*1 SONS, al. & INC. v. STANLEY et HARVEY FREEMAN 76387. SONS, et INC. RIVERS al. HARVEY FREEMAN & 76388. Presiding Judge. Deen, apartment Appellee-plaintiffs of an are minor female residents separate by Appellees complex appellant-defendant. filed com- owned subjected plaints against appellant, alleging that she had been sexually ongoing had been committed an series abusive acts which her husband. Mrs. Clark and appel- allegations denying answered, material discovery, complaints. appellant period filed a motion lees’ for After granted summary judgment mo- trial in each case. The supe- respondeat appellant’s under the tions appellant’s lia- However, as to rior. the trial court denied motions bility alleged negligent hiring or retention of for its own manager. immediate review its denials of The trial court certified for applications Appellant’s judgment. motions appel- interlocutory granted. appeal to lant’s an Because this court for were essentially
appeals upon same factual occurrences are based they hereby legal issues, consolidated and raise the identical disposition single opinion. in this manager of
The was a resident evidence showed that Clark by Harvey Bingham Apartments Inc., Sons, Freeman & Court owned Clark, man- at as resident the time the events occurred. Mrs. ager, provided apartment husband, Clark, on were Daniel repeatedly complex partic- premises. apartment At the Clarks ipated Bingham illegal premises and immoral on conduct Apartments employees had Freeman Court of which other knowledge. part- example, engaged swapping For the Clarks sexual admitted apartments; Clark ners with other residents of the having tenant; and residents had lesbian relations with another they in a involved sexual testified that threesome. were asked the Clarks drugs Additionally, possessed, used, and sold on the Clarks premises Bingham Apartments. in her Mrs. Clark admitted Court testimony Jenny deposition a, Raff the assistant Also, that the Clarks’ aware of such conduct. several tenants testified possession, illegal drugs knowledge” use, “common and sale of apartment complex. during appellees complain the summer
The acts of occurred girls Bingham During young time, were tenants of both Apartments; years appellee appellee old; the other one years years summer, old but became was 13 on old at start July 5th. appellee 28, led to the resident
On June Dan Clark one inside, manager’s something.” unit “show her Once Clark forced occurrence, Sandy Subsequent her. to this Clark sexual relations with contraceptives. attempted to make her take oral July, the Clarks had incident occurred later when second arranged trip lake. Al- camping to take both *2 they Friday, though were scheduled to leave on the Clarks were prepared, spent girls apartment. so the two the at the Clarks’ night During evening, the supplied girls the Clarks the with alcohol and marijuana, and then insisted that the and take a two minors undress shower, shower with them. After the the two were led to the bedroom Sandy where both and Dan Clark fondled them. young girls
Because the were confused and felt what had that night inexplicable occurred the be parents, would to their appellees trip following day made the to the lake with the Clarks the lake, going instead of Once they home. at the realized the repeat Clarks intended to night the same conduct of the before. One appellee was procure able to a apartments ride back to on a mo- torcycle, but, available, because no other form transportation of was appellee stay. was During day, forced to the course of the supplied Clarks appellee this marijuana with laced with cocaine. Later, both and, and Dan her despite Clark fondled her pro- tests, proceeded Dan to have sexual intercourse with her. Held:
1. Appellant contends theory that negligent of hiring/reten- tion is conceptually inappropriate under the case, facts of present relying Inc. v. Stegall, 184 Ga.
619) (1987), which “An states: examination dealing of cases with instance, reveals that in very at the least tortious act occurred during the working tortfeasor’s hours or em- ployee was acting under color employment. [Cits.]” supra at 28.
In Lear Siegler, the employee defendant’s had an automobile ac- cident while he was driving a company-supplied vehicle to work. The plaintiff claimed that the defendant in negligent hiring employee, but this court held that “under the facts of this case” the negligent hiring conceptually inapplicable. effect, Id. In holding in Lear acts to shield employers liability employee torts his commits public general. on the In the case, present however, the alleged 'committed, tortious conduct was public not on the in general, young but on two girls who were associ- ated appellant with through a relationship. landlord-tenant Because special of the relationship existing appellant between present case, employers direct would not rest simply upon their retention of an without re- gard to whether the ostensibly had committed a tort while acting capacity employee. landlord, bestow the
Furthermore, Freeman chose to as comprehensive manager Mrs. Clark Clark. duties of resident expected deposition as she her testified day. 24 hours a to be available to the tenants Siegler. It fit The case do not the rule facts sufficiently appellant, jury landlord, ful- to determine whether ordinary hiring/retention duty care in the filled its Clark. showing that there was no evidence also contends knowledge that the Clarks it had actual or constructive Apartments, Bingham presented danger to the residents allowing possessed information that the trial court erred imputable appellant. manager, Jenny Raffa, assistant merit.
Both contentions (a) hiring/reten appropriate of care standard known the knew should have tion action is whether the employee Cherry employment. particular suited for the was not 463) (1984); Kelly Lear, Sucs., 171 at 236 Ga. 235 deposition testimony, her Clark, in admitted that among knowledge drug apartment *3 the use and Mr. Clark’s was common the te Also, that several of dwellers. the evidence shows employees Bingham sexual knew of the Clark’s nants and of creating evidentiary perversity. Therefore, basis existed sufficient genuine either actual of to whether Freeman had fact as knowledge tendencies. constructive of the Clarks’ (b) knowledge Concerning of the assis the contention that the knowledge manager him, of an em tant ployee’s cannot to be attributable superior concerning practices is that attributable of McCluskey, App. corporation. 475, Oil Co. v. 119 Ga. the American 711) (1969). required the duties of assume As assistant Raffa necessity manager the if or if resident otherwise arose. Because Clark was unavailable responsible illegal and Clark was apartment premises, shows and the evidence immoral conduct on the required conduct, to assume Raffa then was that Raffa knew of this rectify manager these the situation. Under of resident and the role imputable knowledge Oil, is American Raffa’s circumstances and appellant corporation. failing to determine 3. claims trial court erred assumption by appellees’ is the doctrine of that cause action barred by ordinary provided by plaintiff § “If the of risk as care could have avoided the defendant’s OCGA 51-11-7: consequences himself caused (Emphasis sup- negligence, to recover.” he is not entitled bearing plied.) case, section, however, in this be- no has That Code injurious assaults, and not intentional sexual cause the acts were merely acts. negligent Banke, J., J., Judgments Birdsong, McMurray, C. P. affirmed. Benham, JJ., J., J., Sognier Pope, Carley,
P. and concur. and dis- J., Beasley, only the dissent. judgment sent. concurs in the Judge, dissenting. Carley, 1,
I majority cannot affirms the concur Division wherein the judgment trial court’s denial motion the issue for the or retention record, Clark. reviewing After am that the in- convinced Siegler, Stegall, Lear v. Inc. stant case controlled our decision 619) (1987). 184 Ga. App. Accordingly, respect- I must fully dissent. departs prosecution
“Where a servant his commits acting scope authority, a tort while of his person may employing him still liable if he failed Fouche, v. due care in the selection of his 26 Ga. servant.” Renfroe (3) (106 App. 303) (1921). However, SE examination “[a]n dealing cases instance, with hiring reveals that very least the tortious act occurred during tortfeasor’s work ing hours employment. was action under color of Stegall, Inc. v. supra at The evidence of rec [Cits.]” ord this case employed shows that Mrs. Clark was work leasing office of appellant’s apartment complex from hours p.m. a.m. to 5:30 It is undisputed, that sexual conduct attributed to Mrs. Clark her during husband did not occur scheduled office hours. See Inc. v. Com Security Systems Co., K. pare C. &c. Accident Hartford 453) (1976). undisputed It is also no sexual misconduct ever occurred in leasing office itself. See Stegall, supra. Compare Center, Slaton v. B & B Svc. Gulf (2) (344 (1986). majority presumably finds during conduct occurred Mrs. Clark’s “working employment hours” or “under color” *4 merely because she was on 24-hour call as the resident manager. Under theory, potential liability employers direct simply would rest upon hiring their or retention of an employee to be on 24-hour call employee to regard whether the had commit- ted a ostensibly acting tort while capacity a 24-hour on-call employee. Employers to exposed potential liability would be direct for any and all torts which were committed their 24-hour on-call em- ployee, if even torts no commission those had connection what- employment soever with the underlying entirely personal and were to employee himself. employee That the tort of retention of an does or 260 unquestion implicitly majority finds but far as
not extend so ably Stegall, employer Siegler There, the u. in Lear decided driving provided work, the car to car. While with a had “[B]ut This held: vehicle. court collided with another provided driving em [his he automobile for the fact that employee’s] posture ployer], no [the of the collision was time any employee driving work. decline to ex to We different from hiring parameters so as to action for tend the require every of the cause of investigate employees to work to whose drive hiring, expose employees’ driving or before themselves records supra liability.” v. at 28-29. Likewise in this to manager of case, appellant’s apartment but for the fact that Mrs. Clark was complex, alleged at the tor her status time any tious acts complex. no different other resident occurred entry employment gain Clark not to Mrs. did use status Compare appellees’ apartments any perpetrate tortious acts. (1) (307 App. Sharara, Tel. Co. Southern Bell &c. 665 (1983). 129) employment Clark did not use her status SE2d appellees’ thereby gain participating trust so as them into and confidence to induce Compare v. Robinson- Edwards acts. (1982). (3) (298 600) App. By Humphrey Co., 879 Ga. retaining manager, appellant Mrs. Clark as the resident and exposed appellees appellant accepted being had no more for harmed than as a There is sim
and retained Mrs. Clark tenant. ply employment no the tortious connection between Mrs. Clark’s against appellees. allegedly she acts and her husband committed any against appellant, appel If claim not in have it is capacity appellant’s Clark, ca lant’s as the of Mrs. but in apartment complex pacity as the owner who failed ordinary protect care to them from the misconduct of other tenants. 687) generally App. Parzen, See Razdan v. Ga. (1981); Organization Oglethorpe Potter, Veterans Fort 230) Georgia Bowling (1965); Enterprises v. Rob (1961). opinion, express bins, I no Ga. superior appellees’ respondeat however, complaints as whether counts against appellant capacity state a cause of in its action apartment summary complex judg or, so, the owner of the ment was was Appellees if whether properly granted such claims. not or denied as to cross-appeals grant appellant’s have no from the filed summary judgment motions respondeat superior its as to under issue is before us. As to the erroneously us, however, I trial believe that the judgment its direct lia denied motion for as to bility alleged negligent hiring Clark as retention of Mrs. employee. respectfully Accordingly, dissent.
I am authorized Judge Sognier joins to state that this dissent. Benham, Judge, dissenting. compelled am judicial policy of stare decisis to concur conclusion Judge Carley’s reached dissent judg-
ment on the of negligent improperly appel- denied lants.
This has previously employee’s decided that tortious conduct must have employer’s some connection with the employer will be held for negligent hiring liable of the em- Inc. v. ployee. (360 619) 184 Ga. (1987). There is no evidence in employee’s the case at bar that any relationship tortious acts had to her duties as employee. Implicit in the majority opinion an is the idea that em- ployer responsible should be for negligently hiring who is placed by the position in which there exists a for the infliction of harm on others. That expressly re- jected by a majority Stegall. of this court in See id. (Benham dissent). Stare decisis dictates the conclusion of law which must be reached on this set Norris v. & Atlanta West of facts. See Co., Point R. 684, 835) (1985). Since this court has seen fit overrule holding and the Gen- eral Assembly action, has taken no the judicial pol- we bound icy “tending consistency . .” Mitchell uniformity . of decision. State, 3, 509) (1977). — 28, Decided October
Rehearings denied November R. Chris Associates, Irwin & Irwin, R. Chris M. Kathleen Pacious, for appellant.
Calabro, Vogel Jennette, & Calabro, Michael M. Vogel, James R. Larry Jennette, Jr., F. Long, Weinberg, Ansley Wheeler, & Marvin Devlin, A. appellees.
76481. MACK v. THE STATE.
Benham, Judge. trial, Following a bench appellant was of trafficking convicted appeal, cocaine. On he enumerates as error the denial his motion to suppress as well as the trial court’s decision to call recess during appellant’s trial.