Hines v. Railserve, Inc.

• Decision Date: 28 March 2014
• Docket Number: No. A13A2223.,A13A2223.
• Citation: 326 Ga.App. 681,757 S.E.2d 280
• Court: Georgia Court of Appeals
• Parties: HINES v. RAILSERVE, INC.

326 Ga.App. 681

757 S.E.2d 280

HINES

v.RAILSERVE, INC.

No. A13A2223.

Court of Appeals of Georgia.

March 28, 2014.

Conley Griggs Partin, Cale Howard Conley, Richard Anthony Griggs, Bondurant, Mixson & Elmore, Michael Brian Terry, Robert L. Ashe III, Atlanta, for Appellant.

Weinberg, Wheeler, Hudgins, Gunn & Dial, Wendell Byron Franklin, Robert Peter Marcovitch, Y. Kevin Williams, Atlanta, for Appellee.

DILLARD, Judge.

In this civil tort action, Colby Hines sued his employer, Railserve, Inc., alleging that the company is liable for the serious brain injury he suffered when a potato cannon, constructed by several of his co-workers on company premises, exploded during an attempt to fire it. Following discovery, Railserve moved for summary judgment, which the trial court granted. On appeal, Hines argues that the trial court erred in granting summary judgment because genuine issues of fact remain as to whether Railserve is liable under the theories of respondeat superior,¹ Section 317 of the Restatement (Second) of Torts, and negligent supervision. For the reasons set forth infra, we agree that the trial court erred in granting summary judgment, and, therefore, reverse.

Viewed in the light most favorable to the nonmovant,² the record shows that in September 2010, Hines was employed by Ameritrack, a division of Railserve, and specifically worked as a member of a railroad track installation and maintenance crew that operated out of Ameritrack's facility (the “yard”) in El Dorado, Kansas. At around 5:00 p.m. on September 14, 2010, Hines's crew—which included supervisor DeWayne Taylor and several other employees—finished its off-site track work for the day and returned to the yard. And upon their return, DeWayne Taylor, Hines, and several other members of the crew went to the machine shop located near the back of the yard to visit with Tim Taylor, DeWayne's brother and the shop's foreman, and some of the other shop mechanics—all of whom were still on the clock. There, some of the crew members began drinking beer that they had brought with them.

At around 6:15 p.m., Jeff Heisen, the branch manager of the facility, stopped by the shop on his way out and spoke with the group gathered there. And although Heisen noticed that some of the employees were drinking beer, he did not ask anyone to stop drinking or direct those no longer on the clock to leave. However, shortly after leaving, Heisen called Brandon Dawson, another shop foreman who had been socializing with the Taylors and Hines's crew at the time Heisen left, and told him to make sure that all off-duty employees left the yard. But Dawson did not relay this request, and the crew remained on the premises.

Then, sometime around 7:00 p.m., a few of the shop mechanics and maintenance crew retrieved a potato cannon that they had built a few days earlier using Railserve materials (and which had been stored in the shop). After placing the cannon on top of a trailer just outside of the shop, everyone in the group—including Hines—began looking for materials to fire, and the cannon ultimately was packed with gun powder and pieces of metal. DeWayne Taylor then lit the cannon's fuse with a sparkler, at which point he and the rest of the group, other than Hines, took cover inside the shop. Indeed, rather than joining the retreat to cover, Hines climbed up a nearby fire escape and began recording the event with the video-recorder on his smart phone. But instead of firing its projectiles, the cannon exploded, and a piece of the resulting shrapnel struck Hines in the head, severely injuring him.

Thereafter, Hines filed a lawsuit against Railserve in the State Court of Clayton County,³ alleging that Railserve was liable for his injuries under theories of respondeat superior, § 317 of the Restatement (Second) of Torts, and negligent supervision. Railserve answered and, following discovery, filed a motion for summary judgment, arguing that all of Hines's theories of recovery failed as a matter of law. And after Hines responded, the trial court held a hearing on the matter, and, applying Kansas law,⁴ it granted summary judgment in favor of Railserve as to all of Hines's claims. This appeal follows.

1. Hines first contends that the trial court erred in granting summary judgment, arguing that genuine issues of material fact remain as to whether Railserve is liable under the theory of respondeat superior. We agree.

Under Kansas law, the phrase “imputed negligence” or “ respondeat superior ” refers to the doctrine which places upon one individual responsibility for the negligence of another.⁵ Specifically, the doctrine of respondeat superior makes an employer responsible for the negligent actions of its employees, but only for acts that are for the purpose of the employer's business or acts that are within the scope of the employer's authority.⁶ And an employee acts within the scope of employment if “he or she performs services for which he or she has been employed or does anything reasonably incidental to the employment.” ⁷ In fact, the test is not necessarily whether the specific conduct was expressly authorized or forbidden by the employer, “but whether such conduct should have been fairly foreseen from the nature of the employment and the duties relating to it.” ⁸

In granting Railserve's motion for summary judgment, the trial court acknowledged that there was evidence that Tim Taylor and Brandon Dawson had supervisory responsibilities at the Ameritrack yard and that both knew about the potato cannon. Additionally, there was evidence that Heisen—who had supervisory authority over all employees at the yard—directed Dawson to have off-the-clock employees leave the yard. Nevertheless, the trial court ruled that Hines's respondeat-superior claim failed as a matter of law because neither Tim Taylor nor Dawson, as agents of Railserve, had a duty to prevent Hines from being harmed. However, contrary to the trial court's assertion, the rule in Kansas is simply that “an employer has the duty not to expose his employees to perils which the employer may guard against by the exercise of reasonable care.” ⁹ And here, there are certainly genuine issues of material fact as to whether both Tim Taylor and Dawson breached that duty by failing to direct off-the-clock employees, including Hines, to stop drinking beer, to stop attempting to detonate a dangerous explosive device, and to leave the premises. Accordingly, the trial court erred in granting summary judgment to Railserve as to Hines's respondeat-superior claim.¹⁰

2. Hines also contends that the trial court erred in granting summary judgment because genuine issues of material fact remain as to whether Railserve is liable pursuant to § 317 of the Restatement (Second) of Torts. Again, we agree.

The Restatement (Second) of Torts § 317, titled the “Duty of Master to Control Conduct of Servant,” provides as follows:

A master is under a duty to exercise reasonable care so to control his servant while acting outside the scope of his employment as to prevent him from intentionally harming others or from so conducting himself as to create an unreasonable risk of bodily harm to them, if

(a) the servant

(i) is upon the premises in possession of the master or upon which the servant is privileged to enter only as his servant, or

(ii) is using a chattel of the master, and

(b) the master

(i) knows or has reason to know that he has the ability to control his servant, and

(ii) knows or should know of the necessity and opportunity for exercising such control.¹¹

In summary, § 317 recognizes that “the ‘special relationship’ of employer and employee imposes a duty on the employer to exercise control over the employee acting outside the scope of employment under limited circumstances.” ¹²

In the case sub judice, the trial court acknowledged that employees of Railserve, who had supervisory responsibilities, were aware of the potato cannon and that off-duty employees were drinking beer at the shop shortly before the accident. But the trial court concluded that Hines's claim failed as a matter of law because it held that § 317 of the Restatement does not render an employer liable for its employee's negligence when the resulting injury is to another employee. Specifically, the trial court held that “[t]he plain language [of § 317] connotes that Plaintiff cannot be both a ‘servant’ and an ‘other’ from whom the master is under a duty to protect” and contemplates no duty for the master to protect servants from their own negligent acts.

We are not persuaded that the trial court's strained reading of § 317 is required by its “plain language.” The term “other” is defined as “that one of two which remains after one is taken, defined, or specified; the remaining of two.” ¹³ But contrary to the trial court's assertion, the use of the term “other” in the context of this section is merely used to distinguish all remaining persons, i.e., those that could suffer the harm from the servant responsible for causing the harm. Indeed, “others” is the simplest and plainest term the drafters of § 317 could possibly use to draw such a distinction. Additionally, the trial court's assertion that a plaintiff cannot recover under § 317 when he contributes to his own harm is simply not supported by any of the language contained in that section of the Restatement. Thus, we do not agree that Hines's status as a servant precludes him from being an “other” under § 317.

Further, the trial court's reading of the Restatement (Second) of Torts § 317 is inconsistent with the Restatement (Second) of Agency § 213(d), which is to be read in conjunction with § 317,¹⁴ and which provides as follows:

A person conducting an activity through servants or other agents is subject to liability for harm resulting from his conduct if he is negligent or reckless: ... in permitting, or failing to prevent, negligent or other tortious conduct by persons, whether or not his servants or agents, upon premises or...