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A PRIMER ON EMPLOYER LIABILITY IN GEORGIA: RESPONDEAT SUPERIOR, NEGLIGENT HIRING, RETENTION, AND ENTRUSTMENT

Posted by Susan J. Levy

An employer may be liable for negligent hiring/retention when the employer knew or in the exercise of ordinary care, should have known, the employee was unsuited for the particular employment. Western Indus., Inc. v. Poole, 280 Ga. App. 378 (2006) (emphasis added). The question of whether the employee is suited for employment is resolved by examining the particular job in question. For example, in CSX Transp., Inc. v. Pyramid Stone Indus., Inc., 2008 U. S. App. LEXIS 20001 (11th Cir. 2008), the Court held that an employee was suitable for quarry work given his prior experience operating heavy equipment, despite a prior criminal history of violent crime. Id. To recover punitive damages for the employer’s negligent hiring/retention, the plaintiff must show the employer had actual knowledge “of numerous and serious violations on its driver’s record, or, at the very least, . . . the employer has flouted a legal duty to check a record showing such violations.” Western Indus., Inc., 280 Ga. App. at 380.

A completely separate claim against an employer, with a different standard of proof, is a claim of negligent entrustment. “Under the doctrine of negligent entrustment, a party is liable if he [or she] entrusts someone with an instrumentality [such as a motor vehicle], with the actual knowledge that the person to whom he has entrusted the instrumentality is incompetent by reason of his age or inexperience, or his physical or mental condition, or his known habit of recklessness.” Parker v. Silviano, 284 Ga. App. 278, 281 (2007) (quoting Danforth v. Bulman, 276 Ga. App. 531, 535 (2005)) (emphasis added). Thus constructive knowledge, i.e., that the party should have known the entrustee was not competent, is not sufficient to establish a cause of action for negligent entrustment.

An employer may also be liable for the acts of its employee through respondeat superior; where the employer is vicariously liable for the torts of its employees committed in the course and scope of their employment. If the defendant employer admits such responsibility under the doctrine of respondeat superior, it is entitled to summary judgment on the plaintiff’s claims of negligent hiring, retention, or entrustment because the plaintiff is entitled to no greater recovery than that under respondeat superior. Durben v. American Materials, Inc., 232 Ga. App. 750 (1998). Put another way, in cases alleging an employer’s liability under both respondeat superior and negligent entrustment, for example, Georgia courts have held that “a defendant employer’s admission of liability under respondeat superior [i.e., that its employee was acting within the course and scope of his employment with the employer at the time of the tortious conduct] establishes ‘the liability link from the negligence of the driver . . . rendering proof of negligent entrustment unnecessary and irrelevant.'” Bartja v. National Fire Ins. Co., 218 Ga. App. 815, 817 (1995) (quoting Thomason v. Harper, 162 Ga. App. 441, 442-443 (1982)). This rule also protects the employee driver from the introduction of the prejudicial evidence of his prior driving record and general character for recklessness in driving.

If the plaintiff claims punitive damages, however, based on the independent torts of negligent hiring, retention, or entrustment, the claims are not duplicative with respondeat superior, and these claims may proceed. Id. In that event, the court must conduct a separate trial for the issues of negligent hiring, retention, or entrustment. Id. “Clear and convincing evidence of [the employer’s] ‘willful misconduct, malice, fraud, wantonness, oppression, or that entire want of care which would raise the presumption of conscious indifference to consequences’ is required to warrant the imposition of punitive damages. Bartja, 218 Ga. App. 815, 818, (quoting O.C.G.A. § 51-12-1-5.1(b))

The employer may also be vicariously liable for punitive damages based on the employee’s acts if the acts are committed by the employee in the course of the employer’s business as well as in furtherance of the employer’s business. May v. Crane Bros., Inc., 276 Ga. 280 (2003). If the employee’s tortious conduct is sufficient to warrant punitive damages pursuant to O.C.G.A. § 51-12-5.1(b), then the employer’s liability under the doctrine of respondeat superior includes the vicarious liability for punitive damages.