Travis Pruitt & Associates, P.C. v. Hooper

• Decision Date: 01 December 2005
• Docket Number: No. A05A1062.,A05A1062.
• Citation: 625 S.E.2d 445
• Parties: TRAVIS PRUITT & ASSOCIATES, P.C. et al. v. HOOPER.
• Court: Georgia Court of Appeals

Page 445

625 S.E.2d 445

TRAVIS PRUITT & ASSOCIATES, P.C. et al. v. HOOPER.

No. A05A1062.

Court of Appeals of Georgia.

December 1, 2005.

Reconsideration Denied December 15, 2005.

COPYRIGHT MATERIAL OMITTED

Mary Ann B. Oakley, Holland & Knight LLP, Lindsey G. Churchill, Atlanta, for Appellant.

Kristine E. Orr, E. Wycliffe Orr, Orr & Orr, Gainesville, for Appellee.

ANDREWS, Presiding Judge.

Mignon Moore Hooper sued Travis Pruitt & Associates, P.C. (TPA)¹ alleging that, while she was employed by TPA, she was the victim of an intentional tort when a co-employee, Michael Taylor, sexually harassed her at work. Hooper sought emotional distress and punitive damages from her employer, TPA, under various theories. She alleged in her complaint (1) that TPA is liable for the harassment inflicted on her by Taylor under the principles of respondeat superior or ratification; (2) that after she complained to TPA about the harassment, TPA's negligence was a proximate cause of subsequent harassment because TPA continued to employ Taylor and failed to take appropriate action to prevent Taylor from continuing to harass her in the workplace, and (3) that TPA is liable for the harassment because it violated a duty to provide her with safe employment under OCGA § 34-2-10. The trial court denied TPA's motion for summary judgment, and we granted TPA's application for an interlocutory appeal. For the following reasons, we reverse.

1. Hooper alleged that shortly after she was employed by TPA, a co-employee, Taylor, made numerous unwelcome sexual advances toward her by telling her that she was beautiful; telling her that a dress she wore "showed off [her] butt;" touching her on the buttocks with a coat hanger; asking her at lunch with other employees "Would you like to show us how to eat a peter;" telling her that he understood she used to be a stripper (which was untrue); following her from work to give her flowers; sending her notes and e-mails and calling her attempting to start an unwanted romantic relationship; asking her to take a trip and stay in a hotel with him, and calling her a bitch when she refused his advances. When Hooper complained to TPA's president in March 1998 about Taylor's alleged harassment, she requested that Taylor be reprimanded but specifically requested that he not be fired. The president reprimanded Taylor, told him not to contact Hooper, and warned him that, if he had further contact with Hooper, his job was in jeopardy. The president also told Taylor and Hooper that they were to have no further contact with each other at work except that, for business purposes only, they could communicate through their supervisor. Although Hooper subsequently asked TPA's president to allow direct communication between her and Taylor for business purposes, the president refused. Nevertheless, Hooper testified that on several occasions between March and August 1998 Taylor directly contacted her in violation of the TPA ban against direct contact. She testified that she complained to her supervisor about Taylor's contacts in violation of the ban, but TPA took no action. After Hooper complained to TPA's president in August 1998 that Taylor continued to contact her, Taylor was terminated. TPA's president testified that he terminated Taylor at that point because he violated the directive not to have any further contact with Hooper except through his supervisor. The president also testified that he terminated Hooper's employment at that point because she admitted to him that she directly contacted Taylor in violation of the communication ban.

Hooper's suit against TPA alleges as one basis for liability that TPA is responsible for Taylor's alleged sexual harassment on the basis of respondeat superior. An employee injured at work by the intentional tort of a co-employee may assert a common law cause of action for damages where the intentional tort did not arise out of and in the course of the employment, and therefore no remedy for such conduct is provided by the Workers' Compensation Act. Potts v. UAPGA. AG. CHEM., 270 Ga. 14, 16-17, 506 S.E.2d 101 (1998). Although the sexual harassment alleged by Hooper was tortious conduct by nature intentional which occurred in the course of her employment by TPA, it did not arise out of the employment because Taylor's alleged actions were directed at Hooper for purely personal reasons unrelated to the furtherance of TPA's business and were not causally connected to a peculiar condition of the business. Murphy v. ARA Svcs., 164 Ga.App. 859, 861-863, 298 S.E.2d 528 (1982). Accordingly, the same facts which establish that Hooper has a common law cause of action also establish that Hooper's employer, TPA, cannot be held liable on the basis of respondeat superior for the alleged tortious conduct of her co-employee.

Under the principle of respondeat superior, an employer is liable for negligent or intentional torts committed by an employee in furtherance of and within the scope of the employer's business. Piedmont Hosp. v. Palladino, 276 Ga. 612, 613, 580 S.E.2d 215 (2003). The employer cannot be held liable on the basis of respondeat superior for an employee's tort committed "not in furtherance of the employer's business, but rather for purely personal reasons disconnected from the [employer's] authorized business,. . ." (Citation and punctuation omitted; emphasis in original.) Id. at 613-614, 580 S.E.2d 215. Because Taylor's alleged harassment was directed at Hooper for purely personal reasons entirely disconnected from TPA's business, Taylor may be held liable for his actions, but TPA cannot be held liable for Taylor's actions on the basis of respondeat superior. Id. at 614, 580 S.E.2d 215.

Hooper claims that, even if TPA did not authorize the harassment, TPA may be held liable for emotional distress intentionally inflicted on her by Taylor's alleged sexual harassment because there is evidence that TPA ratified the harassment when it had notice of Taylor's conduct but failed to take action to stop it. In support of this claim, Hooper cites Wiley v. Ga. Power Co., 134 Ga.App. 187, 192-193, 213 S.E.2d 550 (1975), overruled on other grounds, Ga. Power Co. v. Busbin, 242 Ga. 612, 615, 250 S.E.2d 442 (1978); Newsome v. Cooper-Wiss, Inc., 179 Ga.App. 670, 673, 347 S.E.2d 619 (1986); Trimble v. Circuit City Stores, 220 Ga.App. 498, 501, 469 S.E.2d 776 (1996), and Mears v. Gulfstream Aerospace Corp., 225 Ga.App. 636, 641, 484 S.E.2d 659 (1997). Like the present case, all four of these cases involved sexual harassment claims against employers where one employee sexually harassed another employee for purely personal reasons entirely disconnected from the employer's business. In all four cases we held that the employer could be held liable for an employee's intentional sexual harassment of a co-employee if there was evidence that the employer ratified the harassment after becoming aware of it. Wiley; Newsome; Trimble, and Mears, supra, should be overruled to the extent they hold that an employer can be held liable by ratifying sexual harassment committed by an employee not in furtherance of the employer's business, but rather for purely personal reasons entirely disconnected from the employer's business.

An employer may ratify tortious conduct by an employee, and thereby assume liability for unauthorized conduct, but for liability to be imposed on the employer by ratification, there must be evidence that the employee's conduct was done in furtherance of the employer's business and within the scope of the employment. Stinespring v. Fields, 139 Ga.App. 715, 715-718, 229 S.E.2d 495 (1976); Wren Mobile Homes, Inc. v. Midland-Guardian Co., etc., 117 Ga.App. 22, 31-32, 159 S.E.2d 734 (1967); Frazier v. Southern R. Co., 200 Ga. 590, 593-595, 37 S.E.2d 774 (1946); OCGA §§ 10-6-1; 10-6-52; 10-6-61; 51-1-12. Contrary to the holdings in Wiley; Newsome; Trimble, and Mears, supra, the long-established rule is that, where an employee "was acting solely for himself . . . there is no such thing as a master assuming, by ratification, liability for an act of another in which the master had no part." (Citation and punctuation omitted.) Reddy-Waldhauer-Maffett Co. v. Spivey, 53 Ga.App. 117, 119-120, 185 S.E. 147 (1936); Parry v. Davison-Paxon Co., 87 Ga.App. 51, 55-56, 73 S.E.2d 59 (1952). "An act can not be subject to ratification unless done in behalf of the person adopting it and attempting to ratify it." Lemmons v. City of Decatur, 215 Ga. 647, 648, 112 S.E.2d 597 (1960).

Thus, where an employee is acting exclusively for himself and is not acting at all for the employer, and does not profess to be acting for the employer, there is no such thing as a master assuming by ratification liability for the personal act of his employee.

Medley v. Boomershine Pontiac-GMC Truck, 214 Ga.App. 795, 797, 449 S.E.2d 128 (1994); Rubin v. Mikart, Inc., 167 Ga.App. 425, 426-427, 306 S.E.2d 420 (1983); Morgan v. S.C. Johnson & Son, Inc., 72 Ga.App. 444, 446, 33 S.E.2d 915 (1945); Healthdyne, Inc. v. Odom, 173 Ga.App. 184, 185, 325 S.E.2d 847 (1984).

The clear rule in Georgia — as established in the above cited decisions of this Court and the Supreme Court of Georgia — is that an employer cannot, by ratification, assume liability for the tortious acts of an employee done for purely personal reasons entirely disconnected from the employer's business. Moreover, the rule has a statutory basis in Georgia as set forth in OCGA § 51-1-12, which limits ratification liability by providing that: "By ratification of a tort committed for his own benefit, the ratifier becomes as liable as if he had commanded that it be committed." (Emphasis supplied). The special concurrence does not dispute the decisions establishing the rule or the statutory basis for it, but apparently seeks to create an exception to the rule in sexual harassment cases. But the special concurrence misconstrues the effect of the rule by concluding that it results in...