Helpful New GA Supreme Court Case on Premises Liability Intervening Proximate Cause and Negligent Hiring/Retention Under Color of Employment

CASE: JOHNSON v. AVIS RENT A CAR SYSTEM, LLC et al. and SMITH v. AVIS RENT A CAR SYSTEM, LLC et al., Nos. S20G0695, S20G0696, 2021 Ga. LEXIS 199 (Decided May 3, 2021).

Underlying Facts

These two companion cases arise from a car accident that occurred after Byron Perry stole a Ford Edge sport utility vehicle from the Avis rental lot where he worked for the lot operator, CSYG, Inc. Perry, while trying to evade police, crashed into Brianna Johnson and Adrienne Smith as they sat on a wall at a park. One suffered a crushed pelvis and other injuries and has endured 15 surgeries, including a full hip replacement. The other lost much of her left leg, which was severed from her body, and suffered a broken femur in her right leg, as well as a broken wrist and finger. 

Perry stole the car after business hours and wore an Avis shirt while he drove the stolen SUV to provide an excuse in the event that he were pulled over by police. Perry intended to sell the vehicle that night, and he testified that he drove the SUV around Atlanta “for a few hours” in the hope of finding a buyer. Before Perry could find a buyer, however, police in a patrol car spotted him at around 11:30 p.m., driving the SUV erratically. When the officers approached Perry, he sped off in an effort to evade them. Perry reached a speed of 73 miles per hour in a 25 mile-per-hour zone just before he lost control of the SUV and crashed into the wall where Johnson and Smith were sitting, severely injuring them. Plaintiffs sued Avis and the Avis rental lot operator, CSYG, Inc. After two separate jury trials, a ten-day trial in one case and a thirteen-day trial in the other, the jury found in favor of the Plaintiffs - one for $7 million and the other for $47 million. 

Plaintiffs presented evidence that there had been one prior car theft at the Avis location however, the prior theft was not followed by a high speed chase. Even though Plaintiffs presented no other direct evidence of additional car thefts at the Courtland Street location, because Avis had failed to produce and had destroyed certain “operator and location files” during discovery, the trial court gave a jury instruction that permitted an adverse inference — in other words, an instruction that allowed the jury to make an inference that information contained in those files “would have been prejudicial to [Avis].” Plaintiff also presented evidence at trial regarding Avis's general concerns about nationwide car rental thefts and Avis's use of a two-key system for its rental cars nationwide that made the cars more vulnerable to theft if someone were to cut one of the two keys from their common key ring. And Avis's National Security Manager, John Wotton, testified in his deposition that a car thief “could” attempt to evade police after stealing a rental car, and he further conceded that if one of Avis's vehicles were stolen that people “could be” seriously injured. 

Both cases were appealed to the Georgia Court of Appeals and that Court reversed both verdicts. The Georgia Supreme Court accepted Certiorari and Chief Justice Harold Melton wrote for the majority, affirming the Georgia Court of Appeals in throwing out both jury verdicts. The Supreme Court held Gwinnett County State Court Judge Joseph Iannazzone was wrong to deny the defense motions for judgment notwithstanding the verdicts. The defendants could not be held liable to Johnson and Smith as a matter of law. 

Questions Presented by the Georgia Supreme Court

1) Did the Court of Appeals err in determining that the employee’s intervening criminal conduct was the proximate cause of the petitioners’ injuries, such that the respondents were entitled to judgment as a matter of law on the petitioners’ direct negligence claims? The Supreme Court answered this question with a resounding “No.”

The Supreme  Court noted: “...even without knowing exactly how the SUV was stolen, we can assume for purposes of our analysis that Avis was negligent in allowing the vehicle to be stolen from its lot after hours, because the salient question in both cases is not about Avis’s alleged negligence, but about whether its alleged negligence was the proximate cause of the plaintiffs’ injuries.” 

The question presented in this case is whether, after the defendants negligently allowed Perry to gain access to a car key and find a way to drive an SUV past the locked gate on the rental car lot after hours, the evidence demanded the conclusion that the subsequent accident caused by Perry's criminal conduct was not a probable or natural consequence that could have been reasonably foreseen by the defendants. 

The Supreme Court held: “The evidence showed, at most, that an accident resulting in serious injuries during a high-speed chase following an after-hours car theft at the [Avis] facility was merely possible, according to occasional experience, and not probable, according to ordinary and usual experience. The evidence did not show that the injuries caused by Perry were the reasonably foreseeable “probable or natural consequence” of the defendants' alleged negligence in failing to secure the [Avis] lot and the SUV. A “probable or natural consequence” is not the same thing as a “possible” consequence where that possible consequence is not reasonably predictable. 

Even the spoliation inference pertains only to Avis's negligent failure to prevent such thefts, not to any inference that employees were disciplined for injuring bystanders outside of the employees' regular working hours and at locations completely unconnected to Avis. The Court reiterated, “the issue of Avis's negligence is separate from the question of proximate cause.” 

The defendants were entitled to Judgment Notwithstanding the Verdict due to Perry's intervening criminal conduct being the sole proximate cause of the plaintiffs' injuries in this case. 

2) Did the Court of Appeals err in Division 5 of the Smith opinion in determining that the respondents were entitled to a directed verdict on petitioner’s negligent hiring and retention claim, because their employee was not acting “under color of employment” when he collided with petitioner? Again, the Supreme Court answered this question with a resounding “No.”2) 

Because Perry did not injure Smith during his working hours, Plaintiff had to show that Perry was acting “under color of employment” when he injured her in order to sustain a potentially viable negligent hiring claim against CSYG. Perry was not accessing the vehicles after hours by virtue of his employment as a car washer; he was simply stealing a rental car after hours. The fact that Perry wore an Avis shirt when he stole the SUV does not suggest that he was acting “under color of employment” at the time of the collision, because the evidence presented at trial showed that Perry was wearing the shirt to cover up his crime if the police stopped him rather than as a means of representing to Smith that he was acting as an Avis employee when he collided with her. In other words, Perry's theft of an Avis rental vehicle and his subsequent accident involving Smith were not connected to his employment duties and were not accomplished by virtue of his employment at Avis.

Accordingly, the Defendant CSYG was entitled to a directed verdict on Smith's claims that they negligently hired and retained Perry.