311 Ga. 588
Ga.2021Background
- An Avis employee, Byron Perry, stole an SUV from an Avis-operated lot after hours, led police on a high-speed chase, and crashed into Brianna Johnson and Adrienne Smith, severely injuring them. Perry later pled guilty to multiple crimes and was imprisoned.
- Johnson and Smith sued Avis Rent A Car System, Avis Budget Group, the local operator CSYG, its owner Yonas Gebremichael, and a regional security manager; juries awarded large verdicts to both plaintiffs.
- On appeal the Court of Appeals reversed: it entered JNOV for Avis in Johnson (holding Perry’s intervening criminal conduct was the proximate cause) and directed verdicts for CSYG and Gebremichael in Smith (finding Perry was not acting under color of employment).
- The Supreme Court granted certiorari to decide (1) whether the employee’s intervening criminal conduct was the proximate cause as a matter of law and (2) whether Perry acted “under color of employment” for negligent hiring/retention liability.
- Trial evidence included Avis’s nationwide two-key practice, limited theft history at the specific lot, destruction of certain operator/location files (jury given adverse-inference instruction), and evidence of some prior theft-related incidents at other Avis locations.
- The Supreme Court affirmed the Court of Appeals: (a) defendants entitled to judgment as a matter of law because Perry’s intervening criminal conduct was the sole proximate cause of plaintiffs’ injuries, and (b) CSYG and Gebremichael were entitled to directed verdict on negligent hiring/retention because Perry was not acting under color of employment when he crashed into Smith.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether defendants’ negligence was superseded by employee Perry’s intervening criminal conduct (proximate cause) | Johnson/Smith: Avis’s failure to secure lot and prevent theft foreseeably risked third-party harm; juries could find proximate cause. | Avis: Perry’s intentional criminal acts were independent and unforeseeable; they were the sole proximate cause, so JNOV/directed verdict appropriate. | Court: Affirmed defendants’ JNOVs — Perry’s after-hours theft and flight were not a probable or natural consequence of defendants’ negligence under these facts; intervening conduct broke causal chain. |
| Whether Perry was acting “under color of employment” (negligent hiring/retention) when he crashed into Smith | Smith: facts (access to keys, employment, practices) permitted a jury to find Perry’s actions sufficiently related to employment to impose liability. | CSYG/Gebremichael: Perry’s theft and flight were outside hours, not within duties, and not done in a form purporting to be by reason of employment. | Court: Affirmed directed verdict for CSYG/Gebremichael — Perry was not acting under color of employment when he injured Smith (Court rejects some Court-of-Appeals reasoning but affirms result). |
Key Cases Cited
- Zwiren v. Thompson, 276 Ga. 498 (Ga. 2003) (proximate-cause definition and standard).
- Johnson v. Am. Natl. Red Cross, 276 Ga. 270 (Ga. 2003) (probable vs. merely possible consequences in proximate-cause analysis).
- Atlanta Obstetrics & Gynecology Group v. Coleman, 260 Ga. 569 (Ga. 1990) (foreseeability/proximate cause may be decided as matter of law only in plain, undisputed cases).
- Ontario Sewing Machine Co. v. Smith, 275 Ga. 683 (Ga. 2002) (intervening third-party wrongful act breaks causal chain unless original actor had reasonable grounds to foresee it).
- McAuley v. Wills, 251 Ga. 3 (Ga. 1983) (proximate cause ordinarily a jury question but may be decided by court in undisputed cases).
- Long v. Hall County Bd. of Commrs., 219 Ga. App. 853 (Ga. Ct. App.) (keys-left/owner-liability line of cases where thief’s conduct held sole proximate cause).
- Butler v. Warren, 261 Ga. App. 375 (Ga. Ct. App.) (owner may be liable if prior similar incidents gave actual knowledge creating foreseeability).
- Goldstein, Garber & Salama, LLC v. J.B., 300 Ga. 840 (Ga. 2017) (discussion of intervening acts and foreseeability).
- Hewitt v. Avis Rent-A-Car Sys., 912 So.2d 682 (Fla. Dist. Ct. App. 2005) (Florida case recognizing fact-specific foreseeability could preclude summary judgment in an employee-theft/high-speed-chase scenario; discussed but not followed).