Torts - Deron R. Hicks and Travis C. Hargrove

• Publication year: 2007

Tortsby Deron R. Hicks^* and Travis C. Hargrove^**

I. Negligent Hiring

In Underberg v. Southern Alarm, Inc.,¹ the Georgia Court of Appeals reversed a grant of summary judgment in favor of a home security services company and its authorized dealer in a negligent hiring action.² In November 2001 a dealership for a home security services company hired Bert Fields to act as a "promotions representative" for the dealer. As a promotions representative, Fields went door-to-door in residential neighborhoods selling security systems. Prior to hiring Fields, the dealer did not perform a background check. Had a background check been performed, the dealer would have discovered that Fields had been sentenced to life in prison in 1979 for burglary and kidnapping, and paroled in 1995.³

In late 2001, Fields contacted the plaintiff on several occasions at her home concerning the installation of a home security alarm system. In addition to at least three efforts by Fields to contact the plaintiff in person at her home, the dealership's name and telephone number appeared on the plaintiff's caller identification system on several occasions. In early February 2002 the plaintiff returned home in the early afternoon, parked her car in the garage, and entered her house through an unlocked door. In the process, she left her garage open. After entering the house, the plaintiff noticed Fields standing in the doorway. Fields pulled a gun on the plaintiff and asked her whether she recognized him. The plaintiff did not recognize Fields until he identified himself as a salesman for the dealer. Fields bound the plaintiff with duct tape, placed her in a car, and drove her to South Carolina. Fields released the plaintiff after she promised to give him six thousand dollars.⁴

The plaintiff thereafter brought suit against both the security alarm dealership and the security alarm services company. The trial court granted summary judgment in favor of the defendants, and the plaintiff appealed.⁵ On appeal, the plaintiff argued that the defendants had a duty to conduct a background check on Fields, the defendants had breached that duty, and the breach of that duty was the proximate cause of the injuries suffered by the plaintiff.⁶

According to the court of appeals, "'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.'"⁷ The court of appeals further noted that "a jury could find that [the dealer] 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 pur-pose."⁸ The court of appeals also noted that whether the dealer owed the plaintiff a duty to perform a background check and whether it breached that duty were questions of fact that must be resolved by a jury.⁹

Notwithstanding the issues of whether the defendants had a duty to perform a background check and whether the defendants breached that duty, the court of appeals still faced the issue of whether a jury could conclude "that the failure to investigate Fields's background [was] a proximate cause of[the plaintiff's] abduction."¹⁰ The defendants argued that proximate cause could not be established because Fields's act "was not committed within the tortfeasor's working hours" and "because Fields did not use his association with [the dealer and the alarm services company] as a ruse to gain entry into [the plaintiff's] home on the date he abducted her."¹¹

The defendants based their argument upon the decision in TGM Ashley Lakes, Inc. v. Jennings¹² in which the Georgia Court of Appeals held that "'liability does not attach if the employee committed the tort in a setting or under circumstances wholly unrelated to his employ-ment.'"¹³ The court of appeals in Underberg, however, held that the defendants' argument constituted "an overly restrictive application of TGM."¹⁴ In reaching this conclusion, the court of appeals was "persuaded by cases from other jurisdictions that neither the termination of the employment relationship nor the passage of time break the causal connection as a matter of law."¹⁵

The court first addressed the defendants' argument that Fields had not committed the acts at issue during his working hours.¹⁶ The court rejected this argument on the basis that "[c]ircumstantial evidence exists from which a jury could infer that Fields's contact with [the plaintiff] was employment-related."¹⁷ In particular, the court noted that promotions representatives, such as Fields, were encouraged to contact friends and neighbors outside of working hours to sell security sys-tems.¹⁸ The court concluded that because the plaintiff and Fields resided in the same town, "the [defendants'] policy empowered him to contact her."¹⁹

The court of appeals also rejected the argument that because Fields entered the plaintiff's home through an unlocked garage door, instead of using his position as an employee of the company to gain entry, the abduction was unrelated to his employment.²⁰ The court of appeals rejected this argument on the basis that:

"It remains to be seen in the development of the facts whether the surreptitious entry . . . was the result of the employment of the felon; whether the felon's background projected the risk; and whether defendant[s] had any knowledge of this background or could have acquired such knowledge. It remains to be determined whether

defendant[s] took the precautions . . . reasonable [persons] would be required to take under the circumstances."²¹

The decision in Underberg is troubling. On its surface, it would appear that Fields's employment by a dealer of residential security systems is in some manner relevant to the court's determination that a material issue of fact existed that precluded summary judgment. However, a closer examination of the decision draws this conclusion into question. The decision makes it clear that Fields did not gain entry into the plaintiff's home by virtue of his position as an employee or independent contractor of the defendants. That is, the plaintiff did not invite Fields into her home in his capacity as a promotions representative. This appears to be the most obvious risk entailed by the defendants' failure to conduct a background check on a person in that position. Fields, however, simply knew who the plaintiff was and where the plaintiff lived. Otherwise, the fact that he sold residential security systems was irrelevant. Fields could have derived the information regarding the plaintiff's identity and address by working in any number of different companies, industries, or capacities.

The decision in Underberg raises the issue of whether the duty to conduct background checks of employees has now been expanded to include employees in positions previously unconsidered. That is, does the decision in Underberg establish a duty to perform a background check on any employee who may have access to a customer's identity and address?

II. Premises Liability

In McAfee v. ETS Payphones, Inc.,²² the Georgia Court of Appeals affirmed the grant ofsummary judgment to the defendant in a premises liability action arising from injuries suffered by the plaintiff as a result of criminal damage to a payphone.²³ The defendant, ETS Payphones, owned approximately 2500 payphones in Georgia. In late 2003 ETS Payphones experienced an increase in incidents of theft from their payphones.²⁴ Apparently, the thieves stole money from the payphones "by drilling out the payphone's locks, which would loosen the phone's casing from its base but would leave the phone fully functioning."²⁵ Under those circumstances, the only way that ETS Payphones could determine that a phone had been subjected to theft or other tampering was to physically inspect the phone.²⁶

On July 22, 2004, the plaintiff stopped at a gas station to use one of the defendant's payphones.²⁷ Although the payphone was functioning, "the phone's lock had been drilled and its cast-metal casing had been loosened from its base as a result of a theft."²⁸ During the course of making his phone call, the plaintiff knelt on the ground to prevent the wind from blowing away his paperwork. As he did so, the upper casing of the payphone fell on the plaintiff's head.²⁹ The plaintiff filed a negligence action against ETS Payphones and alleged that the defendant failed "to exercise ordinary care to protect him from the hidden danger posed by its theft-damaged payphone."³⁰ ETS Payphones moved for summary judgment, and the trial court granted the motion.³¹ The plaintiff appealed, "arguing that genuine issues of material fact exist[ed] as to whether ETS had superior knowledge of the danger posed by its damaged payphone and as to whether it exercised ordinary care to protect invitees from such danger."³² The court of appeals disagreed and affirmed the trial court's decision.³³

In affirming the trial court's decision, the court of appeals noted that " '[t]he true basis of a proprietor's liability for personal injury to an invitee is the proprietor's superior knowledge of a condition that may expose the invitees to an unreasonable risk of harm.'"³⁴ Moreover, the owner of a premises can only be liable for a third-party criminal act if the crime is foreseeable and the owner fails to take steps to guard against injury.³⁵ The court further held, however, that "'[i]n order for the crime at issue to be foreseeable, it must be substantially similar to previous criminal activities occurring on or near the premises such that a reasonable person would take ordinary precautions to protect invitees from the risk posed by the criminal activity. "³⁶ The court of appeals observed that no evidence suggested ETS Payphones had actual knowledge of the danger posed by the specific payphone that injured the plaintiff or the danger posed to other customers because of damage caused during a theft.³⁷

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