Peachtree-Cain Co. v. McBee, PEACHTREE-CAIN

CourtSupreme Court of Georgia
Writing for the CourtBELL; All the Justices concur, except MARSHALL, P.J., and WELTNER; WELTNER
Citation327 S.E.2d 188,254 Ga. 91
PartiesCO. v. McBEE.CO. v.PEACHTREE CENTER MANAGEMENT CO. v. PANDAZIDES.
Decision Date14 March 1985
Docket NumberNos. 40959-40961,PEACHTREE-CAIN,ABU-ATA,PEACHTREE-HARRIS

Page 188

327 S.E.2d 188
254 Ga. 91
PEACHTREE-CAIN CO.
v.
McBEE.
PEACHTREE-HARRIS CO.
v.
ABU-ATA.
PEACHTREE CENTER MANAGEMENT CO.
v.
PANDAZIDES.
Nos. 40959-40961.
Supreme Court of Georgia.
March 14, 1985.

Page 189

[254 Ga. 95] Alfred B. Adams III, Schaune C. Griffin, Greene, Buckley, DeRieux & Jones, Atlanta, for Peachtree-Cain Co., Peachtree-Harris Co. and Peachtree Center Management Co.

D. Kent Beals, L. Penn Spell, Jr., Cynthia B. Sommerville, Ragsdale, Beals, Hooper & Seigler, Atlanta, for Christopher Clyde McBee and Akrum Aub-Ata.

Dwight L. Thomas, Decatur, for Lee J. Pandazides et al.

[254 Ga. 91] BELL, Justice.

We granted certiorari in these three cases, see Peachtree-Cain Co. v. McBee, 170 Ga.App. 38, 316 S.E.2d 9 (1984), to consider the correctness of the Court of Appeals' ruling that a property owner is responsible for the intentional torts committed by an employee of a security agency, where the security agency is hired by a property manager rather than the property owner.

1. At the outset we need to address the appellants' contentions that OCGA § 51-2-4 and § 51-2-5 provide a rule of nonliability of an employer for the torts of an independent contractor, except in six exclusive exceptions relating to negligent torts, thus precluding any imposition of employer liability for the intentional torts of an independent contractor. For this reason, the appellants contend that the Court of Appeals' decisions in the instant case and in United States Shoe Corporation v. Jones, 149 Ga.App. 595, 255 S.E.2d 73 (1979) should be overruled. We disagree.

OCGA § 51-2-4 is a codification of the original common law rule of the nonliability of an employer for the torts of an independent contractor. See Restatement of Torts, 2d, Vol. 2, § 409, comment b (1965); Dekle v. Southern Bell Telephone & Telegraph Co., 208 Ga. 254, 256, 66 S.E.2d 218 (1951); Fulton County Street R. Co. v. McConnell, 87 Ga. 756, 13 S.E. 828 (1891). The reason for the rule is that "since the employer has no right of control over the manner in which the work is to be done, it is to be regarded as the contractor's own enterprise, and he, rather than the employer, is the proper party to be charged with the responsibility for preventing the risk, and administering and distributing it." Prosser and Keeton, The Law of Torts, § 71, 5th Ed. (1984). This rule of nonliability was first codified in Georgia in § 2905 of the Code of 1861, which provided that "[t]he employer is not responsible for torts committed by his employee when the employee exercises an independent business and in it is not subject to the immediate direction and control of the employer." The language of this section remained unchanged until the Civil Code of 1895. See Code of 1868, § 2911; the Code of 1873, § 2962; and the Code of 1882, § 2962.

[254 Ga. 92] At common law, certain exceptions to the rule of nonliability have been created in situations in which the reason and policy for the rule are inapplicable, see Prosser and Keeton, supra, § 71; Restatement of Torts, 2d, supra, §§ 409-429; in fact, it has been said that " 'the rule [of nonliability] is now primarily important as a preamble to the catalog of its exceptions.' " Restatement of Torts, 2d, § 409, Comment b (quoting Pacific Fire Ins. Co. v. Kenney Boiler and Manufacturing Co., 201 Minn. 500, 277 N.W. 226 (Minn.1937)). It appears that the first such exceptions appeared in 1876 in the case of Bower v. Peate, 1 Q.B.D. 321 (1876). Restatement of Torts, 2d, supra, § 469, Comment b.

In Georgia, exceptions to the rule of nonliability established by § 2905 of the Code of 1861 were first created by this court in Atlanta Railroad Co. v. Kimberly, 87 Ga. 161, 13 S.E. 277 (1891). We recognized

Page 190

§ 2905 (then § 2962 of the Code of 1882) as a general rule of nonliability, not as an immutable rule to be applied to all tort cases involving independent contractors. Kimberly, supra, 87 Ga. at 164-165, 13 S.E. 277. We then noted that many exceptions had been created to the rule under the common law, and proceeded to enumerate six of those exceptions, without purporting to make them exclusive. Kimberly, supra, 87 Ga. at 164-165, 13 S.E. 277. Subsequently, the General Assembly, acting in apparent agreement with our assessment in Kimberly, made two significant changes to our rule of nonliability in the Civil Code of 1895. First, the word "generally" was added to the rule of nonliability, so that it read that "[t]he employer generally is not responsible for torts committed by his employee when the employee exercises an independent business and in it is not subject to the immediate direction and control of the employer." Civil Code of 1895, § 3818. This language has been brought forward unchanged to our present Code, as OCGA § 51-2-4. Moreover, the General Assembly codified the six exceptions created in Kimberly, in § 3819 of the Civil Code of...

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42 practice notes
  • Bell South Telecommunications, Inc. v. Widner, A97A1596
    • United States
    • United States Court of Appeals (Georgia)
    • December 3, 1997
    ...liable for the negligence of a contractor are set out in OCGA § 51-2-5. Although this list is not exclusive (Peachtree-Cain Co. v. McBee, 254 Ga. 91, 93-94, 327 S.E.2d 188), the only provision Page 55 realistically at issue is subsection (5): "If the employer retains the right to direct or ......
  • Castellanos v. Tommy John, LLC, 20120599–CA.
    • United States
    • Court of Appeals of Utah
    • February 27, 2014
    ...that when property owners undertake to provide security services, they have a nondelegable duty to provide responsible agents), aff'd,254 Ga. 91, 327 S.E.2d 188 (1985); Rockwell v. Sun Harbor Budget Suites, 112 Nev. 1217, 925 P.2d 1175, 1179 (1996) (same); 41 Am.Jur.2d Independent Contracto......
  • Fifth Club, Inc. v. Ramirez, 04-0550.
    • United States
    • Supreme Court of Texas
    • June 30, 2006
    ...be held liable for the actions of the guards. See, e.g., Peachtree-Cain Co. v. McBee, 170 Ga.App. 38, 316 S.E.2d 9, 11 (1984), aff'd, 254 Ga. 91, 327 S.E.2d 188, 191 (1985); Adams, 257 N.Y.S. at 781-82. Those cases also appear to identify security work as an exclusive category where vicario......
  • Mahon v. City of Bethlehem, Civ. A. No. 94-5078.
    • United States
    • United States District Courts. 3th Circuit. United States District Court (Eastern District of Pennsylvania)
    • August 28, 1995
    ...& Co., 12 Mich.App. 553, 163 N.W.2d 471 (1968), rev'd on other grounds, 383 Mich. 136, 174 N.W.2d 818 (1970); Peachtree-Cain v. McBee, 254 Ga. 91, 327 S.E.2d 188 (1985); United States Shoe Corp. v. Jones, 149 Ga.App. 595, 255 S.E.2d 73 (1979); Dupree v. Piggly Wiggly Shop Rite Foods, Inc., ......
  • Request a trial to view additional results
42 cases
  • Bell South Telecommunications, Inc. v. Widner, No. A97A1596
    • United States
    • Georgia Court of Appeals
    • December 3, 1997
    ...liable for the negligence of a contractor are set out in OCGA § 51-2-5. Although this list is not exclusive (Peachtree-Cain Co. v. McBee, 254 Ga. 91, 93-94, 327 S.E.2d 188), the only provision Page 55 realistically at issue is subsection (5): "If the employer retains the right to direct or ......
  • Castellanos v. Tommy John, LLC, No. 20120599–CA.
    • United States
    • Court of Appeals of Utah
    • February 27, 2014
    ...that when property owners undertake to provide security services, they have a nondelegable duty to provide responsible agents), aff'd,254 Ga. 91, 327 S.E.2d 188 (1985); Rockwell v. Sun Harbor Budget Suites, 112 Nev. 1217, 925 P.2d 1175, 1179 (1996) (same); 41 Am.Jur.2d Independent Contracto......
  • Anderson v. Sentinel Offender Servs., LLC., No. S15Q1816.
    • United States
    • Supreme Court of Georgia
    • March 25, 2016
    ...896. Further, though the General Assembly is presumed to act with the full knowledge of existing law, see Peachtree–Cain Co. v. McBee, 254 Ga. 91(1), 327 S.E.2d 188 (1985), it is also true that "a statute must be viewed so as to make all its parts harmonize and to give a sensible and intell......
  • Fifth Club, Inc. v. Ramirez, No. 04-0550.
    • United States
    • Supreme Court of Texas
    • June 30, 2006
    ...be held liable for the actions of the guards. See, e.g., Peachtree-Cain Co. v. McBee, 170 Ga.App. 38, 316 S.E.2d 9, 11 (1984), aff'd, 254 Ga. 91, 327 S.E.2d 188, 191 (1985); Adams, 257 N.Y.S. at 781-82. Those cases also appear to identify security work as an exclusive category where vicario......
  • Request a trial to view additional results

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