Overground Atlanta, Inc. v. Dunn, 77759

Citation191 Ga.App. 188,381 S.E.2d 137
Decision Date17 March 1989
Docket NumberNo. 77759,77759
CourtUnited States Court of Appeals (Georgia)

Philip M. Casto, Decatur, for appellant.

Nickerson & Tuszynski, David E. Tuszynski, Brookins & Cook, Ernest D. Brookins, Atlanta, for appellee.

POPE, Judge.

Charles Adrian Dunn, individually and by next friend, his mother, Geraldine Dunn, brought suit against Overground Atlanta, Inc. d/b/a The Jolly Fox (Overground) and against Rodney Goodman, Overground's employee, to recover damages arising from an incident at the Jolly Fox nightclub in which Charles Dunn was beaten and arrested. The jury awarded compensatory and punitive damages in favor of Dunn and against Overground but not Goodman, and Overground brings this appeal from the trial court's denial of its motion for a new trial.

The record reveals that Charles Dunn (hereinafter appellee) and a friend, Keith Wigley, were patrons at The Jolly Fox on the night of November 2, 1982 and had been drinking heavily. Ricky Langford, an officer of Overground, was present at the club that evening. Although the evidence was in conflict about the exact nature of the events that transpired, the jury was authorized to believe that appellee and Wigley stepped outside for a brief time and that upon their return, the club's manager, Goodman, set upon appellee and Wigley, striking appellee on the head with a flashlight and knocking him to the floor and then dragging appellee and Wigley from the club into the parking lot and holding them spread-eagled over a car, pounding appellee's head on the car hood, until the police arrived. Based on Goodman's complaint regarding the earlier conduct of appellee and Wigley, including a statement that they had been observed attempting to break into cars in the parking lot, the police arrested both appellee and Wigley and charged them with being disorderly while intoxicated. Noting appellee's condition, the police took him to Grady Hospital, where he lapsed into a coma. Although appellee recovered, he suffered permanent residual brain damage. Trial of the charges against appellee in municipal court resulted in his acquittal.

Suit was filed originally against The Jolly Fox, Rodney Goodman, and John and Richard Doe, alleging assault and battery. A later amendment substituted Overground Atlanta, Inc. for The Jolly Fox after interrogatory answers revealed it to be the true owner of the club, and substituted several officers and shareholders for the Does. In addition, the amendment added claims for negligent hiring, negligent supervision, and malicious prosecution. The trial court granted the motion of the individual officers and shareholders for a directed verdict, and the remainder of the claims went to the jury, which was given a special verdict form, instructing it to select either joint liability (finding either for appellee and against both defendants or against appellee and in favor of both defendants) or separate liability (finding for or against Goodman or for or against appellant), and to indicate, if it found "against either or both defendants, ... whether it was based on negligence, false imprisonment, or malicious prosecution or all three." The jury completed the form by marking an "X" on the blank indicating it found "in favor of [appellee] and against [appellant] Overground Atlanta, Inc., in the amount of $250,000 as compensatory damages and in the amount of ... $750,000 as punitive damages" and indicated it had based its decision on "negligence, false imprisonment, and malicious prosecution." Judgment was entered on the verdict, and appellant's motion for a new trial, made on the general grounds and on the ground that the verdict was excessive, was denied.

1. Appellant contends the trial court erred by denying its motion for a new trial because the verdict assessing liability against it but not against its employee (Goodman) is inconsistent and, therefore, illegal. We disagree.

Contrary to appellant's assertion in support of this contention, the record shows that the jury did not find in favor of defendant Goodman. The jury was given two choices as to Goodman under the "Separate Liability" heading on the verdict form: " ______ WE, the jury, find in favor of defendant. ______ WE, the jury, find in favor of the plaintiff and against defendant Rodney Goodman in the amount of $______ as compensatory damages and in the amount of (if you find appropriate) $______ as punitive damages." Neither of these boxes was checked. Consequently, although the jury did not award damages to plaintiff against defendant Goodman, it also did not find for defendant Goodman, as it was authorized to do on the verdict form.

Moreover, assuming arguendo that appellant is correct in contending that the jury's verdict should be construed as a finding for Goodman, it does not follow that the verdict was inconsistent and therefore void and illegal. Although appellant contends that its liability was totally derivative of that of its employee, the record shows that, in addition to instructing the jury on the doctrine of respondeat superior, the trial court also charged the jury as follows:

I charge you that the owner of a tavern open for entertainment to the public is bound to exercise ordinary care and diligence to see that one who enters as a customer is protected from the assaults and violence of those in his employ.

In the present case the defendant owner's duty was to exercise ordinary care and diligence to protect the plaintiff while he was at the defendant's place of business lawfully engaged, from injury, injury either from the unsafe condition of the premises themselves, from the owner's own conduct, or from the conduct of their employees, or injury from any vicious or improper persons who were in the room either as customers or otherwise.

[A] customer such as the plaintiff has the right to assume that the place is reasonably safe and that the owners were exercising reasonable care and diligence to protect him while he is peaceable and lawfully engaged therein from the insults and injuries of employees of the company.... I charge you that an employer is bound to exercise ordinary care in the selection of employees.

Accordingly ... the obligation of a proprietor to protect his patrons from injury or mistreatment includes the duty to select and retain only such employees as are fit and suitable to look after the safety and comfort of his guests and who will not commit acts of violence against them insofar as is reasonably within his power to do so.

These principles were charged without objection. Consequently, the jury was authorized to impose liability against appellant on theories of direct as well as vicarious liability. Where a master is negligent independently of his servants, the master may be held liable even though the servant is not found to be liable. Moffett v. McCurry, 84 Ga.App. 853(10, 11), 67 S.E.2d 807 (1951). Sufficient evidence was presented from which a jury could find against the appellant on a theory of direct liability. Consequently, we find no merit to appellant's contention that it could be liable only if its employee was also liable.

Furthermore the jury was also given the following charges on the principles of joint and several liability:

[T]he proximate cause of the injury may be two separate and distinct acts of negligence of different persons. Where two concurrent acts of negligence operate together in bringing about an injury, the person injured may recover compensation for the entire loss from either or both of the persons responsible.

If you find a party negligent in at least one respect, and that his negligence joined together with the negligence of a third person, proximately caused the injury, then it is not necessary for you to determine whether the negligent party or third party was more at fault, as the injured party would be entitled to recover against either for his full damages.

The jury was specifically instructed that it could award compensation for the loss "from either or both of the persons responsible," thus authorizing it to impose damages against one defendant only, even if it found both were negligent. In sum, under the instructions it received in the case at bar, which were given without objection, the jury was authorized to impose liability and assess damages against the appellant, regardless of whether it also imposed liability and assessed damages against appellant's employee.

" 'The verdict may be construed in the light of the pleadings, the issues made by the evidence and the charge. (Cits.) ... The presumptions are in favor of the validity of verdicts, and if possible a construction will be given which will uphold them. (Cit.) Even if the verdict is ambiguous ... and susceptible of two constructions, one of which would uphold it and one of which would defeat it, that which would uphold it is to be applied. (Cit.)' Haughton v. Judsen, 116 Ga.App. 308, 310 157 SE2d 297) [ (1967) ]." West Ga., etc., Co. v. Stephens, 128 Ga.App. 864, 870, 198 S.E.2d 420 (1973). Applying these principles to the case at bar, we conclude that the verdict was not inconsistent and the judgment entered on the verdict was neither void nor illegal. Moreover, inasmuch as the verdict here is not inconsistent, it is unnecessary for us to consider the applicability, and propriety, of this court's decision in Brannan Auto Parts v. Raymark Indus., 183 Ga.App. 82(1), 357 S.E.2d 807 (1987), which the dissent urges was incorrectly decided and must be overruled.

2. We have examined appellant's remaining enumerations and find them to be without merit.

Judgment affirmed.

McMURRAY and BANKE, P.JJ., and BENHAM and BEASLEY, JJ., concur.

DEEN, P.J., concurs and concurs specially.

CARLEY, C.J., and BIRDSONG and SOGNIER, JJ., dissent.

DEEN, Presiding Judge, concurring specially.

I concur in the majority opinion and agree that ...

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8 cases
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    • United States
    • United States Court of Appeals (Georgia)
    • 7 Febrero 1997
    ......Houston Ridley, Thomas G. Tidwell, Edward C. Henderson, Jr., Atlanta, for Appellant. .         Webb, Carlock, Copeland, Semler & ..., based on a jury's special verdict finding against defendant Overground Atlanta, Inc. ("Overground"), and its insurer, defendant Jefferson ......
  • LDS Social Services Corp. v. Richins, A89A0382
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    ...have overlooked certain controlling authorities. In particular, they find inconsistency between the decision in Overground Atlanta v. Dunn, 191 Ga.App. 188, 381 S.E.2d 137(1989) and our opinion here. We find to the contrary. In Overground this court found that there was a separate independe......
  • Anthony v. Gator Cochran Const., Inc.
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    • 1 Noviembre 2010
    ...Brannan's misreading of Frostgate has been recognized in the Court of Appeals since Brannan was issued, see Overground Atlanta v. Dunn, 191 Ga.App. 188, 194-195, 381 S.E.2d 137 (1989) (Sognier, J., dissenting), and in at least one case in which there was a failure to object to a verdict for......
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    • United States Court of Appeals (Georgia)
    • 16 Marzo 2009
    ...(waiver occurs when party fails to object to trial court's jury instructions); OCGA § 5-5-24(a); compare Overground Atlanta v. Dunn, 191 Ga.App. 188, 191(1), 381 S.E.2d 137 (1989) (jury authorized to impose liability on employer under direct theory of liability where jury was instructed on ......
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