June 15, 2021

Recent Developments: The Georgia Supreme Court’s Recent Opinion Significantly Alters Employer Liability

George T. Major, Jr.

The effects of Georgia’s 2005 sweeping tort reform legislation continue to alter the landscape for litigants. One of the latest alterations will most likely be considered by proponents of tort reform as an unintended consequence because it eliminates a doctrine that has long been favorable for employers. For several decades Georgia lawyers on both sides of the “v.” dealt with the decisional law rule known as the “Respondeat Superior Rule,” which states:

[I]f a defendant employer concedes that it will be vicariously liable under the doctrine of respondeat superior if its employee is found negligent, the employer is entitled to summary judgment on the plaintiff’s claims for negligent entrustment, hiring, training, supervision, and retention, unless the plaintiff has also brought a valid claim for punitive damages against the employer for its own independent negligence. Quynn v. Hulsey, Ga. 850 S.E.2d 725, 727-28 (Nov. 2, 2020) (Bethel, J. concurring in judgment only; McMillian, J. dissenting) (quoting Hosp. Auth. of Valdosta v. Fender, 342 Ga. App. 13, 21 (2017) (citations omitted)). In other words, once an employer admitted the agency relationship and that it would be vicariously liable for the negligence of its employee, any independent claims against the employer that arose from employing, training, supervising, or retaining that employee would collapse unless the plaintiff had a valid claim against the employer for punitive damages. The theory behind the Rule was that once the employer admitted it was responsible for the negligence, if any, of its employee, allowing independent claims against the employer for negligent hiring, retention, training, and entrustment would not entitle the plaintiff to any greater recovery but would serve to prejudice the employer. Id. (quoting MasTec North Am. v. Wilson, 325 Ga. App. 863, 865 (2014) (citation and punctuation omitted)).

The Rule’s obvious benefit to defendant employers was that evidence of poor hiring practices, training, retention, and supervision of employees would be deemed as irrelevant, immaterial, and prejudicial since it would not provide the plaintiff an avenue to recover any additional damages. An arguable benefit to plaintiffs is that the Rule incentivized defendants to admit the employee/employer relationship such that no further proof was required of this relationship.

The Respondeat Superior Rule was first adopted in Georgia in 1967 by the Court of Appeals in Willis v. Hill, 116 Ga. App. 848, 853-868 (1967), rev’d on other grounds, Hill v. Willis, 224 Ga. 263 (1968). As of November 2020, the Rule is no more after the Georgia Supreme Court held in Quynn v. Hulsey that Georgia’s 2005 enactment of sweeping tort reform legislation, and more specifically O.C.G.A. § 51-12-33 (the “apportionment statute”), abrogated the Respondeat Superior Rule:

[T]he claims encompassed by the Respondeat Superior Rule are claims that the employer is at “fault” within the meaning of the apportionment statute. Adherence to the Respondeat Superior Rule would preclude the jury from apportioning fault to the employer for negligent entrustment, hiring, training, supervision, and retention. Any allocation of relative fault among those persons at fault, which may include the plaintiff, could differ if one person’s fault was excluded from consideration. It follows that the Respondeat Superior Rule is inconsistent with the plain language of the apportionment statute.

Id. at 729.

In reaching its decision, the Georgia Supreme Court rejected several arguments made in defense of the Rule. First, the employer argued that abrogating the Rule would undermine Georgia’s comparative negligence doctrine because evidence of whether an employer had negligently hired, trained, entrusted, or retained an employee was not relevant to whether the employee was negligent in causing the plaintiff’s injury. Id. at 729. The Court rejected this argument finding instead that “[e]vidence tending to establish the employer’s fault would be of consequence to the determination of the action as the jury is required to consider the fault of ‘the persons who are liable’ and ‘all persons or entities who contributed to the alleged injury or damages.’” Id. at 729-730 (quoting O.C.G.A. § 51-12-33 (b)-(c)).

The Court next rejected the employer’s argument that the Rule was not abrogated by the apportionment statute because claims against the employer are derivative of the claim for the employee’s tortious conduct. The Court held that “claims that an employer was negligent are divisible from claims that its employee was negligent, and so are capable of being assigned percentages of fault.” Id. at 730. Similarly, the Court rejected the employer’s argument that it and its employee were ‘“working toward a common goal – the employer’s business’” such that fault from their concerted action was indivisible and not subject to apportionment. Id. at 731. In rejecting this argument, the Court noted that the “acts of an employer in negligently entrusting, hiring, training, supervising, and retaining an employee are the independent acts of the employer separable from the actions of the employee, not necessarily a concerted act between an employer and its employee.” Id. Lastly, the Georgia Supreme Court rejected the employer’s contention that the Georgia General Assembly did not intend to abrogate the Rule by enactment of the apportionment statute. Id.

The practical effects of this recent opinion and significant change in Georgia law remain to be seen. At the very least, litigants and lawyers should expect an expansion of discovery relating to acts of the employer as well as spending time to pursue or defend the employer’s acts at trial. Time will tell whether the new admissibility of the employer’s acts in the hiring, training, supervising, or retaining of its employee will lead to increasing verdicts and affect the way juries apportion fault for an injury between employee and employer.

Recent Posts