Kirk & Associates, Inc. v. McClellan
| Decision Date | 21 September 1994 |
| Docket Number | A94A1179,Nos. A94A1178,s. A94A1178 |
| Citation | 448 S.E.2d 764,214 Ga.App. 685 |
| Court | Georgia Court of Appeals |
| Parties | KIRK & ASSOCIATES, INC. v. McCLELLAN et al. BLACKWELL v. McCLELLAN et al. |
Thomas P. Bishop, Cartersville, for Kirk & Associates, Inc.
Rogers, Magruder, Sumner & Brinson, J. Clinton Sumner, Jr., Rome, for Blackwell.
Paul T. Carroll III, Rome, for McClellan et al.
On April 4, 1989, a car driven by McClellan was struck head-on by a car driven by Blackwell and owned by her husband. McClellan and his wife sued driver Blackwell and later amended the complaint to include owner Blackwell, the City of Rome and under the theory of respondeat superior, Kirk & Associates, Inc. ("Associates"). The City of Rome was awarded summary judgment. At trial, the jury found both driver Blackwell and Associates liable, but found in favor of owner Blackwell and the claims against him were dismissed. In separate cases, Associates and driver Blackwell appeal from the judgment in favor of the McClellans, whose cross-appeal has been withdrawn.
Blackwell was traveling the wrong way down a four-lane road. The opposing lanes of traffic were separated by railroad tracks. The collision occurred on a curved portion of the road in the rain, shortly after McClellan turned onto the road. Both drivers testified that the collision happened quickly after McClellan emerged from behind an obstructing vehicle or vehicles.
Associates operated a private detective business. About two months before the collision, Blackwell began working for Associates. It was disputed whether she worked as an employee or as an independent contractor. On the morning of the collision, she received a telephone call from Associates asking her to conduct surveillance on an automobile traveling on a certain highway. Blackwell testified that she was on that job when the collision occurred, whereas the owner of Associates testified that, given the location of the collision, it was not possible for Blackwell to have been on the job.
1. Associates contends that, even if Blackwell was pursuing an assignment at the time of collision, it is not liable under a respondeat superior theory because Blackwell was an independent contractor. It enumerates as error the court's holding that the driver was an employee rather than an independent contractor, as a matter of law. The court did not base its ruling upon the evidence of the working contractual relationship between Associates and driver Blackwell, but rather the legal conclusion that private detective agencies may employ only persons registered under the Georgia Private Detective & Security Agencies Act ("the Act"), which regulates both agencies and their employees. OCGA § 43-38-1 et seq. Thus the court removed from the jury the disputed factual issue and instructed it to decide the case upon an employer/employee relationship, thereby creating what may have been a fictional fact. The court reached this result by construing the Act so as to preclude the agency from claiming and proving that the driver was an independent contractor, thus removing a defense to the action. The question is whether achievement of the purpose of the Act compelled this result.
In determining whether the Act requires the conclusion reached by the trial court, " Restina v. Crawford, 205 Ga.App. 887, 888, 424 S.E.2d 79 (1992).
The stated purpose of the Act is to safeguard the citizens of this state by regulating private detective and security businesses, in the public interest. OCGA § 43-38-2. To accomplish this purpose, the Act is to be liberally construed. Id. It is apparent from a reading of the Act that the purpose is to be achieved by assuring that people who engage and work in these businesses are responsible, of good moral character, free of certain types of crime, qualified to handle firearms, and meet certain other similar criteria. Regulation is by a licensing system for operators of such businesses, OCGA § 43-38-6, and by a registration procedure for employees. OCGA § 43-38-7. Training appropriate to the business is required, see OCGA § 43-38-10.1, and ongoing monitoring maintains the integrity of the industry. Sanctions are provided. OCGA §§ 43-38-11; 43-38-11.1; 43-38-16. The law regards violations of the Act to be "a menace and a nuisance and ... dangerous to the public health, safety, and welfare." OCGA § 43-38-4(d)(5). Thus the Act requires that certain standards be met in the businesses which provide detective and security services.
The Act seeks to protect those members of the public who come into contact with private detectives or security personnel from unscrupulous or criminally dangerous or unqualified persons. Its purpose, though broad, is not to assure that those working in the profession are qualified to drive, or to prevent negligence in the operation of motor vehicles. These public interests are served by other regulatory mechanisms and laws. The Act carries a mechanism and authority for the imposition of sanctions for its violation, and an express criminal penalty, but it does not impose tort liability on an employer in the absence of an employer/employee relationship. If the legislature meant to impose tort liability on a firm for the negligence of an unregistered independent contractor, even when the negligence involves only a collateral activity (driving, not investigating), it could have so provided. We decline to create this additional sanction.
Associates was duly licensed under the Act. However Blackwell, who was in fact either an employee or an independent contractor, was not registered, as required by OCGA § 43-38-7. Consequently, both Associates and Blackwell were in apparent violation of the Act and subject not only to sanction by the regulatory board but also to criminal prosecution under OCGA § 43-38-16.
The trial court's conclusion was incorrect in several specific respects. The court concluded that the Act forbids independent contractor relationships, but they are permitted, subject to the Act's licensing requirements. OCGA § 43-38-6. What is forbidden is for an employer to have an unregistered employee or to contract with an unlicensed party. The Act includes severe sanctions, but imposing tort liability under respondeat superior for negligent acts committed in the course of pursuing the business of regulated firms is not one of them. Holding the firm liable for negligent acts of an independent contractor would be a fundamental anomaly in tort law, and would not serve any purpose of the Act. Although holding a firm responsible for the act of an independent contractor would provide additional recourse for an injured party, ...
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