Howard v. JH Harvey Co., Inc.

• Decision Date: 18 August 1999
• Docket Number: No. A99A1628, No. A99A1629.
• Citation: 521 S.E.2d 691,239 Ga. App. 677
• Parties: HOWARD v. J.H. HARVEY COMPANY, INC. et al. J.H. Harvey Co., Inc. v. Howard et al.
• Court: Georgia Court of Appeals

521 S.E.2d 691

239 Ga. App. 677

HOWARD v. J.H. HARVEY COMPANY, INC. et al.

J.H. Harvey Co., Inc. v. Howard et al.

Nos. A99A1628, A99A1629.

Court of Appeals of Georgia.

August 18, 1999.

Custer & Custer, Cawthon H. Custer, Eugene C. Black, Jr., Albany, for appellant.

Clyatt, Clyatt & DeVaughn, Robert M. Clyatt, Valdosta, Carl G. Fulp III, for J.H. Harvey Co.

Goldner, Sommers, Scrudder & Bass, Glenn S. Bass, William W. Horlock, Jr., Atlanta, for Ross.

JOHNSON, Chief Judge.

Deborah Howard sued J.H. Harvey Company, Inc. (hereafter "Harvey"), Charlie Ross and Alvin Stephens for intentional infliction of emotional distress, false arrest, assault and battery, and defamation following an incident in Harvey's grocery store. She also accused Ross of negligent hiring. These related cases involve the grant of summary judgment to Ross based on the borrowed servant doctrine. Harvey also appeals the trial court's application of the doctrine of respondeat superior to it. For reasons which follow, we reverse the grant of summary judgment to Ross, appealed in both cases, and affirm the denial of summary judgment to Harvey based on the doctrine of respondeat superior, appealed in Case No. A99A1629.

On appeal of the grant of summary judgment, this court applies a de novo review of the evidence to determine whether any question of material fact exists. Moore v. Food Assoc., 210 Ga.App. 780, 781, 437 S.E.2d 832 (1993). Summary judgment is appropriate where the moving party can show that there is no genuine issue of material fact and that the movant is entitled to judgment as a matter of law. OCGA § 9-11-56(c). A defendant meets this burden 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 plaintiff's case.... All of the other disputes of fact are rendered immaterial." Lau's Corp. v. Haskins, 261 Ga. 491, 405 S.E.2d 474 (1991).

The record in this case shows that Alvin Stephens worked at Harvey's store pursuant to the store's agreement with Charlie Ross d/b/a Ross Security Agency. While providing security at Harvey's store, Stephens followed the instructions of, and took directions from, store managers. However, Stephens was not Harvey's employee, and he was trained and instructed regarding his job duties by Ross. Before beginning his job at Harvey's store, Ross instructed Stephens that he was to serve only in a backup capacity to store managers in the arrest and detention of shoplifters. He was never to touch a suspected shoplifter, and unless immediate response was absolutely necessary, he was never to approach a suspected shoplifter without a store manager's approval or without a witness. Stephens was aware of these instructions and specifically knew that if he suspected an individual of shoplifting, he was supposed to get a manager to handle the situation. However, Harvey store employees testified on deposition that Stephens had the authority to act immediately and was allowed to stop a store customer outside the presence of a manager if he actually saw the customer take an item from the store and either start eating it or start running for the door.

One evening, Howard stopped by Harvey's store to pick up groceries. Stephens was asked by a Harvey store employee to keep an eye on Howard because she was a suspected shoplifter. The parties dispute what happened after Stephens began monitoring Howard.

According to Howard, she shopped for several items before proceeding to the floral display to look for a plant. While looking at plants, she was approached by Stephens, who told her the store manager had said she was shoplifting and ordered Stephens to get her. Harvey employees and Stephens testified on deposition that Stephens was requested only to watch Howard, was never told to approach Howard, and decided on his own to approach her. According to Howard, Stephens made Howard open her purse, show him the contents, and show him how she intended to pay for the items in her shopping cart. He threatened that she would go to jail if she did not cooperate and speak with a store manager.

As Howard turned to retrieve her shopping cart, Stephens grabbed her by her upper arm and turned her back around, causing severe bruising. He held her by the arm "a minute or two" while he loudly ordered her several times to shut up, leave her shopping cart alone, and follow him to the front of the store or she would go to jail. Stephens denies that he ever touched Howard. According to Howard, when they got to the front of the store, Stephens told her to "shut up" in a loud voice in front of other customers and told her to stand by him or she would go to jail. Stephens denies ever raising his voice or telling her to "shut up."

The store manager asked Stephens if he knew whether Howard had stolen anything. Stephens told the store manager that Howard was acting suspiciously, but admitted that he did not know if Howard had stolen anything. The store manager concluded there was no evidence that Howard had stolen anything, instructed Stephens to leave, and approved Howard's check for her purchases. The entire incident lasted less than 15 minutes, and Ross was not present for any of the incident.

Both Harvey and Ross filed motions for summary judgment. After considering the briefs and conducting two separate hearings, the trial court granted Ross' motion in its entirety and partially granted Harvey's motion. The trial court found that Stephens was under the complete control and direction of Harvey during the alleged injury and that Ross had no such control. The court further found that part of the borrowed servant test had been met based on Harvey's ability to discharge Stephens from the specific task assigned him. Howard and Harvey contend the trial court erred in applying the borrowed servant exception to the doctrine of respondeat superior.

1. In order for an employee of one employer to be a borrowed employee or servant of another employer, the evidence must show that (1) the borrowing employer had complete control and direction over the employee for the occasion; (2) the lending employer had no such control; and (3) the borrowing employer had the exclusive right to discharge the employee. Preston v. Ga. Power Co., 227 Ga.App. 449, 451(1), 489 S.E.2d 573 (1997). All three prongs of the test must focus on the occasion when the injury occurred rather than the work relationship in general. Id.; Stephens v. Oates, 189 Ga.App. 6, 7(1), 374 S.E.2d 821 (1988).

Where an employer can show that its employee who has been loaned to another is a borrowed servant, that employer is entitled to summary judgment as to the issue of respondeat superior liability concerning the employee's alleged misconduct. Staffing Resources v. Nash, 218 Ga.App. 525, 462 S.E.2d 401 (1995).

Case No. A99A1628

2. Howard contends the trial court erred in applying the borrowed servant exception and granting summary judgment to Ross because the evidence does not prove that Harvey had the exclusive right to discharge Stephens on the occasion when the injury occurred. We agree.

The exclusive right to discharge must relate only to the temporary assignment. Nash, supra at 526(1), 462 S.E.2d 401. The trial court found that this requirement of the borrowed servant doctrine was met because Harvey had the exclusive right to discharge Stephens from his specific task, namely, observing and/or detaining Howard. We disagree.

Although Harvey's store manager told Stephens...