Underberg v. Southern Alarm, Inc., A06A2349.

• Decision Date: 09 March 2007
• Docket Number: No. A06A2349.,A06A2349.
• Citation: 643 S.E.2d 374,284 Ga. App. 108
• Parties: UNDERBERG v. SOUTHERN ALARM, INC. et al.
• Court: Georgia Court of Appeals

284 Ga. App. 108

643 S.E.2d 374

UNDERBERG v. SOUTHERN ALARM, INC. et al.

No. A06A2349.

Court of Appeals of Georgia.

March 9, 2007.

James B. Franklin, Wesley C. Taulbee, Franklin, Taulbee, Rushing, Snipes & Marsh, Statesboro, Kathryn H. Pinckney, Savage & Turner, P.C., Brent J. Savage, Savage Turner Pinson & Karsman, for appellant.

A. Martin Kent, Catherine M. Palumbo, Edgar P. Williams, Bouhan, Williams & Levy, Savannah, for appellees.

MIKELL, Judge.

Kelly Underberg appeals from the grant of summary judgment to ADT Security Services South, Inc., d/b/a ADT Security Services, Inc. ("ADT"), and its authorized dealer, Southern Alarm, Inc., in her negligent hiring action. Underberg was kidnapped at gunpoint by Bert Fields, a convicted violent felon who had once worked for Southern Alarm as a "promotions representative" selling home security systems door-to-door. Southern Alarm did not perform a background check before hiring Fields, which would have revealed that he had been convicted of burglary and kidnapping in South Carolina in 1979, sentenced to life in prison, and paroled in 1995. In a lengthy order, the trial court reasoned that no act or omission of Southern Alarm or ADT could be found by a jury to be a proximate contributing cause of Underberg's injuries. We disagree and reverse.

On appeal of a grant of summary judgment, the appellate court must determine whether the trial court erred in concluding that no genuine issue of material fact remains and that the moving party was entitled to judgment as a matter of law. This requires a de novo review of the evidence. Summary judgment is proper when the court, viewing all the facts and evidence and reasonable inferences from those facts in a light most favorable to the non-movant concludes that the evidence does not create a triable issue as to each essential element of the case.¹

We are especially mindful in this case that "[e]ven slight evidence will be sufficient to satisfy the plaintiff's burden of production of some evidence on a motion for summary judgment; such evidence may include favorable inferences drawn by the court from the evidence presented."² Giving Underberg the benefit of all favorable inferences, we are persuaded that she has presented some evidence, however slight, that Southern Alarm's failure to perform a background check on Fields was a proximate contributing cause of her kidnapping.

Viewed in its proper light, the evidence shows that Southern Alarm hired Fields as a "promotions representative" in November 2001. Kelley Clements, Southern Alarm's president and sole owner, deposed that promotions representatives were part-time employees who "turned over constantly" and worked on commission. After two or three days of training, sometimes assisted by an individual from ADT's national office, these representatives were transported in a Southern Alarm van to large neighborhoods where they conducted door-to-door sales of ADT security systems.

Terry Wayne Beach, Jr., a former employee of Southern Alarm, testified that these workers were trained for one and one-half days. Beach, who accompanied the representatives in the van, testified that they were given a script to read to potential customers in order to gain entrance into their homes. They also were provided contracts, yard signs, and t-shirts. According to Beach, these workers were given the paperwork to close the sale themselves, although they had to call the office to run a credit check on the potential buyer. Beach testified that no background checks were performed on them because they were considered independent contractors and not employees. Beach recalled taking Fields and his wife in the van once or twice in November 2001 to canvass neighborhoods in Savannah, although he testified that he never made sales calls in Clyo, a town near Savannah where both Fields and Underberg resided.

Beach also submitted an affidavit in which he averred that promotions representatives were encouraged to contact friends and neighbors on their own time to sell the systems, and that Fields and his wife brought in at least one contract. There was no evidence, however, that Fields was paid a commission.

Mitchell Glenn Payne, who was Southern Alarm's general sales manager at the time of Underberg's abduction, testified that members of the promotions team were not authorized to enter a prospective buyer's home absent a background check; that ADT advised Southern Alarm that background checks were not required unless the worker was entering a home; that when Southern Alarm first opened in Savannah, background checks were conducted on promotions representatives; and that the practice was discontinued due to the "tremendous turnover" in those positions.

Underberg deposed that in the summer of 2001, she filled out a form at a National Night Out in Springfield and placed it in a box at a booth operated by Southern Alarm and ADT, although she was not positive that the box belonged to Southern Alarm. Underberg wrote her name, address, and telephone number on the form, which asked whether she was interested in having someone contact her about installing a security alarm system. According to Payne, Southern Alarm twice participated in National Night Out in Savannah, but not in Springfield.

Underberg further testified that on two occasions in November and early December, Fields knocked on her door and asked to come in and speak with her about an ADT system. She declined both times explaining that she was busy, and asked him to return another time. Fields left what Underberg described as a "general ADT form" during the first visit. Fields came to Underberg's home a third time, in December, but she was not at home. Underberg testified that during this period of time, Southern Alarm's name and telephone number appeared on her caller identification system "a lot," and Southern Alarm was the only ADT franchise that ever tried to contact her.

On the day of the kidnapping, February 6, 2002, Underberg deposed that she went home from work in the early afternoon to pick up medicine for her daughter. As usual, she parked in her garage and entered the house through an unlocked door, leaving the garage door up. While Underberg was straightening up her bedroom, she noticed Fields standing in the doorway. Underberg asked if she could help him. Fields responded by pulling out a gun and pointing it at her. He told her to sit on the bed. Fields asked Underberg whether she recognized him. She did not remember him until he identified himself as "the ADT salesman." Fields bound her with duct tape, placed her in her own car, and took her to South Carolina. After Underberg promised to give him $6,000, he drove her home to Clyo, and she took him to his house.

1. Underberg contends that the grant of summary judgment was error because Southern Alarm owed her a duty to perform a background check on Fields. Although the trial court did not address this issue in its order, Southern Alarm argued it on summary judgment, and we will consider it on appeal.³

The question is not only whether Southern Alarm owed a duty to Fields but whether it breached that duty. These are questions of fact that a jury must resolve. "The appropriate standard of care in a negligent hiring/retention action is whether the employer knew or should have known the employee was not suited for the particular employment."⁴ Stated differently, "a defendant employer has a duty to exercise ordinary care not to hire or retain an employee the employer knew or should have known posed a risk of harm to others where it is reasonably foreseeable from the employee's `tendencies' or propensities that the employee could cause the type of harm sustained by the plaintiff 34;⁵ Moreover, "[w]hether or not an employer's investigative efforts were sufficient to fulfill its duty of ordinary care is dependent upon the unique facts of each case."⁶ Thus, in C.K. Security Systems v. Hartford Accident & Indem. Co.,⁷ it was held that a security service offering the use of its employees to patrol premises for the purpose of protecting persons and property "may have been duty bound to exercise a greater amount of care to ascertain [whether] its employees were" suited to perform the services in question.⁸ Here, a jury could find that Southern Alarm owed a heightened duty to ascertain whether individuals it hired, even briefly, to enter homes of unsuspecting persons for the purpose of selling security systems were suited for this purpose. Generally, the determination of whether an employer used ordinary care in hiring an employee is a jury issue.⁹ In the case at bar "[w]e cannot say that the evidence adduced was sufficient to demand a finding as a matter of law that the defendant had exercised due care in screening the employee in question."¹⁰

In addition, a question of fact concerning Southern Alarm's duty to perform background checks on promotions representatives is raised by its Dealer Agreement with ADT. The Agreement states that Southern Alarm "represents and warrants that all of its employees utilized to perform services under this Agreement have successfully passed a drug screen and a criminal background check." "Representatives" are defined in the Agreement as "officers, directors, employees, and agents." Underberg argues that, as a promotions representative, Fields was an employee who was required to undergo a background check. Southern Alarm contends that promotions representatives are independent contractors, not employees, so that no duty to screen them arises under the Agreement. ¹¹

We need not resolve the issue of Fields's employment status, however, because the deposition testimony of Timothy W. Breeden, southeast regional director for the ADT authorized dealer program, shows that even if promotions representatives were considered independent contractors, a jury question still exists as to whether they were properly screened. Although Breeden testified that he was...