Johnson v. Avis Rent A Car System, LLC

• Decision Date: 03 May 2021
• Docket Number: S20G0695, S20G0696
• Court: Georgia Supreme Court
• Parties: JOHNSON v. AVIS RENT A CAR SYSTEM, LLC et al. Smith v. Avis Rent A Car System, LLC et al.

311 Ga. 588

858 S.E.2d 23

JOHNSON

v.AVIS RENT A CAR SYSTEM, LLC et al.

Smith

v.Avis Rent A Car System, LLC et al.

S20G0695, S20G0696

Supreme Court of Georgia.

Decided: May 3, 2021

Reconsideration Denied June 1, 2021

Bondurant, Mixson & Elmore, Michael B. Terry, Christopher T. Giovinazzo, Naveen Ramachandrappa, Amanda K. Seals ; The Law Offices of Michael Lawson Neff, Michael L. Neff, Darryl D. Adams, Susan M. Cremer, Timothy S. Peagler, for appellants.

Lewis Brisbois Bisgaard & Smith, Brantley C. Rowlen, Jason P. Wright ; Downey, Cleveland, Parker & Williams, George L. Welborn ; Swift Currie McGhee & Hiers, William T. Casey, Jr. ; Holland & Knight, Laurie W. Daniel, Matthew D. Friedlander, for appellees.

Melton, Chief Justice.

These cases arise from a car accident that occurred after Byron Perry stole a sport utility vehicle (SUV) from a rental lot where he worked and later crashed into Brianna Johnson and Adrienne Smith while Perry was trying to evade police. Johnson and Smith ("plaintiffs") each filed a lawsuit alleging claims of negligence and vicarious liability against the rental car company, Avis Rent A Car System, LLC, and Avis Budget Group (collectively "Avis"), along with Avis's regional security manager, Peter Duca, Jr.; the rental location's operator, CSYG, Inc.; and CSYG's owner, Yonas Gebremichael. Johnson and Smith also sued Perry, the CSYG employee who stole the SUV involved in the accident, although Johnson dismissed Perry before trial.

Separate juries found that Johnson and Smith were entitled to recover damages,¹ but both jury verdicts were reversed on appeal. In Avis Rent A Car System, LLC v. Johnson , 352 Ga. App. 858, 836 S.E.2d 114 (2019), the Court of Appeals concluded that Avis – the only entity found liable for compensatory damages in Johnson's case – was entitled to judgment notwithstanding the jury's verdict (JNOV) on Johnson's direct negligence claims because Perry's intervening criminal conduct² was the proximate cause of Johnson's injuries. See id. at 863 (2) (b), 836 S.E.2d 114.³ And in Avis Rent a Car System, LLC v. Smith , 353 Ga. App. 24, 836 S.E.2d 100 (2019), in addition to concluding that any breach of duty to secure the car rental lot and the stolen SUV was not the proximate cause of Smith's injuries (due to Perry's intervening criminal conduct), the Court of Appeals also concluded that CSYG and Gebremichael were entitled to a directed verdict on Smith's claims that they negligently hired and retained Perry, because Perry was not acting "under color of employment" at the time that he collided with Smith. Id. at 25 (2) and 29-30 (5), 836 S.E.2d 100.

Johnson and Smith petitioned for certiorari review in this Court, and we granted their petitions to address the following questions: (1) Did the Court of Appeals err in Divisions 2 of the opinions below in determining that the employee's intervening criminal conduct was the proximate cause of the plaintiffs’ injuries, such that the defendants were entitled to judgment as a matter of law on the plaintiffs’ direct negligence claims? and (2) Did the Court of Appeals err in Division 5 of the Smith opinion in determining that the defendants were entitled to a directed verdict on Smith's negligent hiring and retention claim, because their employee was not acting "under color of employment" when he collided with Smith? For the reasons that follow, we determine that the Court of Appeals correctly concluded that the defendants could not be held liable to Johnson and Smith as a matter of law under the facts of these cases. Accordingly, we affirm in both cases. However, we reject some of the Court of Appeals’ reasoning in the Smith case.

Viewed in the light most favorable to Johnson and Smith,⁴ the evidence presented at both trials showed the following. Pursuant to an "Independent Operator Agreement" with Avis, CSYG was responsible for the day-to-day operations of an Avis car rental facility located on Courtland Street in Atlanta. In March 2012, Gebremichael hired Perry on behalf of CSYG to wash and refuel cars at the facility. At the time that Perry was hired, he disclosed to Gebremichael that he had been in prison, but he did not reveal the extent of his criminal record, and Gebremichael did not conduct a criminal background check to discover the extent of Perry's record.⁵

On the evening of August 23, 2013, Perry stole a Ford Edge SUV from the Courtland Street rental location after the facility was closed for the day.⁶ Perry wore an Avis shirt while he drove the stolen SUV to provide an excuse in the event that he were pulled over by police. Perry intended to sell the vehicle that night, and he testified that he drove the SUV around Atlanta "for a few hours" in the hope of finding a buyer. Before Perry could find a buyer, however, police in a patrol car spotted him at around 11:30 p.m., driving the SUV erratically. When the officers approached Perry, he sped off in an effort to evade them. Perry reached a speed of 73 miles per hour in a 25 mile-per-hour zone just before he lost control of the SUV and crashed into a wall where Johnson and Smith were sitting, severely injuring them.

Prior to the incident involving Perry, one other car theft had occurred at the Courtland Street location. This theft occurred in 2012,⁷ but there was no evidence presented that this prior theft involved a high-speed chase or other danger to the public.⁸ Nevertheless, evidence was also presented at trial regarding Avis's general concerns about nationwide car rental thefts⁹ and Avis's use of a two-key system for its rental cars nationwide that made the cars more vulnerable to theft if someone were to cut one of the two keys from their common key ring.¹⁰ And John Wotton, Avis's national security manager, testified in his deposition that a car thief "could" attempt to evade police after stealing a rental car, and he further conceded that if one of Avis's vehicles were stolen that people "could be" seriously injured.¹¹

Even though Johnson and Smith presented no other direct evidence of additional car thefts at the Courtland Street location, because Avis had failed to produce and had destroyed certain "operator and location files" during discovery, the trial court gave a jury instruction that permitted an adverse inference – in other words, an instruction that allowed the jury to make an inference that information contained in those files "would have been prejudicial to [Avis]." The operator and location files related to Gebremichael's operation of the Courtland Street location and a North Carolina Avis location, and contained information on disciplinary action taken after internal investigations into any crimes or other infractions that occurred at the Avis locations in question over the past several years. Thus, the prejudicial inference that was reasonably raised by the missing files (and that the jury was authorized to make based on the trial court's instruction) was that Avis must have known about additional car thefts at its facilities because the company would have disciplined employees in connection with at least some of these additional thefts.

The jury instruction read:

[Avis] destroyed the owner operator and location files for CSYG Incorporated. At [the] time [that Avis] destroyed the files, [it was] aware of the potential for litigation. The plaintiff is entitled to a presumption that the owner operator and location files would have been prejudicial to [Avis]. The presumption may be rebutted by [Avis]. This negative presumption does not apply to CSYG Incorporated or to Yonas G. Gebremichael.

Johnson and Smith

Johnson and Smith argue that the Court of Appeals erred in concluding that Perry's intervening criminal conduct was the proximate cause of their injuries, because the evidence presented at trial on that issue did not demand a verdict in favor of the defendants. See, e.g., Mosley v. Warnock , 282 Ga. 488, 488 (1), 651 S.E.2d 696 (2007) ("The appellate standard for reviewing the grant of a judgment notwithstanding the verdict is whether the evidence, with all reasonable deductions therefrom, demanded a verdict contrary to that returned by the factfinder.") (citations and punctuation omitted). We disagree.

"Proximate cause is that which, in the natural and continuous sequence, unbroken by other causes, produces an event, and without which the event would not have occurred." (Citation and punctuation omitted.) Zwiren v. Thompson , 276 Ga. 498, 500, 578 S.E.2d 862 (2003). In this regard, a negligent actor who breaches a duty to another "is not responsible for a consequence which is merely possible, according to occasional experience, but only for a consequence which is probable, according to ordinary and usual experience." (Citation and punctuation omitted.) Johnson v. American Nat. Red Cross , 276 Ga. 270, 273 (3), 578 S.E.2d 106 (2003). It is important to recognize that

‘‘[p]robable,’’ ... in the ... rule as to causation, does not mean ‘‘more likely than not’’ but rather ‘‘not unlikely’’; or, more definitely, ‘‘such a chance of harm as would induce a prudent man not to run the risk; such a chance of harmful result that a prudent man would foresee an appreciable risk that some harm would happen.’’

Jeremiah Smith, Legal Cause in Actions of Tort , 25 Harv. L. Rev. 103, 116 (1911).

"The requirement of proximate cause constitutes a limit on legal liability; it is a policy decision that, for a variety of reasons, e.g., intervening act, the defendant's conduct and the plaintiff's injury are too remote for the law to countenance recovery." (Citation and punctuation omitted.) Atlanta Obstetrics & Gynecology Group v. Coleman , 260 Ga. 569, 569, 398 S.E.2d 16 (1990). The determination of whether proximate cause exists "requires both factfinding in the ‘what happened’ sense, and an evaluation of whether the facts measure up to the legal standard set by precedent." Id. at 570, 398 S.E.2d 16.

And, while proximate cause is ordinarily a jury question, "it will be determined...