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FMG Law Blog Line

FMG Attorneys File Amicus Brief on Duties of Employer for Criminal Conduct of Employees

Posted on: November 13th, 2020

By: Phil Savrin and Alexia Roney

FMG attorneys Phil Savrin and Alexia Roney authored an amicus brief on behalf of the Georgia Defense Lawyers Association in support of appellees in the companion cases of Johnson v. Avis Rent A Car System, LLC and Smith v. Avis Rent A Car System, LLC on the question of legal duties owed by an employer for criminal conduct of an employee that is outside the scope of employment and away from the business premises. 

In these cases, an employee who stole a vehicle from the rental car lot where he worked ended up in running from the police and ultimately crashing into a brick wall thereby injuring the two plaintiffs. Two separate juries found Avis to be either partially or entirely at fault for damages of $7 million in one case and $47 million in the other case. The Court of Appeals reversed on several grounds including a finding that the trial court should have directed a verdict on the absence of proximate cause as a matter of law. 

The Supreme Court granted plaintiffs’ petitions for writs of certiorari on two questions: (1) whether the employee’s criminal conduct was an intervening proximate cause as a matter of law; and (2) whether the employee acted under “color of employment.” In its amicus brief, GDLA argues that the question of proximate cause is not reached because Avis did not owe a tort duty to plaintiffs in the first place which is a question of law for the court to resolve and not a jury. To hold Avis liable in these circumstances would essentially hold employers to be insurers of their employers’ conduct no matter how remote the injury might be. Similarly, on the second issue, GDLA argues that Avis had no control over the manner in which the employee used the stolen vehicle. As such, stretching the “color of employment” standard to apply would likewise create a duty “to all the world” which the Supreme Court has expressly rejected in previous rulings. 

The case is set for oral argument on December 8, 2020. 

If you have questions or would like more information, please contact Phil Savrin at [email protected] or Alexia Roney at [email protected].

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