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By: Andy Treese and Jake Loken
The Supreme Court of Georgia has held that the state’s apportionment statute abrogates the “respondeat superior rule,” a decisional rule of law that had been in effect since 1967. As a result, employers now face increased exposure to liability on independent theories of negligent hiring, training, entrustment, and retention, even where they have admitted that their employee was in the course and scope of his employment at the time of a collision or other injury.
The old respondeat superior rule. Under the old respondeat superior rule, when an employer defendant in Georgia admitted its employee was in the course and scope of employment at the time of a plaintiff’s injury, and there was no valid claim for punitive damages, direct claims against the employer for negligent hiring/training/retention/supervision were subject to summary judgement. This encouraged employers to make early acknowledgements of vicarious liability, and avoided the need to unnecessarily bifurcate trials to avoid improperly prejudicing a defendant employee by admitting evidence of his prior conduct, while still allowing plaintiffs to put cases of truly egregious employer misconduct to a jury.
Georgia’s Apportionment Statute. In 2005, the Georgia legislature enacted O.C.G.A. § 51-12-33 (“the apportionment statute”), a centerpiece of a larger body of tort reform legislation. The statute requires a finder of fact to determine the plaintiff’s total damages; to determine the percentages of fault of each party or non-party at fault; and to apportion the damages amongst the persons who “are liable” according to their percentage of fault. The rule in Georgia remained, however, that plaintiffs were barred from recovery if they were 50% or more at fault for their injuries.
Quynn v. Hulsey. A plaintiff’s dreaded “50/50” verdict is precisely what happened in Quynn v. Hulsey, a case arising from an incident where a truck struck and killed a pedestrian who was trying to cross a street. The driver’s employer, TriEst, admitted the driver was in the course and scope of his employment, and the trial court, applying the respondeat superior rule, granted partial summary judgment to TriEst on claims of negligent entrustment, hiring, training, and supervision. At trial, the jury found that the plaintiff and driver were both 50% at fault – a finding which, under Georgia law, resulted in a defense verdict. The estate appealed, arguing the apportionment statute abrogated the respondeat superior rule and, as a result, TriEst should not have received partial summary judgment. The Georgia Court of Appeals affirmed in an unpublished opinion – possibly because it had already rejected the same argument in 2017. Hosp. Auth. v. Fender, 342 Ga. App. 13, 23 (2017).
The Supreme Court of Georgia granted certiorari and reversed, holding that a claim of negligent hiring, entrustment, training, or retention is a claim that the employer is “at fault” within the meaning of the apportionment statute for its own conduct, apart from the negligent conduct of its employee. As a result, the Court held, the respondeat superior rule is inconsistent with the plain language of the apportionment statue and must be abandoned.
If you have questions or would like further information, please contact Andy Treese at [email protected], Jake Loken at [email protected], or any other member of FMG’s Transportation Law Practice Group.