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

• Decision Date: 08 February 1984
• Docket Number: Nos. 67500,67509 and 67512,PEACHTREE-CAIN,PEACHTREE-HARRIS,ABU-ATA,s. 67500
• Citation: 316 S.E.2d 9,170 Ga.App. 38
• Parties: COMPANY v. McBEE.COMPANY v. AkramPEACHTREE CENTER MANAGEMENT COMPANY v. PANDAZIDES et al.
• Court: Georgia Court of Appeals

Page 9

316 S.E.2d 9

170 Ga.App. 38

PEACHTREE-CAIN COMPANY v. McBEE.

PEACHTREE-HARRIS COMPANY v. Akram ABU-ATA.

PEACHTREE CENTER MANAGEMENT COMPANY v. PANDAZIDES et al.

Nos. 67500, 67509 and 67512.

Court of Appeals of Georgia.

Feb. 8, 1984.

Rehearings Denied Feb. 28, 1984.

Certiorari Granted May 18, 1984.

Alfred B. Adams III, John L. Woltmann, Schaune C. Griffin, Atlanta, for appellants.

L. Penn Spell, Jr., Cynthia B. Somervill, for appellees (case nos. 67500, 67509).

Dwight L. Thomas, Atlanta, for appellees (case no. 67512).

DEEN, Presiding Judge.

The Peachtree-Cain Company and The Peachtree-Harris Company own the complex known as Peachtree Center. On December 19, 1978, the Peachtree Center Management Company, after it was formally incorporated, entered into oral contracts with The Peachtree-Cain Company and The Peachtree-Harris Company to manage Peachtree Center. According to the director of property management for the Peachtree Center Management Company, under these contracts Peachtree Center Management Company was solely responsible for security services at Peachtree Center and had authority to hire an independent security agency to provide such services. On May 2, 1979, the Peachtree Center Management Company contracted with the American Building Maintenance Company (ABM) to provide and manage all security services at Peachtree Center, and ABM actually provided such services until August 31, 1982. Under that contract, ABM agreed to remove any security officer at the request, for any reason, of the Peachtree Center Management Company; that the Peachtree Center Management Company could terminate the agreement at any time with 24 hours written notice; and that ABM alone would be responsible for the actions of its employees.

In Case No. 67500, the appellee, Christopher McBee, filed suit against Mark Kerrin (ABM's director of security at Peachtree Center), ABM, and The Peachtree-Cain Company, alleging malicious prosecution. In Case No. 67509, the appellee, Akram Abu-Ata, filed suit against Mark Kerrin, ABM, and The Peachtree-Harris Company, alleging malicious arrest. In Case No. 67512, the appellees, Lee and Debbie Pandazides, filed suit against the Peachtree Center Management Company, seeking damages for alleged false arrest, slander, and invasion of privacy. In these three cases, The Peachtree-Cain Company, The Peachtree-Harris Company, and the Peachtree Center Management Company, respectively, moved for summary judgment, on the basis that they could not be held liable for the intentional torts of the independent security agency. The trial court denied these motions, primarily relying upon this court's decision in United States Shoe Corp. v. Jones, 149 Ga.App. 595, 255 S.E.2d 73 (1979).

The Peachtree-Cain Company, The Peachtree-Harris Company, and the Peachtree Center Management Company all appealed to the Supreme Court, contending that application of the rule in United States Shoe Corp. v. Jones, supra, resulted in an unconstitutional taking of property without due process of law. The Supreme Court transferred the three cases to this court.

HELD:

Initially, we note that the appellants contend that imposition of vicarious liability in these cases would violate OCGA §§ 51-2-4 and 51-2-5, which govern an employer's liability for the torts of its independent employees or contractors. Those statutory provisions, however, pertain to an employer's liability for the negligence of the independent contractor or employee, and thus are inapplicable to these cases which involve intentional torts.

This court has adopted the rule that while a hirer of an independent security or protective agency generally is not liable for negligent torts of agency personnel unless the hirer exercised control over such personnel, a hirer may be liable for the intentional torts of agency personnel committed, in the scope of employment, against the hirer's invitees. United States Shoe Corp. v. Jones, supra. This rule has been increasingly adopted in various other jurisdictions. See Annot., Liability of One Contracting for Private Police or Security Service for Acts of Personnel Supplied, 38 A.L.R.3d 1332. The trial court thus was correct in denying the Peachtree Center Management Company's ...