Walter Champion Co. v. Dodson, No. A01A1204

• Decision Date: 17 October 2001
• Docket Number: No. A01A1205., No. A01A1204
• Citation: 252 Ga. App. 62,555 S.E.2d 519
• Court: Georgia Court of Appeals
• Parties: WALTER CHAMPION COMPANY v. DODSON. Dodson v. Walter Champion Company.

555 S.E.2d 519

252 Ga. App. 62

WALTER CHAMPION COMPANY v. DODSON.

Dodson v. Walter Champion Company.

Nos. A01A1204, A01A1205.

Court of Appeals of Georgia.

October 17, 2001.

Drew, Eckl & Farnham, Paul W. Burke, Atlanta, Andrew C. Matteson, for appellant.

Horton, Maddox & Anderson, Michael A. Anderson, for appellee.

SMITH, Presiding Judge.

After an intentionally set fire destroyed the inventory and office furnishings of her business, Donna Dodson filed this action against several defendants, including Walter Champion, Jr., who was the owner of the warehouse in which she leased space, and one of the other two tenants of the building, Walter Champion Company (WCC). The case was tried to a jury, and the trial court granted a directed verdict to Champion on all claims and to WCC on all claims except Dodson's claim for negligent retention of an employee. The jury reached a verdict in Dodson's favor, awarding her damages of $60,000. Following the denial of WCC's motion for judgment notwithstanding the verdict and Dodson's motion for new trial, WCC and Dodson appeal. WCC contends that the trial court erred in denying its motion for directed verdict on the negligent retention claim and that the trial court's charge on negligent retention was erroneous. Dodson cross-appeals, arguing that the trial court erred in granting a directed verdict to Champion on all claims and that sufficient evidence was presented to permit the jury to consider all of her allegations against WCC. In WCC's appeal, we reverse. We agree with WCC that the evidence presented at trial did not support any claim for negligent retention. In Dodson's appeal, we affirm in part and reverse in part. Although we cannot conclude that the record supports Dodson's remaining claims of liability against WCC, we conclude that the evidence raised issues of fact concerning Dodson's claim that Champion breached his duty to maintain the warehouse in a safe condition. We therefore affirm in part and reverse in part.

Dodson owned an industrial supply company and leased office space in a building owned by Champion. Champion owned WCC before selling it to Bob Ford, Jeff Ford, and Jay Clark in 1992. After the sale of the business, WCC also leased warehouse and office space from Champion. WCC subsequently allowed Dodson to store her inventory in a portion of the warehouse located behind her office. Dodson testified that WCC needed the space she was using as an office and, in exchange for her agreement to move her office to another part of the building, WCC allowed her to store her inventory in a portion of the warehouse. It is undisputed that Sherry Derryberry, a bookkeeper previously employed by Champion and retained by WCC, intentionally set fire to the building in an apparent effort to cover up her theft from the company.

Dodson filed this action against Champion and WCC, among others, claiming that by allowing her to store her inventory in the warehouse, Champion and WCC assumed a duty to exercise ordinary care to keep the inventory safe. She alleged that this duty included an obligation to insure the inventory and equipment against loss. Whether WCC negligently retained Derryberry became another issue at trial.

1. In Case No. A01A1204, WCC argues that the trial court erred in denying its motion for directed verdict on the negligent retention claim. We agree.

To show that an employer was negligent in retaining an employee "with violent and criminal propensities," a plaintiff must show that the employer "knew or should have known of those dangerous propensities alleged to have resulted in [the plaintiff's] injuries." Edwards v. Robinson-Humphrey Co., 164 Ga.App. 876, 880(3), 298 S.E.2d 600 (1982). See also Bunn-Penn v. Southern Regional Med. Corp., 227 Ga.App. 291, 294(2), 488 S.E.2d 747 (1997).

Dodson contends that the owners of WCC knew about prior thefts committed by Derryberry while employed by Champion and that this knowledge rendered her violent act of setting fire to the building foreseeable. This theory fails on two grounds. First, the record does not show that the owners of WCC had knowledge that Derryberry had committed any thefts against the company. It is true that Champion testified that while in his employ, Derryberry had failed to pay back a loan he had made to her and that she attempted to steal some cash but was caught. Also, it is not disputed that he planned to terminate her when he sold the company to WCC but that the new owners "chose to keep her on." The record does not show, however, that the new owners knew about the attempted thefts before they purchased the company, or that they otherwise had any knowledge before they chose to retain her that Derryberry had taken any money from the company. In fact, one owner testified that "we would trust [Derryberry] with our last dollar." We also note Dodson's testimony that she did not know at the time of the fire "that [Derryberry] had been a dishonest employee."

But even assuming, without deciding, that the new owners somehow may have had knowledge that Derryberry had attempted to steal money from the company before they retained her as an employee, we cannot agree that this knowledge made Derryberry's destruction of the building foreseeable and that this knowledge was the proximate cause of Dodson's damages. A plaintiff asserting a claim of negligent retention must show the employer's knowledge that an employee was likely to commit the particular tortious act that allegedly resulted in the plaintiff's damages: "An employer's liability for negligent hiring or retention of an employee requires proof that the employer knew or should have known of the employee's propensity to engage in the conduct which caused the plaintiff's injury. Proof of such leaning must consist of evidence substantially related to the injury-causing conduct." (Punctuation and footnotes omitted; emphasis supplied.) Harper v. City of East Point, 237 Ga.App. 375, 376(2), 515 S.E.2d 623 (1999).

Knowledge of prior attempted thefts of petty cash might have placed WCC on notice that Derryberry could be capable of further acts of dishonesty, but we cannot agree that these acts made Derryberry's act of violence against the company foreseeable. We note that the owners, as well as Dodson, testified that they had never seen Derryberry act violently or destructively. And although Champion testified concerning Derryberry's attempted thefts, he also testified that he had never seen her act in a way that would alert him that she might commit a violent act such as arson. Under these circumstances, we cannot conclude that the jury...