Durben v. American Materials, Inc.

• Decision Date: 03 June 1998
• Docket Number: No. A98A0999.,A98A0999.
• Citation: 503 S.E.2d 618,232 Ga. App. 750
• Parties: DURBEN v. AMERICAN MATERIALS, INC. et al.
• Court: Georgia Court of Appeals

503 S.E.2d 618

232 Ga. App. 750

DURBEN v. AMERICAN MATERIALS, INC. et al.

No. A98A0999.

Court of Appeals of Georgia.

June 3, 1998.

Hiles, Rowen & Klonoski, Sharon L. Rowen, Atlanta, for appellant.

Martin, Snow, Grant & Napier, William H. Larsen, Thomas P. Allen III, Macon, for appellees.

BLACKBURN, Judge.

Linda Durben was injured when her vehicle was struck by a truck owned by American Materials, Inc. and driven by one of its employees, Leon Wesley Palmer. Durben sued American Materials and its insurer, Nationwide Insurance Company, asserting claims of respondeat superior, negligent entrustment, and negligent hiring and retention, and also seeking to recover punitive damages.¹ The trial court granted defendants' motion for summary judgment as to all claims except the respondeat superior claim, and Durben appeals.

"Summary judgment is proper when there is no genuine issue of material fact and the movant is entitled to judgment as a matter of law. OCGA § 9-11-56(c). A de novo standard of review applies to an appeal from a grant of summary judgment, and we view the evidence, and all reasonable conclusions and inferences drawn from it, in the light most favorable to the nonmovant." Matjoulis v. Integon Gen. Ins. Corp., 226 Ga.App. 459(1), 486 S.E.2d 684 (1997).

1. Defendants contend that they were entitled to summary judgment on Durben's claims for negligent entrustment, hiring, and retention because American Materials admitted that Palmer was its agent and employee and acting within the scope of his authority at the time of the accident. Thus, American Materials would be liable to Durben for Palmer's alleged negligent acts under the doctrine of respondeat superior. Generally, when an employer admits the applicability of respondeat superior, it is entitled to summary judgment on claims for negligent entrustment, hiring, and retention. The rationale for this is that, since the employer would be liable for the employee's negligence under respondeat superior, allowing claims for negligent entrustment, hiring, and retention would not entitle the plaintiff to a greater recovery, but would merely serve to prejudice the employer. See Bartja v. Nat. Union Fire Ins. Co., 218 Ga.App. 815, 463 S.E.2d 358 (1995); Whidby v. Columbine Carrier, 182 Ga.App. 638, 356 S.E.2d 709 (1987); Chupp v. Henderson, 134 Ga.App. 808, 216 S.E.2d 366 (1975); Willis v. Hill, 116 Ga.App. 848, 863, 159 S.E.2d 145 (1967), rev'd on other grounds, 224 Ga. 263, 161 S.E.2d 281 (1968).

An exception exists for this general rule, however, where a plaintiff has a valid claim for punitive damages against the employer based on its independent negligence in hiring and retaining the employee or entrusting a vehicle to such employee. In such case, it cannot be said that the negligence claims against the employer are merely duplicative of the respondeat superior claim. Under these circumstances, the employer is not entitled to summary judgment on the negligent entrustment, hiring, and retention claims. Rather, "the appropriate solution for avoiding the prejudice to the driver is a separate trial on the negligent entrustment[, hiring, and retention issues]. Smith v. Tommy Roberts Trucking Co., 209 Ga.App. 826, 829, 435 S.E.2d 54 (1993); see Chupp [, supra at 809, 216 S.E.2d 366]." Bartja, supra at 817(2), 463 S.E.2d 358.

Accordingly, the question to be resolved is whether Durben has a valid basis for punitive damages on her negligent entrustment, hiring, and retention claims. "Clear and convincing evidence of a defendant's `willful misconduct, malice, fraud, wantonness, oppression, or that entire want of care which would raise the presumption of conscious indifference to consequences' is required to warrant the imposition of punitive damages. OCGA § 51-12-5.1(b). Negligence, even gross negligence, is insufficient to support such an award." Bartja, supra at 818(3), 463 S.E.2d 358.

In support of her claims against American Materials, Durben relies upon several documents. First, attached as an exhibit to her brief in response to defendants' motion for summary judgment is an uncertified copy of a complaint against American Materials arising out of a prior accident involving Palmer, as well as an uncertified copy of a jury verdict against Palmer in such case. These documents are not competent evidence in this summary judgment proceeding. OCGA § 9-11-56(c) authorizes a trial court, in ruling on a motion for summary judgment, to consider "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any." Nothing in the statute authorizes a trial court to consider uncertified pleadings from another case that are merely attached to a brief, without any attempt to authenticate or verify such documents or to offer them into evidence. Moreover, the allegations in the complaint constitute hearsay, which lacks probative value even in the absence of objection. Howell Mill/Collier Assoc. v. Pennypacker's, 194 Ga.App. 169, 171(2), 390 S.E.2d 257 (1990).

Apart from the allegations in the complaint, there is no evidence whatsoever as to the circumstances surrounding the prior accident, which occurred 19 months before the collision in this case. Durben has pointed to no evidence showing that American Materials was aware of any facts surrounding the prior accident that should have put it on notice that Palmer was a dangerous driver. The complaint itself contains no allegations of such facts, merely reciting that Palmer collided with the plaintiff's vehicle and that the accident was caused by Palmer's negligence. The police report attached to the complaint shows that Palmer had not been drinking and was not given a DUI test, and he was cited for following too closely. The jury's verdict against American Materials in the other case was not rendered until February 20, 1996, more than a year after the accident in this case. Other documents submitted by Durben indicate that this...