THIRD DIVISION BA RNES, P. J., BOGGS and B RA NCH, JJ.
N O TICE: Motions for reconsideration must be p hy sically received

in our cl erk’s offi ce within ten days of the date of decision to be deemed timely filed.

http:/ /www .gaappeal s.us/rul es/ July 16, 2014



## In the Court of Appeals of Georgia
A14A0455 . CGL FACILITY MANAGEMENT, LLC v. WILEY B ARNES , Presiding Judge. Keiana Wiley died when

Michael T

ha d Clay cro ssed the center line i n his employer’s pickup truc k and hit W iley’ s car hea d-on. Cla y’s blood teste d positive f or metham phetamine. Brya

ntWiley, acting as the adm inistrator of his wif e’s est ate and her surviving spo use, sued Clay for wrongful death and

sued Clay’s employer, CGL Facility Management, LLC , un der theor ies of re spondeat superior and ne gligent hiring, retention , entrust ment, and ma

intenance . The de fendants a ns w ered, a

nd following discovery, CGL m

oved for summar

y judgment, arguing that Clay was not
on the job when the collision occurred and that no evidence supported Wiley’ s other claim s. The trial court denied the motion without explanation but granted a certif icate of imm ediate review, a

nd this court

granted C GL’s applicati on for inte rlocuto r y2

appeal. For the reasons that fol low, we re verse the trial court’s denial of summ ary judgm ent to CGL on Wiley ’s claims of liability under theories of respondeat superior, negligent hiring and

retention , and negl igent training and m aintenanc e, but af firm the den ial of s ummar y jud gmen t o n Wi ley’ s n egl ig ent ent rus tmen t cl aim.

On appeal fr

om a gr ant of sum

mary judgm ent, we

con duct a

de novo review, and we view the eviden ce and the

inferenc es drawn

from i t in the light most favorable to the nonmoving party. A defe ndan t demonstrates entitlem

ent to sum

mary judgm ent by s howing that the record lacks evid ence suf

fic ient to cre ate a j ury iss ue on at lea st one essential elem ent

of the plaintiff’s case. The def endant does not need to affirm atively di sprove the plaintiff

’s case , but m ay prevail sim ply by pointing to the l ack of ev idence. If the defendant does so, the plaintiff cannot rest on his pleadings , but must point to specific evidence that gives rise to a triab le issue of

fact. Upshaw v. Roberts T

imber Co. , 266 Ga. App. 135 (596 SE2d 679) (2004). Viewed in the light m

ost favora ble to Wiley, the evidence showe dthat in 1995, Clay began working for the State at the Milledgeville Youth Deten t ion Center (YDC), first in the wa rehouse, then in

maint enance a s an appre ntice lock smith. In 2001, the State privatize d the maint enance of its Depar tment of Juvenile Justice (DJJ) facilities and CGL obtained the contra ct. Clay ap plied for a job with CGL an d underwe nt a criminal background check and d rug test. When a sked at depo sition w hether there3

were “any issues at all with either a drug test or [his] criminal background history when [he was] hired by CGL,” Clay invoked h is Fifth A

mendm ent right to not incrim inate himse lf. He

testifie d that after CGL r

an a motor vehicl e history report on hi m, he began working a s a locksm ith at the M illedgevill e YDC a nd other fa cilities, specializ ing in lo cks and do or. The State closed the Milled ge ville YD C in 2008, a nd Clay rem ained at th e facility for a y ear as it s sole m aintenanc e ma n. In 2009 he

accepte d CGL’ s offer o f

a managem ent position in Augusta, overseeing the Augusta Regional Developm ent Center (RYDC ), the A

ugusta YD C, and a G eorgia Bureau of

Investiga tion crim e lab. CGL provided him

with a ve hicle beginning i n August 2010, and Clay began commuting to Augu sta to work

. Clay testified that the managem ent position in Augusta involved “ a lot of paperwor k” and the supervision of four employees, and that after a year he was demoted aft er a n au di t re vea led “alot of def iciencie s.” The

August YD C had no onsite vehicle a

nd the fac ility w as very

large, so w hile Clay

was allow ed to keep t

he compa ny truck after h is demotion to comm ute to and from work, other em ployees used the truck to run errands after Clay arr ived at the wo rk site. CGL al so continued to pay for insurance, gas, and m aintenance on the truck. Clay’s c o-worker testified4

that afte r the de motion, Clay began com ing in 30 minutes to an hour late and was “griping” th at the new su pervisor told him he had to start be ing at work on time. Clay testifie d that he ha d a motor vehicle accident in 1991 in Flo rida whe re he hit someo ne. He was not sur e if anyone was injured

or whether litigati on ensued, and when askedif he wa s cited for criminal char

ges, he to ok the Fift

h. He a lso “sl id into” another car in a Walma

rt parking

lot on an unspe cified da te, bu t he and the other driver just exchanged

insurance information and let their insurers take care of it rather than involving the

police. I n 2004, he w as hit from

behind whil e driving thecompa ny truck, repo rted the wreck to CGL, and was of f work for a week wi th whiplas h. In the Dec embe r 11, 2011, collision that led to this lawsuit, Clay suffered serious inj uries and w as out of w ork for a time. CGL re assigned him to a facili ty in Macon closer to his ho use and he returned t o light d uty work in Jan uary 2012. He was given a formal reprim

and shortly afterward for using a stat e com put er for personal

reasons and using the

compa ny cre dit card to pu t ga s in his personal car, then fired at the end o f February 2012 for deficien t performance. CGL’s Direct or of Hum

an Resourc es, who was h ired in Ma rch 2011, testified that before June 2012, either the company or the facility to which an em ployee was assigned ran pre- hiring drug t ests and cri mi nal backgr ound checks on all job1 In June 2012, a new com pany bought CGL a

nd now runs b ackground c hecks on all po tential emplo yees. 5 applicants

. 1 Itdid not run subsequent background checks unless there was a re ason to do so. CG L also ran motor vehicle reports (MVRs) on new hires, bu t after t hat first reportit relied

on its insure

r to m onitor

its em ployee s’ driving record s. The compa ny
ran MVRs on all new employ ees regardless of whether they were gi ven a com

pany vehicle, because each fa cility had an on-s ite vehicl e availab le to the e mployees to use
as needed. CGL relied on its em ployees to self-report an y s ubsequent a

rrests or tickets, and if they

did so th e company would the n run a new MVR and backgr ound check. When Clay wa s demoted from his supervisoryposition, CGL allowed him to keep the com

pany tr uck due to his lengthy comm ute, but although typically when an employee was dem

ot ed his file c ontained re lated paperwork, there w as no documentation

about that in Clay’s file. The di recto r had i nves tiga ted a s ubor dina te’s compl aint about Clay ’s attit

ude whilehe was a

supervisor , but no docu menta tion existed as to that investigatio n. Finall y, C GL em

ployee s were s uppos ed to r eceive annual reviews, but there were few wr itten repo rts in any

emplo yees’ files re garding those reviews prior to the current director ’s em

ployment, and o nly onereview in6

Clay’s file. C lay w as not revi ewed at the end of 2 0 11 beca use he wa s out after the crash, and the director asked his supervisor not to review him when he returned because he was not

at full ca pacity and she thoug

htit would not

be fair to review him then. CGL enumerates thr ee errors: the trial court erred in denying sum mary judgm ent on Wile y’s claim

that CGL

was liabl e for Cla

y’s ne gl igence under respondeat superior, in finding a n issue of f

act as t o whether CG L is liabl e for

n egligent hiring, retention, or entrust ment, and in finding an issue of fact as to whether CGL is l iable for

negligent m

aintenanc e. We

affirm the trial court’s denial of summ ary j udgmen

t on Wiley’s negligent entrustm ent claim but rever se as t o th e other clai ms. 1. CGL argues that

the record c ontains no ev idence to s upport W iley’ s claim t hat the compa ny was vic ario usl y liab le fo r Cla y’s ne gli gen ce u nde r a th eor y o f responde at superio r. We agree. When an em ployee is involved in acollision w hile opera ting a vehicle owned by his em ployer , a pres umption arises t hat he is ac ting within

the scope o f his emplo ym ent. Internation al Bus iness Mach ines v. B ozardt , 156 Ga. App. 794, 794-79 5 (275 SE2d 376) (1980). T he burden th en shi fts to the emplo yer “ to rebut the7

presum ption by evidencethat is clear, positive an d uncontrad icted and t

hat shows t

he servant was not in the scope of

his em ployment.” (C itations and punctua tionomitted.) Id. If the em

ployer presents e vidence tha

t the em pl oyee w as not

acting wi thin the scope of hi s empl oym ent, [t]heemplo yer i s thereaf

ter entitled to summ

ary j udgmen

t unless “other facts” are proffered — that is, additional evidence other t han the fact that the vehicl e was ow

ned by t he employer

— from which a j ury co uld reasonabl y infer tha t the em ployee was acting within t

h e co urse and scope of his em

ployment when t

he accident occurred. Where the “ other facts” are direct evidence, suc h is suf fici ent for t he c ase to g o to the jury. Where the “other

facts” a re circ umsta

ntial, however , such evi dence wi ll not defeat t he em ployer ’s m oti on for sum

mary judgm ent, unle ss it is sufficient to support a verdict in the plaintiff’s favor. (Footnotes omitted.) Littlefie ld Constr. Co. v. Bozeman , 314 Ga. App. 601, 603-604 (1) (725 SE2d 333) (201 2). Here, the fact

Clay was em

ployed by CGL

and driving a company truck raised the presumption he was acting wi thin the sco pe of his employm ent when the wreck

occurre d. CGL rebutted t he presum

ption by show ing that Cla

y wa s on his way

from ho me to work, and the burden thus shifte d to Wiley to show “other facts” from which

a jury could infe r that Cla

y wa s acting

within the

course an d scope of h is em ployment8

when the collisi on occurre d, eit h er with direct evidence or circumstantial evidence that would be su fficient

to support a

verdict. Clay testified that he was si mply

driving to work when the cras h occurre d. He w as not on his c ell phone to his em ployer , and he was not performing any er rands for CGL on his way to work. The only evidence Wiley can summon is that the truck was occasionally used by other em ployees once Clay arrived at the YD C facili ty, bu t t hat usa ge does not c hange the f act that w hile he was drivi ng to work , Clay was performing a pu rely personal er rand. “[Cla y] was driving the [truc k] to ful fill his duty of arriv ing at wor

k on time, and no e vid enc e sh owed tha t [Cl ay] was under taking a duty

at [CGL’s] direction at the time of the accident. In the absence of such evidence , [CGL] c ould not be he ld vicariousl y liable for [Clay’ s] torts.” Dougherty Equipm ent C

o. v. Roper , ___ Ga. App. ___ (Case No. A14A0620, decided May 1, 2014). Accord, Banks v. AJC Intl ., Inc. , 284 Ga. App. 22 , 24-25 (1), (2 ) (643 SE2 d 7 80) (2007) ( although dri ving compa ny vehicle, emplo yer entitled to summ ary j udgmen

t becauseemplo yee w as not prosecutin g busi ness of emplo yer or un derta king speci al missi on at employer’s direction); Braddy v. Collins Pl umbing , 204 Ga. App. 862, 863-86 4 (420 SE2d 806) (1992) (insufficient evidence contradicted employee’ s statement that he was driving work vehicle for the purpose of getting to work and nothing more).9

Acco rdi ngl y, the trial co urt erre d in deny ing sum mary judgm ent to CGL

on Wiley’s claim that CGL could be vicario usly liable fo r Clay’s negligen ce. 2. CGL contends that the trial court erred in denyin g its m otion for

summa ry judgment based on Wiley’s neglige nt hirin g, retentio n, and entru stment claims.

a. Negligent Hiring and R etention
. [For] an employer

to be liable fo r an autom obile acc ident under

the theory of neglige nt hiringand retention where, as here, the allega tion is that the em

ployee had a bad dr

iving recor

d and where the injured

driver was m erely

a me mber

of the general public on the publichighway , the accident could not hav e occurre d while the emplo yee w as sim

ply comm uting to work but had to occur while the employee was engaged in the employer’s bus iness. (Citation s and

punctuat ion omitted.) Dougherty Equipme nt Co. , ___ Ga. App. at ___. Becaus e Clay

was not ac ting in the sc ope of his e mploy ment w hen he cro ssed th e center line on his way to work

and collided with the car d riven by Wiley’s wife, CGL

was also en titled to summ ary j udgmen

t on Wiley’s negligent hi ring and re tention claim. b. Negligen t Entrust ment. Under the theory

of neglige nt entrustm

ent, liab ility i s predica

ted not on the doctrineof respondeat superior but on a negligent act of the owner10

in lending his vehicle

to another

to drive, with act

ual knowle dge that the driver is incom petent or h abitually

reckless , and this n egligence must concur, as a part

of the prox imate

cause, with the negl igent conduc t of the driver on account of his incom

petency and reckl essness. (Punctuat ion and citati on omitted.) Gill Plu mbing Co. v. Maco n , 187 Ga. App. 481, 482-483 (2) (370 SE2d

657) (1988) . A plaintiff may pre sent circumstantial evidence that an employer

has actual knowledge of an employee- driver’s habitual negligence. Ed Sherwood Chevrolet v. McAuley , 164 Ga. App. 798, 802 (1) (29 8 SE2d 565 ) (1982). For exam

ple, when an em

ployer ’s insurer, ac ting as the e mployer’s ag ent, inquires into the em

ployee ’s driving record , a jur y m ight “i nf er that the matters contained wit hin that driving record woul d be disco vered.” Id. “Further more, a plaintiff in a negligent entrustment action is not limited to showing a ctual know ledge of the entruster inasmuch as that plaintiff m ay show actual knowledge of a pattern of reckless driving or f

acts from which suc h knowledge

could rea sonably

be inferred.” (Citation and pu nctuatio n omitted; emphas is in orig inal.) Gill Plumbing Co. v. Macon , 187 Ga. App. at 4 83 (2). In this case, Wiley

introduced

evidencethat, in a ddition to tes ting positive for metha mphet amine

and am phetam ine after the collisi on at issue h ere, C lay’ s license

was suspended in 1989 after his third co nviction for driving unde r the influence . His11

previous DUIs oc curred in 1984 and 1986, and

in conjunc tion with the 1986 DUI he

was also convicted of obstructing a police offic er and simple b atter y. CGL’s human

resources director

testifie d that, although Cla y’s personnel file contained no record of any pre-em

ployment screening, com pany pol icy w as to run MVRs on all potential

new hires, a

nd either C GL or th e client in whose fa cility the em ployee would be working would run d

rug tests a

nd crim inal backgr

ound che cks . Additionally, Clay testifiedtha t when CGL hired him, he submitted to drug tests and the company ran a criminal backg round che ck on him. Clay’s testim ony, along with the testim ony of

the human

resource director that compa ny policy was to ru

n an MVR o n every

prospecti ve em

ploy ee, creates a question of fact a s to whether CGL h ad actual knowledge

of Clay ’s pattern of

driving while impai

red. Given this evi dence, a jury must r esolve the issue of whet her Cl ay’s prior DUIs in dicated th at he woul d drive under the influence again and whether CGL negligently entrusted him with a com pany vehicle. CGL argues that even if it knew about Clay’ s driving or criminal history , the offenses were to o rem ote in time to crea te any liability issues for

the com p any. We conclude that whether this prior knowledge created a direct liability under a theory of negligent entrustm ent

on CGL’ s part for

the dam ages resulting from Clay ’s ear

ly12

morning head-on collision is a question of fact for the jury to determ ine rather than a question of law for this court to decide. “Based on [circu mstant ial ev iden ce of CG L’s actu al] knowledgeof a series of serious drivinginfractions by a n empl oyee, there is a

question of fact on the

issue of negligen t entrust ment.” Dougherty Equipme nt Co. , ___ Ga. App. at _ __ (2). 3. Finally, CGL a

rgues that the trial cour

t erred in denying summ

ary j udgmen

t on Wile y’s claim s of negligent training and maintenance, and we agree. The record contains no eviden ce of negli gent train ing, nor does Wiley argue the

point in his

a ppellate brief. As to the maintenance of the company truck, when asked if it ha d experienced

any m echanical defects before t he accident, Clay responded that he had had a flat tire and was driving on the full-size spare that cam e with the

truck when the collision occurred. W i ley presented no evidence that the full-sized spare tire contributed in any way to the head -oncollision. We therefore agree w ith CGL that the trial co urt er red in deny ing the com

pany’ s motio n for sum

mary judgm ent on Wiley ’s negli gent train ing and m aintenanc e claim s. Judgment affirmed i n part an d reversed in part. B oggs and

Branch, JJ.,

concur .