc.
... ... In order to sustain a claim for negligent retention, Plaintiffs must show that ConAgra knew or should have known of Colquitt's propensity to discriminate, harass, and commit fraud, and that it was foresee able that Colquitt would engage in such misconduct. See Cox v. Brazo, 165 Ga. App. 888, 889, 303 S.E.2d 71, 73 (Ct.App ... Page 1384 ... 1983). Plaintiffs have identified absolutely no such evidence, and their conclusory allegations do not support their negligent retention claims. Because Plaintiffs have provided no evidence to show that ConAgra knew or should ... ...
-
Byrd v. Richardson-Greenshields Securities, Inc.
... ... This is so because these causes of action address the very essence of the policies against sexual harassment--an injury to intangible personal rights. Accord Hart v. National Mortgage & Land Co., 189 Cal.App.3d 1420, 235 Cal.Rptr. 68 (1987); Cox v. Brazo, ... Page 1105 ... 165 Ga.App. 888, 303 S.E.2d 71, aff'd, 251 Ga. 491, 307 S.E.2d 474 (1983); O'Connell v. Chasdi, 400 Mass. 686, 511 N.E.2d 349 (1987); Hollrah v. Freidrich, 634 S.W.2d 221 (Mo.App.1982); Hogan v. Forsyth Country Club Co., 79 N.C.App. 483, 340 S.E.2d 116 (N.C.App.), review ... ...
-
The Emerging Bad Faith Cause of Action Takes on the Exclusive Remedy Doctrine - Robert R. Potter and Joan T.a. Gabel
...not subject to the exclusive remedy provision); Murphy v. ARA Servs., Inc., 164 Ga. App. 859, 298 S.E.2d 528 (1982) and Cox v. Brazo, 165 Ga. App. 888, 303 S.E.2d 71 (1983) (both holding that sexual harassment is not within the Act). 42. 253 Ga. 378, 320 S.E.2d 365 (1984). 43. The portion o......
-
Torts - Cynthia Trimboli Adams and Charles R. Adams, Iii
...of emotional distress. 10. See, e.g., Newsome v. Cooper-Wiss, Inc., 179 Ga. App. 670, 672,374 S.E.2d 619, 621 (1986); Cox v. Brazo, 165 Ga. App. 888, 888, 303 S.E.2d 71, 73, affd, 251 Ga. 491, 307 S.E.2d 474 (1983). 11. 209 Ga. App. 166, 433 S.E.2d 73 (1993). 12. Id. at 168, 433 S.E.2d at 7......
-
Torts - Deron R. Hicks
...App. 1, 625 S.E.2d 445 (2005). 65. Id. at 1, 625 S.E.2d at 447. 66. Id. 67. Id. at 5, 625 S.E.2d at 450. 68. Id. (quoting Cox v. Brazo, 165 Ga. App. 888, 889, 303 S.E.2d 71, 73 (1983)). 69. Id. 70. Id. (citing OB-GYN Assocs. of Albany v. Littleton, 259 Ga. 663, 667, 386 S.E.2d 146, 149 (198......
-
Sexual Harassment Claims Under Georgia Law
...employment law in Atlanta for eleven years. She received her law degree from Indiana University in 1987. Endnotes 1. See Cox v. Brazo, 165 Ga. App. 888, 889, S.E.2d 71, 73 (1983). 2 42 U's.C. 2000e - 2000e-17 (West 1994 and West Supp. 1998). 3. See Adams v. Emory Univ. Clinic, 179 Ga. App. ......