Lear Siegler, Inc. v. Stegall, 74171

• Decision Date: 16 July 1987
• Docket Number: No. 74171,74171
• Citation: 360 S.E.2d 619,184 Ga.App. 27
• Parties: LEAR SIEGLER, INC. v. STEGALL.
• Court: Georgia Court of Appeals

Page 619

360 S.E.2d 619

184 Ga.App. 27

LEAR SIEGLER, INC. v. STEGALL.

No. 74171.

Court of Appeals of Georgia.

July 16, 1987.

Rehearing Denied July 31, 1987.

Certiorari Denied Sept. 8, 1987.

R. Chris Irwin, Atlanta, for appellant.

David E. Tuszynski, Arnold Wright, Jr., Marvin A. Devlin, Atlanta, for appellee.

SOGNIER, Judge.

Stegall brought an action against Lear Siegler, Inc. to recover damages arising out of a collision between the automobile driven by Stegall and the temporary rental vehicle furnished by Lear Siegler to, and driven by, its district sales manager, Fugate. Fugate, who was on his way to Lear Siegler's office at 7:35 a.m. when the collision occurred, was arrested at the scene and charged with driving under the influence of alcohol. Although Fugate had previously been convicted of DUI, it is uncontroverted that appellant had no actual knowledge of Fugate's poor driving record. Stegall's complaint alleged causes of action against Lear Siegler for respondeat superior, negligent entrustment, and negligent hiring selection. The trial court granted Lear Siegler's motion for summary judgment with respect to the first two causes of action and denied summary judgment in favor of Lear Siegler on the negligent hiring claim. The ruling was certified for immediate review and we granted Lear Siegler's interlocutory appeal.

As no cross-appeal was filed by Stegall as to the remaining issues covered in the trial court's order, this appeal involves only the propriety of the trial court's denial of summary judgment to appellant on appellee's claim of negligent hiring. We agree with appellant that summary judgment should have been granted. In reaching our decision, we have reviewed the case law pertaining to negligent hiring and have necessarily determined that Hines v. Bell, 104 Ga.App. 76(3)(c), 120 S.E.2d 892 (1961), although never specifically overruled, has not been followed in subsequent cases and thus has been implicitly overruled. We therefore explicitly overrule Hines insofar as it holds that actual knowledge by an employer of an employee's dangerous propensities is a necessary element of a claim for negligent hiring.

Under the facts of this case, however, we agree with appellant that the theory of negligent hiring is conceptually inapplicable. Although it is true that the position for which appellant had recently hired Fugate would involve a great deal of driving throughout the sales district, after an orientation period of two to three weeks, it is uncontroverted that Fugate had not yet embarked on those duties and the record shows without contradiction that at the time the collision occurred, Fugate was neither at work nor traveling in the course of the employment for which he was hired, nor was his contact with appellee a function of his employment or appellant's business. Rather, as do most employees, Fugate was driving from his home to his employer's place of business, on his way to begin his second day of work.

An examination of the cases dealing with negligent hiring reveals that in each instance, at the very least the tortious act occurred during the tortfeasor's working hours or the employee was acting under color of employment. See, e.g., Slater v. Canal Wood Corp., 178 Ga.App. 877(2), 345 S.E.2d 71 (1986) (tortfeasor hauling logs pursuant to a contract with Canal Wood); Slaton v. B & B Gulf Svc. Center, 178 Ga.App. 701(2), 344 S.E.2d 512 (1986) (tortfeasor employee attacked customer at service station); Southern Bell, etc., Co. v. Sharara, 167 Ga.App. 665(1), 307 S.E.2d 129 (1983) (plaintiff attacked by tortfeasor who was at her home installing a telephone); Edwards v. Robinson-Humphrey Co., 164 Ga.App. 876(3), 298 S.E.2d 600 (1982) (tortfeasor stole art work and became violent while selling securities); Jester v. Hill, 161 Ga.App. 778(2), 288 S.E.2d 870 (1982) (tortfeasor misrepresented insurance coverage to customer.) While not apparent from the opinion, the record in that case reveals the incident in Cherry v. Kelly Svcs., 171 Ga.App. 235(2), 319 S.E.2d 463 (1984), also occurred during the tortfeasor employee's working day.

Furthermore, but for the fact that he was driving an automobile provided by appellant, Fugate's posture at the time of the collision was no different from any other employee driving to work. We decline to extend the parameters of the cause of action for negligent hiring so as to require every business whose employees drive to work to investigate those employees' driving records before hiring, or expose themselves to liability.

Since the theory of negligent hiring has no applicability to these facts, the issue whether appellant sufficiently fulfilled its duty to exercise ordinary care in the hiring of Fugate is not material to the resolution of this case. As no material issue of fact remains for jury resolution, appellant was entitled to judgment as a matter of law, and the trial court's denial of summary judgment to appellant on this issue was erroneous and must be reversed. See Cox Communications v. Lowe, 173 Ga.App. 812, 815,...