Healthcare Staffing, Inc. v. Edwards

Citation360 Ga.App. 131,860 S.E.2d 874
Decision Date25 June 2021
Docket NumberA21A0345, A21A0346, A21A0395
CourtUnited States Court of Appeals (Georgia)
Parties HEALTHCARE STAFFING, INC. v. EDWARDS, et al. Healthcare Staffing, Inc. v. Moore, et al. Healthcare Staffing, Inc. v. Edenfield, et al.

Charles Minor McDaniel Jr., Atlanta, for Appellant.

Steven Elliot Scheer, Savannah, Derek Jerome White, Craig A. Call, Savannah, for Appellee.

Hodges, Judge.

These cases arise from the alleged abuse by Errol Wilkins against three mentally incapacitated adults at a behavioral health facility. Appellant Healthcare Staffing, Inc. ("HCS") employed Wilkins at the time he purportedly abused these patients of Gateway Behavioral Health Services. Guardians for the patients — Sadie Edwards, Catherine Moore, and Cheryl Edenfield — sued HCS for failure to train and supervise, negligent retention, breach of contract, assault and battery, negligent hiring, and fraud. The parties filed cross motions for summary judgment, which the trial court denied. HCS sought and obtained a certificate of immediate review in each case, and this Court granted its interlocutory applications.1 HCS timely appealed, contending that the trial court erred in (1) denying its motion for summary judgment for claims arising from vicarious liability for the actions of its employees because the borrowed servant doctrine precludes liability; (2) denying its motion for summary judgment on appellees’ direct claims against it for negligent hiring, training, and retention; and (3) denying its motion for summary judgment on appellees’ breach of contract claim because the Gateway patients were not third-party beneficiaries of the contract between HCS and Gateway. For the reasons that follow, in all three cases we affirm the trial court's denial of summary judgment as to appellees’ tort claims and reverse its denial as to the breach of contract claims, and we remand the cases for further proceedings consistent with this opinion.

To obtain summary judgment,

the moving party must demonstrate that there is no genuine issue of material fact and that the undisputed facts, viewed in the light most favorable to the nonmoving [parties], warrant judgment as a matter of law. A defendant may do this by showing the court that the documents, affidavits, depositions and other evidence in the record reveal that there is no evidence sufficient to create a jury issue on at least one essential element of [plaintiffs’] case. If the moving party discharges this burden, the nonmoving [parties] cannot rest on [their] pleadings, but rather must point to specific evidence giving rise to a triable issue.

(Citation omitted.) Matthews v. Mills , 357 Ga. App. 214, 850 S.E.2d 424 (2020).

So viewed, the evidence shows that A. E., J. M., and Q. E. (collectively the "Patients") are mentally incapacitated adults who were patients at Gateway. Gateway is "a public agency and instrumentality of the State of Georgia" which provides "core and specialty mental health, developmental disability and addictive diseases services to citizens in Bryan, Camden, Chatham, Effingham, Glynn, Liberty, Long, and McIntosh counties[.]" Gateway contracted with HCS for HCS to provide it with personnel under specified terms through a Healthcare Staffing Agreement (the "Staffing Agreement"). Through this arrangement, as will be discussed in greater detail below, HCS hired Wilkins. In 2016, a co-worker of Wilkins reported that Wilkins had been physically abusing Q. E. for some time, which resulted in Gateway conducting an investigation through which the allegations of abuse were substantiated. It was subsequently alleged that Wilkins also abused A. E. and J. M., and Wilkins’ employment was terminated. The legal guardians of the Patients filed lawsuits against HCS due to the abuse its employee allegedly inflicted on the Patients and the failure of its employees to report this abuse. Ultimately, HCS moved for summary judgment on all of the claims against it, which the trial court denied in all three cases. Following this Court's grant of interlocutory review, HCS now appeals.

1. HCS contends that the trial court erred in denying its motions for summary judgment as to the claims stemming from vicarious liability for the actions of its employees because the borrowed servant doctrine precludes liability. We disagree.

All three appellees bring two claims which are premised on vicarious liability for the actions of Wilkins and other HCS employees who were aware of his alleged abuse and failed to timely report it: (1) assault and battery; and (2) fraud. HCS argues that these claims must fail because of the borrowed servant exception to vicarious liability.2

The ‘borrowed servant’ rule is an exception to the doctrine of respondeat superior. If a master lends his servants to another, then the master is not responsible for any negligence of the servant committed within the scope of his employment by the other. In order for an employee to be a borrowed employee, the evidence must show that (1) the special master had complete control and direction of the servant for the occasion; (2) the general master had no such control[;] and (3) the special master had the exclusive right to discharge the servant.

(Citations and punctuation omitted.) Odum v. Superior Rigging & Erecting Co. , 291 Ga. App. 746, 748, 662 S.E.2d 832 (2008). "All three prongs of the test must focus on the occasion when the injury occurred rather than the work relationship in general." Howard v. J.H. Harvey Co. , 239 Ga. App. 677, 679 (1), 521 S.E.2d 691 (1999). And, "where the contract between the two employers explicitly sets forth each requirement of the borrowed servant doctrine, the contract between the parties is controlling as to their responsibilities thereunder." (Citation and punctuation omitted.) Odum , 291 Ga. App. at 748, 662 S.E.2d 832. As to the third prong, the phrase "exclusive right to discharge the servant" has been interpreted to mean the unilateral right to discharge, as opposed to the sole right to discharge. Garden City v. Herrera , 329 Ga. App. 756, 762 (1), 766 S.E.2d 150 (2014).

Pretermitting whether the borrowed servant doctrine applies to claims of intentional torts such as the ones involved in this lawsuit, HCS fails the third prong of this analysis.3 Here, the Staffing Agreement4 provides as follows with regard to termination of HCS employees placed at Gateway:

4.1 Requests for Removal or Transfer of Employees. [Gateway] may request removal or transfer of [HCS] Personnel at any time, with or without cause. Requests for removal or transfer may be made either orally or in writing. All oral requests for removal must be confirmed by [Gateway] in writing on the next business day to be effective.
4.2 Documentation of Terminations; Unemployment Compensation. [Gateway] shall effectuate terminations of all Personnel and prepare appropriate separation notices and other required documentation. [HCS] shall also be responsible for compliance with applicable unemployment compensation law, rules and regulations. (Emphasis supplied.)
4.5 Classification of Personnel.[HCS] shall have the sole authority to hire and fire Personnel provided to [Gateway] , and will be solely responsible for payment of their wages, related payroll taxes, if any, related unemployment contributions, and handling any of their unemployment and workers’ compensation claims.... (Emphasis supplied.)

Missing from the language of the Staffing Agreement is any requirement that HCS honor the request of Gateway to terminate an employee. While the Staffing Agreement specifies the steps HCS must take upon deciding to terminate an employee, it does not specify that Gateway may unilaterally decide to terminate an HCS employee providing services to Gateway. Indeed, the Staffing Agreement specifically provides that HCS has the sole authority to fire employees it provides to Gateway. Accordingly, the borrowed servant doctrine does not shield HCS from vicarious liability for the actions of its employees, and the trial court did not err in denying summary judgment to HCS in this regard.

2. HCS argues that the trial court erred in denying it summary judgment on appellees’ negligent hiring and retention claims. We deem this enumeration abandoned.

Appellees contend that HCS was negligent in hiring Wilkins due to prior violent felony convictions in his background as well as his inaccurate representation of his educational background in his application. They also contend that HCS was negligent in retaining Wilkins in light of the knowledge some of his co-workers had of his purported abuse of the Patients.

On appeal, HCS dedicates minimal attention in its principal brief to counter that the provisions of the Staffing Agreement gave Gateway authority as to who it would hire, that Gateway specifically identified Wilkins as an individual to hire outside of the typical recruitment protocol, and that HCS was not in charge of supervising Wilkins. Neither HCS’ principal brief nor its reply brief contain any citation to authority at all in support of this enumeration. As a result, left unaddressed are pertinent legal questions such as the standards by which this Court analyzes claims of negligent hiring and retention generally, the extent to which we can rely on the obligations of the contract between HCS and Gateway to analyze any common law duties owed by HCS to the Patients, appellees’ allegation that some of the individuals who failed to properly supervise Wilkins were other employees of HCS, or the degree to which provisions of the employee handbook are relevant to our analysis. Indeed, HCS’ briefing before the trial court lacked such legal authority as well.

The rules of this Court are clear that "[a]ny enumeration of error that is not supported in the brief by citation of authority or argument may be deemed abandoned." Court of Appeals Rule 25 (c) (2). It is not the job of this Court to find legal authority to support a party's claim of error, nor would it be appropriate for us...

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    ...alternative arguments for recovery based upon agency and the borrowed servant doctrine. See, e.g., Healthcare Staffing, Inc. v. Edwards , 360 Ga. App. 131, 133 (1), 860 S.E.2d 874 (2021) ("The ‘borrowed servant’ rule is an exception to the doctrine of respondeat superior. If a master lends ......
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