Nelson v. Silver Dollar City, Inc.

• Citation: 547 S.E.2d 630,249 Ga. App. 139
• Decision Date: 30 March 2001
• Docket Number: No. A00A1946., No. A00A1945
• Parties: NELSON et al. v. SILVER DOLLAR CITY, INC. et al. Silver Dollar City, Inc. et al. v. Nelson et al.
• Court: Georgia Court of Appeals

547 S.E.2d 630

249 Ga. App. 139

NELSON et al. v. SILVER DOLLAR CITY, INC. et al.

Silver Dollar City, Inc. et al. v. Nelson et al.

Nos. A00A1945, A00A1946.

Court of Appeals of Georgia.

March 30, 2001.

Reconsideration Denied April 12, 2001.

Pope, McGlamry, Kilpatrick & Morrison, William U. Norwood III, Jay F. Hirsch, David S. Bills, Atlanta, for appellants.

Webb, Carlock, Copeland, Semler & Stair, Brian R. Neary, Boyd B. Newton, Lokey & Smith, Malcolm Smith, Jon W. Burton, Atlanta, for appellees. POPE, Presiding Judge.

In 1995, while on a 30-minute paid break from her job as a lifeguard at White Water Park, Jenee Johnston, a 16-year-old licensed driver, struck another car on U.S. 41 (Cobb Parkway). Tragically, three people were killed in the collision. Plaintiffs Tonya Nelson and Jessie Harvey are surviving relatives and the administrators of the estates of two of the victims. They filed wrongful death claims against Silver Dollar City, Inc., which operates under the White Water name (hereinafter "White Water"), and Atlanta Structures, L.P. and TRC Realty, Inc.-III, the owners of the adjacent White Water Business Park (hereinafter collectively "Business Park").

The defendants subsequently moved for summary judgment. The trial court granted partial summary judgment, but held that an issue of fact remained on the vicarious liability claim as to whether Johnston was acting in the scope of her employment at the time of the collision. The trial court granted the Business Park's motion for summary judgment. Nelson and Harvey appeal the trial court's order, and White Water cross-appeals from the partial denial of its summary judgment motion.

Viewed in the light most favorable to Nelson and Harvey, the evidence showed that on August 24, 1995, Johnston, accompanied by Joshua Levine, another White Water lifeguard, left the White Water property during a paid break to get lunch. Leaving the park was in violation of company policy, but it is unclear whether this policy was ever communicated to Johnston or Levine. The pair left the park with the knowledge and tacit consent of a supervisor, who had asked Johnston to bring food back for her as well.

Johnston drove through the adjacent Business Park and came to a stop at a point where one of the Business Park's roadways intersected with Cobb Parkway. Johnston was aware that she could have driven through the Business Park onto an adjacent street that intersected Cobb Parkway at a traffic light and which would have enabled her to turn without crossing lanes of oncoming traffic. But Johnston testified that she chose to turn onto Cobb Parkway from the Business Park's private roadway, and without the benefit of the traffic light, because she always used that route. She had never had or observed any prior problems or accidents at that intersection.

The collision occurred when Johnston attempted to turn left onto Cobb Parkway across four traffic lanes. Johnston's car struck a car driven by Lee Nelson, in which Michael Harvey was riding as a passenger. Upon impact, Nelson's car crossed the centerline into oncoming traffic, where it struck a third vehicle. Nelson, Harvey, and the driver of the third car were all killed.

Johnston told police at the scene that she was leaving White Water to run an errand for her supervisor. She said that she had looked both ways before starting her turn. In a later taped statement, Johnston again stated that she had left White Water to go out for something for her supervisor. She explained that although she had looked left before beginning her turn, she had not seen Nelson's car. Johnston was charged with failing to yield the right of way.

In her deposition Johnston stated that she was going out to get lunch and that she was going to get a milkshake for her supervisor as a "personal favor" and not as a part of her job duties. The trial court found that this evidence was contradictory and created a jury issue as to "the credibility of Johnston as a witness as to whether she was leaving White Water on a purely personal mission or at the direction of her supervisor" and thus whether Johnston had left work to run an errand for her supervisor.

Case No. A00A1945

1. Nelson and Harvey first assert that the trial court erred in finding that the only jury question as to White Water's vicarious liability was whether Johnston was leaving White Water on a work-related errand for her supervisor or under her supervisor's direction. But we do not read the trial court's order as holding that only one jury issue exists. Rather, we interpret the order as finding that summary judgment was precluded on the issue of White Water's vicarious liability because at least one jury issue exists. Accordingly, we find no error.

2. Nelson and Harvey next assert that it was error for the trial court to grant summary judgment to White Water on the issue of negligent supervision. They assert that jury issues remain as to whether White Water exercised ordinary care in supervising its employees as they left the park for 30 minute break periods.

"In Georgia, the essential elements of a cause of action for negligence are: (1) a legal duty; (2) a breach of this duty; (3) an injury; and (4) a causal connection between the breach and the injury." (Citation omitted.) Vaughan v. Glymph, 241 Ga.App. 346, 348, 526 S.E.2d 357 (1999). Therefore, Nelson and Harvey must first establish that White Water owed their decedents a legal duty.

In making their negligent supervision argument, Nelson and Harvey rely upon three basic theories: (1) the general duty to exercise ordinary care, citing OCGA § 51-1-12; (2) the duty of an employer to make its premises safe for its employees and to warn of dangers inherent to the premises or the nature of the job, citing, e.g., Smith v. Ammons, 228 Ga. 855, 188 S.E.2d 866 (1972); Church v. SMS Enterprises, 186 Ga.App. 791, 368 S.E.2d 554 (1988); and (3) the duty of an employer to control the actions of its employees on its premises so as to prevent forseeable injuries to third persons, citing Great A & P Tea Co. v. Cox, 51 Ga.App. 880, 181 S.E. 788 (1935); Restatement 2d of Torts § 317.

While these authorities may impose general duties upon an employer to monitor and supervise its employees on its own premises in relation to the employer's customers and the employees' own safety, we find no authority establishing a general duty upon every employer to monitor and supervise its employees outside its premises for the protection of the driving public at large.

The evidence shows that the accident in this case occurred off White Water's premises and on a route chosen by the employee. Johnston was licensed by the State of Georgia to operate a car, and driving was not one of her regular job duties. Under these narrow circumstances, we agree with the trial court that White Water had no duty to monitor Johnston's driving practices or habits. Nor is there any evidence that White Water was aware of any problems with Johnston's driving or any other factors that arguably could have imposed any duty of specialized supervision. See Modern Woodmen of America v. Crumpton, 226 Ga.App. 567, 569, 487 S.E.2d 47 (1997).

Nelson and Harvey argue, however, that White Water assumed a duty of supervision when it issued a policy directing its employees not to leave the premises during break periods. White Water presented evidence that this policy was announced to employees through a newsletter handed out with the employees' paychecks on July 7, 1995, approximately one month before the accident.¹ The newsletter noted that there had been "several fender benders and littering incidents in the employee parking lot," and that "effective immediately" all employees were to remain on the park throughout the workday.

But uncontradicted evidence shows that this policy was intended to cut down on littering and fender benders in the employee parking lot itself and also to prevent delays in the lifeguard rotations caused by employees leaving the park. Therefore, the policy was aimed at monitoring and controlling activity occurring on the park premises. There is no evidence in the record that this policy was intended to prevent accidents occurring off the White Water premises and thus no evidence that White Water undertook a duty to protect third parties from such accidents.

Nelson and Harvey also argue that because White Water once owned the Business Park property and maintained an easement of ingress and egress over it, a jury issue exists as to whether they were on notice of allegedly dangerous conditions in exiting the property directly onto Cobb Parkway. But White Water did not own or maintain the Business Park property at the time of the accident, and the accident occurred at a location outside its easement. Therefore, no additional duty on the part of White Water arose.

Thus, we find no error in the trial court's grant of summary judgment on the issue of White Water's liability for negligent supervision.

3. Nelson and Harvey also assert that the trial court erred in granting summary judgment to the Business Park based upon a finding that Johnston's failure to yield the right of way was the sole proximate cause of the collision. They contend that it was error for the trial court to focus on whether the Business Park's shrubbery impeded Johnston's view because there was evidence of other acts of negligence. They assert that jury issues exist as to whether the Business Park was negligent in not erecting traffic control signals at the intersection, in allowing young White Water employees to use its premises and in failing to route or direct such traffic to the alternate exit in accordance with White Water's easement.

While these arguments address allegedly negligent acts, the Business Park is not liable absent evidence that these acts proximately caused the collision. See Keith v. Beard, 219 Ga.App. 190, 192(1), 464 S.E.2d 633 (1995)(even "[n]...