Smith v. Germania of America

Decision Date10 May 2001
Docket NumberNo. A01A0465.,A01A0465.
Citation549 S.E.2d 423,249 Ga. App. 587
PartiesSMITH et al. v. GERMANIA OF AMERICA et al.
CourtGeorgia Court of Appeals


Frank L. Derrickson, Decatur, for appellants.

Swift, Currie, McGhee & Hiers, Christopher D. Balch, Atlanta, Laurel E. Henderson, Jonesboro, for appellees.

SMITH, Presiding Judge.

We are called upon in this appeal to determine whether a complaint was correctly dismissed for failure to state a claim. The complaint was brought by tenants of an apartment complex and a group of their party guests against the owner and manager of the apartments. As amended, the complaint alleged a 42 USC § 1983 claim as well as state law claims for assault, battery, false arrest, and false imprisonment.1 We conclude that the trial court erred in granting the motion to dismiss as to both the federal and state law claims, and we therefore reverse.

The amended complaint in this sparse record alleged that Placid and Athelia Eze hosted a party at the pool of their apartment complex, with express permission from Germania of America and GOA Management, Inc., respectively the owner and manager of the complex ("the Germania defendants"). The six other plaintiffs were guests at the party.2 The complaint alleged that the plaintiffs and other guests were acting lawfully and peacefully when they were attacked without provocation with pepper spray, beaten, cursed, and unlawfully arrested by two Union City police officers who were also "courtesy" officers at the complex, as well as at least one other Union City police officer. These alleged actions formed the basis for the plaintiffs' 42 USC § 1983 claim against the Germania defendants. The plaintiffs also alleged that the police officers, acting within the scope of their authority as employees of the Germania defendants, "assaulted, battered, falsely arrested and imprisoned" them.

The Germania defendants answered the complaint, denying, among other things, that the police officers were their employees or that it was acting "under color of State law" in the incident. These defendants also moved to dismiss the complaint on the ground that it failed to state a claim upon which relief could be granted. In support of their motion to dismiss, these defendants relied upon a brief previously submitted before the complaint was amended. That brief does not address the state law claims because they were added in the amended complaint.

1. It is well settled that:

A motion to dismiss for failure to state a claim upon which relief may be granted should not be sustained unless (1) the allegations of the complaint disclose with certainty that the claimant would not be entitled to relief under any state of provable facts asserted in support thereof, and (2) the movant establishes that the claimant could not possibly introduce evidence within the framework of the complaint sufficient to warrant a grant of the relief sought. In deciding a motion to dismiss, all pleadings are to be construed most favorably to the party who filed them, and all doubts regarding such pleadings must be resolved in the filing party's favor.

(Citations and punctuation omitted.) Bakhtiarnejad v. Cox Enterprises, 247 Ga.App. 205, 207-208(1), 541 S.E.2d 33 (2000).

Here, the trial court apparently failed to make such favorable inferences in regard to the state law claims, thereby failing to follow the standard for granting a motion to dismiss. See Nix v. Cox Enterprises, 242 Ga.App. 515, 517, 529 S.E.2d 426, rev'd on other grounds, 273 Ga. 152, 538 S.E.2d 449 (2000). The Germania defendants' answer denied the allegations that the police officers were employees, but no evidence supports either this allegation or the plaintiffs' allegation that the officers were employees. The issue is in conflict, making the grant of a motion to dismiss inappropriate. If the plaintiffs can prove that the officers were employees and that they were acting within the scope of their employment, it is possible that the Germania defendants could be vicariously liable to the plaintiffs for the officers' actions under the state law claims.

The law provides that the master is liable for the wilful torts of his servant acting in the prosecution and within the scope of the master's business, and this is true even though the servant, at the time of the commission of such tort may evidence anger, malice, or ill will. While this legal principle may be simply stated, its application has proven to be problematic. It has been recognized that the cases involving the issue of an employer's vicarious liability for the wilful torts of his employees[ ] can only be reconciled by an approach which directs its inquiry, not to authority to commit the tort[,] but to authority to accomplish a purpose in pursuance of which a wilful tort is committed. Thus, the test of liability is whether the tort was done within the scope of the actual transaction of the master's business for accomplishing the ends of his employment.... Where the tort of the employee is wholly personal to himself, it is not within the scope of his employment, and the master is not liable.


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6 cases
  • Agnes Scott Coll. v. Hartley
    • United States
    • Georgia Court of Appeals
    • 29 d5 Março d5 2013
    ...the framework of the complaint sufficient to warrant a grant of the relief sought.(Citation omitted.) Smith v. Germania of America, 249 Ga.App. 587, 588(1), 549 S.E.2d 423 (2001). So viewed, the abbreviated record on the motion to dismiss shows that an ASC student reported that Hartley sexu......
  • Perry Golf Course v. Hous. Auth. of Atlanta
    • United States
    • Georgia Court of Appeals
    • 5 d3 Novembro d3 2008
    ...27. Tom Brown Contracting, Inc. v. Fishman, 289 Ga.App. 601, 603(1), 658 S.E.2d 140 (2008). 28. See Smith v. Germania of America, 249 Ga. App. 587, 588-589(1), 549 S.E.2d 423 (2001). 29. See Scouten, supra. 30. (Punctuation omitted.) Id. 31. See id. at 73-74(2), 656 S.E.2d 820. 32. See Raza......
  • Nicholson v. WINDHAM ET AL.
    • United States
    • Georgia Court of Appeals
    • 18 d3 Setembro d3 2002
    ...(Punctuation omitted.) Id. 21. Property Pickup v. Morgan, 249 Ga. 239, 240, 290 S.E.2d 52 (1982). 22. See Smith v. Germania of America, 249 Ga. App. 587, 588(1), 549 S.E.2d 423 (2001). 23. See Yarbray v. Southern Bell Tel. &c. Co., 261 Ga. 703, 706(2), 409 S.E.2d 835 (1991) (if claimant pre......
  • McLain v. Mariner Health Care, Inc., A06A0923.
    • United States
    • Georgia Court of Appeals
    • 15 d1 Maio d1 2006
    ...Chapter 290-5-8-.01 et seq. 4. OCGA § 10-1-390 et seq. 5. OCGA § 10-1-850 et seq. 6. (Citations omitted.) Smith v. Germania of America, 249 Ga.App. 587, 588(1), 549 S.E.2d 423 (2001). 7. Compare Brogdon v. Nat. Healthcare Corp., 103 F.Supp.2d 1322, 1330-1332(4) (N.D.Ga.2000) (dismissing pla......
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