Lipham v. Federated Department Stores, Inc. ( 1993 )

Beasley, Judge,

concurring in part and dissenting in part.

I concur in the conclusion that the evidence precludes judgment against the department store based on its duty as owner or occupier of the premises, because plaintiff was only a licensee and the evidence conclusively shows that the employee did not act wilfully or wantonly. OCGA § 51-3-2. The duty of the owner or occupier of land is to keep the premises and approaches safe. OCGA § 51-3-1. This statutory duty relates to the condition of the premises and is grounded on defects or changes thereon. The extent of the duty depends on the status of the plaintiff in relation to the premises.

Decided March 3, 1993 — Reconsideration denied April 2, 1993 John M. Hyatt, for appellant. Drew, Eckl & Farnham, W. Wray Eckl, Elizabeth C. Helm, for appellee.

Plaintiff has pursued another theory as well, however. The evidence does not foreclose recovery based on the employee’s duty to exercise ordinary diligence in his actions wherever he is, a duty “raised by the law for the protection of others against unreasonable risks of harm.” Bradley Center v. Wessner, 250 Ga. 199, 200 (296 SE2d 693) (1982); OCGA § 51-1-2. See also Ellington v. Tolar Constr. Co., 237 Ga. 235, 237-238 (III) (227 SE2d 336) (1976). This does not depend on plaintiff’s status vis-a-vis location. There is some evidence that the employee negligently knocked plaintiff to the ground and that he was within the scope of his employment at the time. If those are found to be the facts, the employer would be liable vicariously under the doctrine of respondeat superior. OCGA § 51-2-2; McCranie v. Langdale Ford Co., 176 Ga. App. 281 (335 SE2d 667) (1985). In McCranie, as here, plaintiff was allegedly knocked to the ground and injured by an employee on the employer’s premises. Recovery was not based on a premises liability theory.

In order to hold the employer liable vicariously, or derivatively, it is not necessary to seek recovery against the employee also. A judgment against a master may be obtained without joining the servant. See Porterfield v. Gilmer, 132 Ga. App. 463 (208 SE2d 295) (1974), aff’d 233 Ga. 671 (212 SE2d 842) (1975). Of course, plaintiff must prove the servant/employee’s negligence.