JOHNSON v. AVIS RENT a CAR SYSTEM, LLC (Two Cases)
311 Ga. 588
| Ga. | 2021Background
- Avis leased an Atlanta rental location to independent operator CSYG; CSYG hired Byron Perry as a car washer. CSYG owner Yonas Gebremichael did not run a full criminal-background check on Perry, who had a prior criminal record.
- After hours in August 2013, Perry stole an Avis Ford Edge from the locked Courtland Street lot (he wore an Avis shirt while driving) and drove around looking for a buyer.
- Police spotted Perry driving erratically around 11:30 p.m.; Perry attempted to flee, reached high speeds, lost control, and crashed into Brianna Johnson and Adrienne Smith, severely injuring them. Perry later pled guilty to numerous vehicle and theft-related felonies.
- Separate juries awarded large compensatory verdicts to Johnson and Smith; the Court of Appeals reversed, concluding Perry’s intervening criminal conduct was the sole proximate cause (JNOV/directed verdicts), and that Perry was not acting “under color of employment” for negligent-hiring liability.
- The Georgia Supreme Court granted certiorari and affirmed the Court of Appeals: the defendants were entitled to judgment as a matter of law on the direct negligence claims because Perry’s criminal conduct was the intervening proximate cause; the court also affirmed the directed verdict on negligent hiring/retention as to CSYG and Gebremichael while rejecting part of the Court of Appeals’ rationale.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Perry’s intervening criminal conduct was a superseding proximate cause that precludes defendants’ liability on direct negligence | Avis’s lax security, recurring thefts (and spoliation inference) made a high-speed chase and injuries foreseeable; jury should decide proximate cause | Perry’s after-hours theft and flight were independent, unforeseeable criminal acts that sever the causal chain; defendants entitled to JNOV | Held for defendants: Perry’s criminal conduct was the sole proximate cause as a matter of law; foreseeability insufficient to defeat JNOV |
| Whether CSYG/Gebremichael are liable for negligent hiring/retention because Perry acted “under color of employment” | Perry’s job gave him access to vehicles/keys and his wearing an Avis shirt connected the theft/flight to employment; jury could infer employment nexus | Theft and flight were nonwork, unauthorized crimes unrelated to job duties, so not under color of employment; directed verdict appropriate | Held for defendants: Perry was not acting under color of employment; directed verdict for CSYG and Gebremichael affirmed (but appellate reasoning partially rejected) |
| Effect of spoliation/adverse-inference instruction | Lost operator/location files support a jury inference of additional thefts and knowledge, undermining foreseeability ruling | Even with inference, evidence did not make a high-speed chase and resulting injuries reasonably foreseeable as a matter of law | Court: adverse inference permitted but did not change outcome; proximate-cause ruling stands |
Key Cases Cited
- Ontario Sewing Machine Co., Ltd. v. Smith, 275 Ga. 683 (Ga. 2002) (an intervening independent wrongful act ordinarily severs liability unless the original actor had reasonable grounds to foresee it)
- Goldstein, Garber & Salama, LLC v. J. B., 300 Ga. 840 (Ga. 2017) (reiterates intervening-act rule and foreseeability inquiry)
- Long v. Hall County Bd. of Commrs., 219 Ga. App. 853 (Ga. Ct. App. 1996) (owner who leaves keys may not be liable for thief’s negligent operation absent evidence that dangerous result was foreseeable)
- McAuley v. Wills, 251 Ga. 3 (Ga. 1983) (proximate cause may be decided as a matter of law in plain, undisputed cases)
- Johnson v. American Nat. Red Cross, 276 Ga. 270 (Ga. 2003) (defines “probable” in foreseeability as “not unlikely” — a standard for proximate cause)
- Butler v. Warren, 261 Ga. App. 375 (Ga. Ct. App. 2003) (owner may be liable where actual knowledge of prior similar misuse makes dangerous conduct reasonably foreseeable)
- Harvey Freeman & Sons, Inc. v. Stanley, 259 Ga. 233 (Ga. 1989) (negligent hiring/retention requires the tort to occur during working hours or the employee to act under color of employment)
- Atlanta Obstetrics & Gynecology Group v. Coleman, 260 Ga. 569 (Ga. 1990) (proximate-cause inquiry requires both factual finding and legal evaluation of foreseeability)
- Hewitt v. Avis Rent-A-Car System, 912 So.2d 682 (Fla. Dist. Ct. App. 2005) (contrasting decision: jury question existed where repeated thefts and lax safeguards could make a high-speed chase foreseeable)