JOHNSON v. AVIS RENT a CAR SYSTEM, LLC (Two Cases)

In the Supreme Court of Georgia
Decided: May 3, 2021
S20G0695. JOHNSON v. AVIS RENT A CAR SYSTEM, LLC et al.
S20G0696. SMITH v. AVIS RENT A CAR SYSTEM, LLC et al.
MELTON, Chief Justice.
These cases arise from a car accident that occurred after Byron
Perry stole a sport utility vehicle (SUV) from a rental lot where he
worked and later crashed into Brianna Johnson and Adrienne Smith
while Perry was trying to evade police. Johnson and Smith
(“plaintiffs”) each filed a lawsuit alleging claims of negligence and
vicarious liability against the rental car company, Avis Rent A Car
System, LLC and Avis Budget Group (collectively “Avis”), along with
Avis’s regional security manager, Peter Duca, Jr.; the rental
location’s operator, CSYG, Inc.; and CSYG’s owner, Yonas
Gebremichael. Johnson and Smith also sued Perry, the CSYG
employee who stole the SUV involved in the accident, although
Johnson dismissed Perry before trial.
Separate juries found that Johnson and Smith were entitled to
recover damages, 1 but both jury verdicts were reversed on appeal.
In Avis Rent A Car Sys., LLC v. Johnson, 352 Ga. App. 858 (836
SE2d 114) (2019), the Court of Appeals concluded that Avis – the
only entity found liable for compensatory damages in Johnson’s case
– was entitled to judgment notwithstanding the jury’s verdict
(JNOV) on Johnson’s direct negligence claims because Perry’s
intervening criminal conduct 2 was the proximate cause of Johnson’s
1 In Johnson’s case, the jury found that Avis was 100% at fault for
Johnson’s injuries and that Johnson was entitled to recover $7 million in
damages from Avis. The jury found that CSYG, Gebremichael, and Duca were
0% at fault, and further found that Perry was 0% at fault as a non-party, but
also found that Perry was liable for punitive damages. In Smith’s case, the jury
returned a $47 million verdict in favor of Smith, apportioned 50% to Avis, 1%
to Duca, 15% to CSYG, 1% to Gebremichael, 33% to Perry, and 0% to “N.O.” (a
non-party who Perry claimed was actually driving the stolen SUV).
2 In connection with the incident, Perry pled guilty to two counts of
serious injury by vehicle (OCGA § 40-6-394), two counts of hit and run
resulting in serious injury (OCGA § 40-6-270), one count of reckless driving
(OCGA § 40-6-390), one count of fleeing and attempting to elude police (OCGA
§ 40-6-395), one count of failure to maintain lane (OCGA § 40-6-48), and one
count of felony theft by taking (OCGA § 16-8-2), and was sentenced to 20 years
to serve in prison.
2
injuries. See id. at 863 (2) (b).3 And in Avis Rent a Car Sys., LLC v.
Smith, 353 Ga. App. 24 (836 SE2d 100) (2019), in addition to
concluding that any breach of duty to secure the car rental lot and
the stolen SUV was not the proximate cause of Smith’s injuries (due
to Perry’s intervening criminal conduct), the Court of Appeals also
concluded that CSYG and Gebremichael were entitled to a directed
verdict on Smith’s claims that they negligently hired and retained
Perry, because Perry was not acting “under color of employment” at
the time that he collided with Smith. Id. at 25 (2) and 29-30 (5).
Johnson and Smith petitioned for certiorari review in this
Court, and we granted their petitions to address the following
questions: (1) Did the Court of Appeals err in Divisions 2 of the
opinions below in determining that the employee’s intervening
criminal conduct was the proximate cause of the plaintiffs’ injuries,
3 The Court of Appeals also concluded that Avis was entitled to JNOV on
Johnson’s claims that Avis was vicariously liable for CSYG and Gebremichael’s
negligence, including the negligent hiring and retention of Perry, because the
verdicts in favor of CSYG and Gebremichael eliminated any basis for holding
Avis liable through a theory of respondeat superior. See Johnson, supra, 352
Ga. App. at 864-865 (3).
3
such that the defendants were entitled to judgment as a matter of
law on the plaintiffs’ direct negligence claims? and (2) Did the Court
of Appeals err in Division 5 of the Smith opinion in determining that
the defendants were entitled to a directed verdict on Smith’s
negligent hiring and retention claim, because their employee was
not acting “under color of employment” when he collided with
Smith? For the reasons that follow, we determine that the Court of
Appeals correctly concluded that the defendants could not be held
liable to Johnson and Smith as a matter of law under the facts of
these cases. Accordingly, we affirm in both cases. However, we reject
some of the Court of Appeals’ reasoning in the Smith case.
Viewed in the light most favorable to Johnson and Smith,4 the
evidence presented at both trials showed the following. Pursuant to
an “Independent Operator Agreement” with Avis, CSYG was
4See, e.g., Pendley v. Pendley, 251 Ga. 30, 30 (1) (302 SE2d 554) (1983)
(“The standard for granting a directed verdict or a judgment notwithstanding
the verdict [is] the same. Where there is no conflict in the evidence as to any
material issue, and the evidence introduced, with all reasonable deductions
therefrom, shall demand a particular verdict, such verdict shall be directed.”)
4
responsible for the day-to-day operations of an Avis car rental
facility located on Courtland Street in Atlanta. In March of 2012,
Gebremichael hired Perry on behalf of CSYG to wash and refuel cars
at the facility. At the time that Perry was hired, he disclosed to
Gebremichael that he had been in prison, but he did not reveal the
extent of his criminal record, and Gebremichael did not conduct a
criminal background check to discover the extent of Perry’s record. 5
On the evening of August 23, 2013, Perry stole a Ford Edge
SUV from the Courtland Street rental location after the facility was
closed for the day. 6 Perry wore an Avis shirt while he drove the
5A criminal background check would have revealed that Perry’s criminal
record included arrests and convictions for, among other things, driving on a
suspended license, DUI and drug-related offenses, and theft by receiving a
stolen pickup truck in 1999 that involved reckless driving and an attempt by
Perry to elude police.
6 It is not clear from the record exactly how or when Perry stole the SUV
after the lot closed around 7:00 p.m., but the plaintiffs theorize that he may
have used bolt cutters to remove a spare key for the SUV from a key ring and
he may have used a stolen gate key to exit the rental lot. However, even
without knowing exactly how the SUV was stolen, we can assume for purposes
of our analysis that Avis was negligent in allowing the vehicle to be stolen from
its lot after hours, because the salient question in both cases is not about Avis’s
alleged negligence, but about whether its alleged negligence was the proximate
cause of the plaintiffs’ injuries. See Atlanta Obstetrics & Gynecology Group v.
Coleman, 260 Ga. 569, 569 (398 SE2d 16) (1990) (“To recover damages in a tort
5
stolen SUV to provide an excuse in the event that he were pulled
over by police. Perry intended to sell the vehicle that night, and he
testified that he drove the SUV around Atlanta “for a few hours” in
the hope of finding a buyer. Before Perry could find a buyer,
however, police in a patrol car spotted him at around 11:30 p.m.,
driving the SUV erratically. When the officers approached Perry, he
sped off in an effort to evade them. Perry reached a speed of 73 miles
per hour in a 25 mile-per-hour zone just before he lost control of the
SUV and crashed into a wall where Johnson and Smith were sitting,
severely injuring them.
action, a plaintiff must prove that the defendant’s negligence was both the
‘cause in fact’ and the ‘proximate cause’ of the injury.”) (citation and
punctuation omitted). We also assume only for purposes of addressing the first
certiorari question that Avis had a duty to protect Johnson and Smith from
harm. See Rasnick v. Krishna Hosp., Inc., 289 Ga. 565, 566 (713 SE2d 835)
(2011) (“In order to have a viable negligence action, a plaintiff must satisfy the
elements of the tort, namely, the existence of a duty on the part of the
defendant, a breach of that duty, causation of the alleged injury, and damages
resulting from the alleged breach of the duty.”) (citation omitted; emphasis
supplied). We do not address whether Avis, in fact, had any duty to protect
them from harm, as that issue is beyond the scope of the question presented.
We note, however, that if Avis had no duty, the plaintiffs’ claims would fail as
a matter of law, just as they would when the evidence is lacking on the issue
of proximate cause.
6
Prior to the incident involving Perry, one other car theft had
occurred at the Courtland Street location. This theft occurred in
2012,7 but there was no evidence presented that this prior theft
involved a high-speed chase or other danger to the public. 8
Nevertheless, evidence was also presented at trial regarding Avis’s
general concerns about nationwide car rental thefts 9 and Avis’s use
7 Duca, Avis’s regional security manager, testified that the Courtland
Street location “experienced zero theft or missing vehicles” in 2010 and 2011,
and Ryan Janos, the Avis district manager in Atlanta, testified that he was
unaware of any thefts occurring at the Courtland Street location in the 50
years prior to 2012.
8 In this 2012 incident, Perry was cleaning a Kia Sorrento when he
stepped away for a moment, leaving the keys in the car. A stranger then
jumped into the car and drove away. Perry immediately reported the car as
stolen, and an internal investigation by Avis led Avis to the conclusion that
Perry was not a party to the theft. Perry was never arrested or charged in
connection with this 2012 theft, but Gebremichael warned Perry that Perry
could lose his job if he ever allowed anything like the 2012 theft to happen
again.
9For example, between 2011 and 2013, about 500 cars were stolen per
year from Avis lots nationwide out of a nationwide fleet in 2013 of about
320,000 cars. Plaintiffs also presented evidence of a 2010 high-speed chase –
that did not result in injuries – after a rental car was stolen during the day
from an Avis lot in LaGrange, Georgia, and evidence of three other crimes
occurring after rental cars had been stolen in other parts of the country: (1) a
2001 incident in Tallahassee, Florida, where an Avis employee stole a car from
a rental lot and rented the car out in an unauthorized “side deal,” and the car
was then involved in a high-speed chase that ended in serious injuries to
another driver; (2) a 2011 incident in California where a stolen rental car was
7
of a two-key system for its rental cars nationwide that made the cars
more vulnerable to theft if someone were to cut one of the two keys
from their common key ring. 10 And Avis’s National Security
Manager, John Wotton, testified in his deposition that a car thief
“could” attempt to evade police after stealing a rental car, and he
further conceded that if one of Avis’s vehicles were stolen that people
“could be” seriously injured. 11
Even though Johnson and Smith presented no other direct
evidence of additional car thefts at the Courtland Street location,
because Avis had failed to produce and had destroyed certain
“operator and location files” during discovery, the trial court gave a
jury instruction that permitted an adverse inference – in other
used in a convenience store robbery and a hit and run; and (3) a 2013 incident
in Louisiana where employees stole a rental car that was later used in a
shooting.
10Avis maintained a two-key policy that required both car keys to remain
with a rental car at all times to ensure that the duplicate key would be
available when the time came to sell the car. The keys were supposed to be
connected to each other on a steel security cable so that they could not be
separated from each other without the cable being broken.
11 Wotton’s video deposition was played at both Johnson’s and Smith’s
trials, and Wotton testified at both trials.
8
words, an instruction that allowed the jury to make an inference
that information contained in those files “would have been
prejudicial to [Avis].” The operator and location files related to
Gebremichael’s operation of the Courtland Street location and a
North Carolina Avis location, and contained information on
disciplinary action taken after internal investigations into any
crimes or other infractions that occurred at the Avis locations in
question over the past several years. Thus, the prejudicial inference
that was reasonably raised by the missing files (and that the jury
was authorized to make based on the trial court’s instruction) was
that Avis must have known about additional car thefts at its
facilities because the company would have disciplined employees in
connection with at least some of these additional thefts. The jury
instruction read:
[Avis] destroyed the owner operator and location files for
CSYG Incorporated. At th[e] time th[at Avis] destroyed
the files, [it was] aware of the potential for litigation. The
plaintiff is entitled to a presumption that the owner
operator and location files would have been prejudicial to
[Avis]. The presumption may be rebutted by [Avis]. This
negative presumption does not apply to CSYG
9
Incorporated or to Yonas G. Gebremichael.
Johnson and Smith
Johnson and Smith argue that the Court of Appeals erred in
concluding that Perry’s intervening criminal conduct was the
proximate cause of their injuries, because the evidence presented at
trial on that issue did not demand a verdict in favor of the
defendants. See, e.g., Mosley v. Warnock, 282 Ga. 488, 488 (1) (651
SE2d 696) (2007) (“The appellate standard for reviewing the grant
of a judgment notwithstanding the verdict is whether the evidence,
with all reasonable deductions therefrom, demanded a verdict
contrary to that returned by the factfinder.”) (citations and
punctuation omitted). We disagree.
“Proximate cause is that which, in the natural and continuous
sequence, unbroken by other causes, produces an event, and without
which the event would not have occurred.” (Citation and
punctuation omitted.) Zwiren v. Thompson, 276 Ga. 498, 500 (578
SE2d 862) (2003). In this regard, a negligent actor who breaches a
duty to another “is not responsible for a consequence which is merely
10
possible, according to occasional experience, but only for a
consequence which is probable, according to ordinary and usual
experience.” Johnson v. Am. Natl. Red Cross, 276 Ga. 270, 273 (3)
(578 SE2d 106) (2003). It is important to recognize that
‘[p]robable,’ . . . in the . . . rule as to causation, does not
mean ‘more likely than not,’ but rather ‘not unlikely’; or,
more definitely, ‘such a chance of harm as would induce a
prudent man not to run the risk; such a chance of harmful
result that a prudent man would foresee an appreciable
risk that some harm would happen.’
Jeremiah Smith, Legal Cause in Actions of Tort, 25 Harv. L. Rev.
103, 116 (1911).
“The requirement of proximate cause constitutes a limit on
legal liability; it is a policy decision that, for a variety of reasons,
e.g., intervening act, the defendant’s conduct and the plaintiff’s
injury are too remote for the law to countenance recovery.” (Citation
and punctuation omitted.) Atlanta Obstetrics & Gynecology Grp. v.
Coleman, 260 Ga. 569, 569 (398 SE2d 16) (1990). The determination
of whether proximate cause exists “requires both factfinding in the
‘what happened’ sense, and an evaluation of whether the facts
11
measure up to the legal standard set by precedent.” Id. at 570. And,
while proximate cause is ordinarily a jury question, “it will be
determined by the court as a matter of law in plain and undisputed
cases.” (Citation omitted.) McAuley v. Wills, 251 Ga. 3, 7 (5) (303
SE2d 258) (1983).
Where, as here,
a defendant claims that its negligence is not the
proximate cause of the plaintiff’s injuries, but that an act
of a third party intervened to cause those injuries, the
rule is that an intervening and independent wrongful act
of a third person producing the injury, and without which
it would not have occurred, should be treated as the
proximate cause, insulating and excluding the negligence
of the defendant. Ontario Sewing Machine Co., Ltd. v.
Smith, 275 Ga. 683, 686 (2) (572 SE2d 533) (2002)
(Citation and punctuation omitted.) But, this rule does
not insulate the defendant “if the defendant had
reasonable grounds for apprehending that such wrongful
act would be committed.” Id. (Citation and punctuation
omitted.) Stated differently, if the character of the
intervening act claimed to break the connection between
the original wrongful act and the subsequent injury was
such that its probable or natural consequences could
reasonably have been anticipated, apprehended, or
foreseen by the original wrong-doer, the causal connection
is not broken, and the original wrong-doer is responsible
for all of the consequences resulting from the intervening
act. Id. (Citation and punctuation omitted.)
12
Goldstein, Garber & Salama, LLC v. J.B., 300 Ga. 840, 841-842 (1)
(797 SE2d 87) (2017).
Thus, the question presented in this case is whether, after the
defendants negligently allowed Perry to gain access to a car key and
find a way to drive an SUV past the locked gate on the Courtland
Street rental car lot after hours, 12 the evidence demanded the
conclusion that the subsequent accident caused by Perry’s criminal
conduct was not a probable or natural consequence that could have
been reasonably foreseen by the defendants. We hold that the
evidence in this case demanded such a conclusion.
As the Court of Appeals correctly concluded below, the present
case is analogous to those in which a car owner has left his or her
keys unattended and a car thief then uses those keys to steal the car
and causes an accident through his own negligent driving. See, e.g.,
Long v. Hall County Bd. of Commrs., 219 Ga. App. 853, 855 (1) (467
SE2d 186) (1996). In such cases, the car owner generally cannot be
12 Again, we assume without deciding that the defendants were
negligent, as the issue to be resolved here relates only to the question of
proximate cause.
13
held liable for injuries caused by the car thief because those injuries
would not ordinarily be something foreseeable to the car owner. See
id. (“[T]he [mere] fact that the keys were left in the unguarded
automobile would not authorize a recovery against the owner for the
injuries which were the result of [the car’s] subsequent negligent
operation by [the] thief.”). See also Butler v. Warren, 261 Ga. App.
375, 378 (2) (582 SE2d 530) (2003) (“Generally, a car owner does not
act negligently simply by leaving the ignition key in a parked
vehicle. Under certain circumstances, however, such conduct can
result in liability. For example, if an owner knows that, on previous
occasions when the key remained in the car, an incompetent driver
took it on joy rides, a jury could find the owner negligent in
subsequently leaving the key in the vehicle. This liability stems from
the owner’s actual knowledge and ability to reasonably anticipate
the taking.”) (footnotes and punctuation omitted); Price v. Big Creek
of Ga., 191 Ga. App. 534, 535 (382 SE2d 356) (1989) (“Mere
ownership of an automobile involved in a collision may not be made
the basis for holding an owner liable for the negligent operation of
14
the automobile without showing that the defendant owner was
guilty of some other negligent act which proximately contributed to
the plaintiff’s injury. The fact that the keys were left in the
unguarded automobile would not authorize a recovery against the
owner for the injuries which were the result of its subsequent
negligent operation by a thief.”) (citations and punctuation omitted).
Here, there was no evidence that the defendants did anything
more than negligently allow the SUV to be stolen from the
Courtland Street lot. The evidence did not show that the defendants
could have reasonably foreseen that Perry would lead police on a
high-speed chase hours after stealing a car from the Courtland
Street location and that a crash resulting in serious injuries would
be the reasonably foreseeable consequence of the theft. In this
regard, the direct evidence presented at trial showed that Avis was
generally concerned about potential thefts of its vehicles nationwide,
but that only one car theft had occurred at the Courtland Street
location prior to the theft committed by Perry. The other evidence
showed only two other specific instances of theft involving high-
15
speed chases among hundreds of thousands of vehicles at other Avis
lots nationwide in the decade before the incident involving Perry.
And, although one of these incidents (not resulting in injuries)
happened in LaGrange, Georgia, in 2010, this would not make it
reasonably foreseeable that a theft resulting in a high-speed police
chase and injuries would occur in connection with the Courtland
Street facility, which the direct evidence indicated had only one prior
car theft that occurred in 2012 and no other thefts for the 50 years
prior to 2012.13
And, with regard to the specific 2012 incident of theft at
Courtland Street, that theft was nothing like the 2013 theft in this
case, as it occurred during regular business hours with a third party
stealing the car and did not involve a theft by an employee, a high-
speed chase, or any other known danger to the public. Here, by
contrast, Perry stole the SUV after the Courtland Street lot was
closed and then drove around “for a few hours” looking for a
13But see also the discussion of spoliation, infra, relating to the adverse
inference the jury was permitted to make.
16
potential buyer for the SUV before being spotted by police. Perry
then decided to flee – apparently abandoning his initial plan to use
his Avis shirt as an excuse in the event that he got pulled over – and
crashed the SUV into a wall where Johnson and Smith were sitting.
While, as Avis’s National Security Manager testified, it is
possible that a car thief “could” attempt to evade police and that
people “could be” seriously injured if a thief took such actions (as did
Perry here), the direct evidence of the history and nature of thefts
at the Courtland Street location and at Avis locations in general
prior to the incident involving Perry did not show that the
defendants in fact “had reasonable grounds for apprehending that
[Perry’s] wrongful act [against Johnson and Smith] would be
committed.” Ontario Sewing Machine Co., supra, 275 Ga. at 686 (2).
To the contrary, the evidence showed, at most, that an accident
resulting in serious injuries during a high-speed chase following an
after-hours car theft at the Courtland Street facility was “merely
possible, according to occasional experience, [and not] probable,
according to ordinary and usual experience.” Johnson, supra, 276
17
Ga. at 273 (3).14 Compare Martin v. Six Flags Over Ga. II, L.P., 301
Ga. 323, 332 (II) (A) (801 SE2d 24) (2017) (gang attack at bus stop
near amusement park was reasonably foreseeable where multiple
incidents of gang disturbances at the amusement park – including a
gang-related fight – had occurred in the past and where attack on
victim began on amusement park property).15
14 We emphasize, however, that a reasonably foreseeable consequence
does not need to be the “usual” result of the negligent act at issue, as the Court
of Appeals incorrectly suggested in the Johnson opinion. Compare Johnson,
supra, 352 Ga. App. at 862 (2) (b) (“Johnson failed to present evidence that a
high speed chase ending in a crash injuring innocent bystanders usually
happens when a car is stolen”) (emphasis supplied), with Coleman, supra, 260
Ga. at 570 (holding that fact question existed on proximate causation where
the injuries resulting from the negligent act “were unusual, but entirely
foreseeable”) (emphasis supplied), and Smith, supra, 25 Harv. L. Rev. at 116
(‘Probable,’ . . . in the . . . rule as to causation, does not mean ‘more likely than
not,’ but rather ‘not unlikely’).
15 The fundamental problem with the dissent’s position is that it
conflates the concepts of negligence and proximate cause to create jury
questions on proximate cause where none exist. Jury questions on proximate
cause do not exist simply because it may be “possible” to connect a defendant’s
negligence to an otherwise unforeseen outcome, and to do so stretches the
concept of proximate cause beyond its legal limits. For example, it would be
“possible” for a car thief to decide to drive a stolen car to a convenience store,
rob that store, and injure someone during the robbery. But, such an occurrence
obviously would not be a probable or natural consequence of car thefts in
general. In order to hold liable the initial negligent actor from whom the car
was stolen, the evidence would have to show under the specific facts of the case
that the negligent actor “had reasonable grounds for apprehending that [the]
wrongful act [of robbing the store and injuring someone] would be committed.”
18
The evidence did not show that the injuries caused by Perry
were the reasonably foreseeable “probable or natural consequence”
of the defendants’ alleged negligence in failing to secure the
Courtland Street lot and the SUV. See, e.g., Long, supra, 219 Ga.
App. at 855 (1). A “probable or natural consequence” is not the same
Ontario Sewing Machine Co., supra, 275 Ga. at 686 (2). In other words, the
evidence would have to show that the defendant could have reasonably
foreseen that the subsequent robbery and injury were more than “merely
possible, according to occasional experience, but probable, according to
ordinary and usual experience.” Johnson, supra, 276 Ga. at 273 (3).
In this sense, the plaintiffs’ and the dissent’s reliance on Hewitt v. Avis
Rent-A-Car Sys., 912 S2d 682 (Fla. Dist. Ct. App. 2005), is misplaced. Hewitt
involved the 2001 Tallahassee incident discussed in footnote 9, supra, and a
Florida appellate court held in that case that issues of fact existed regarding
Avis’s potential liability where an employee stole a rental car and injured the
plaintiff during a high-speed chase because, “[o]nce the car was stolen, it may
have been foreseeable that it would be operated in a manner hazardous to the
public.” Id. at 686. Again, while it may be reasonably foreseeable under the
specific facts of a case that a theft may result in a high-speed chase and
injuries, it is not reasonably foreseeable in every case of theft that a high-speed
chase resulting in injuries is the anticipated consequence of the theft. See
Butler, supra, 261 Ga. App. at 378 (2) (to be liable, car owner who leaves keys
in ignition must have actual knowledge and ability to reasonably anticipate
the taking and the subsequent dangerous driving, such as having knowledge
of incompetent driver taking the car on joy rides in the past). To the extent
that Hewitt implies that it is reasonably foreseeable in every case of car theft
that a high-speed chase resulting in injuries is a reasonably foreseeable
consequence of the theft, we disagree, and the dissent is incorrect for adopting
Hewitt’s reasoning. But, in any event, that Florida decision is not binding on
this Court, and we do not follow it.
19
thing as a “possible” consequence where that possible consequence
is not reasonably predictable. Compare McAuley, supra, 251 Ga. at
7 (5) (death of child from complications during childbirth a year after
mother became a paraplegic in car accident was a consequence that
was “too remote” to sustain a wrongful death cause of action against
driver who injured the mother) with Martin, supra, 301 Ga. at 332(II) (A).16
The adverse inference that the jury was authorized to make
based on the missing “operator and location files” does not change
the result.17 Even to the extent that other employees were
disciplined in connection with additional thefts at the Courtland
16 We note that, to the extent that Perry’s specific prior criminal history
could have alerted CSYG and Gebremichael to the possibility that Perry would
steal a car and try to evade police, such evidence relates to their failure to
investigate Perry’s criminal background and the plaintiffs’ allegations of
negligent hiring. However, for purposes of the plaintiffs’ direct negligence
claims, there is no evidence that Avis, CSYG, and Gebremichael were
independently aware of Perry’s criminal history before he committed the
crimes that led to the plaintiffs’ injuries in this case. The negligent hiring claim
will be addressed in connection with the second certiorari question in Case No.
S20G0696.
17We again note that the jury was instructed that it could not make this
inference against Gebremichael or CSYG.
20
Street facility – an inference the jury was permitted to make based
on the instruction the trial court gave – that inference pertains only
to Avis’s negligent failure to prevent such thefts, not to any inference
that employees were disciplined for injuring bystanders outside of
the employees’ regular working hours and at locations completely
unconnected to Avis. And the issue of Avis’s negligence is separate
from the question of proximate cause. See, e.g., Goldstein, supra, 300
Ga. at 841 (1) (“[I]n order to recover for any injuries resulting from
the breach of a duty, there must be evidence that the injuries were
proximately caused by the breach of the duty.”) (citation omitted).
Here, additional thefts by other employees would not increase the
likelihood that Avis could have reasonably foreseen that Perry’s
criminal actions would cause an accident with injuries following a
high-speed chase several hours after stealing a car.
Moreover, other employee discipline does not change the fact
that Perry’s specific disciplinary record shows only that he was
reprimanded in connection with one other reported 2012 car theft at
the Courtland Street lot. In that 2012 incident, Gebremichael
21
warned Perry that he could lose his job if he allowed another car to
be stolen by a third party while he was at work. However, this
incident did not involve any facts that would have alerted Avis to a
potential future incident involving Perry himself stealing an extra
key, exiting a locked rental lot in an SUV after hours, and injuring
others while fleeing police.
Accordingly, the defendants were entitled to JNOV due to
Perry’s intervening criminal conduct being the sole proximate cause
of the plaintiffs’ injuries in this case. See Long, supra, 219 Ga. App.
at 855 (1).
Smith Only
Smith argues that the Court of Appeals erred in concluding
that CSYG and Gebremichael were entitled to a directed verdict on
her negligent hiring and retention claims, because there was
evidence to support the conclusion that Perry was acting “under
color of employment” at the time that he collided with Smith. See,
e.g., Ammons v. Clouds, 295 Ga. 225, 230 (2) (758 SE2d 282) (2014)
(“A directed verdict is authorized only when ‘there is no conflict in
22
the evidence as to any material issue and the evidence introduced,
with all reasonable deductions therefrom, shall demand a particular
verdict.’”) (punctuation omitted). We disagree.
An employer “is bound to exercise ordinary care in the selection
of employees and not to retain them after knowledge of
incompetency.” OCGA § 34-7-20. And, where a plaintiff alleges that
she is entitled to recover damages based on an employer’s negligent
hiring and retention of an employee who injured her, that plaintiff
must show, “at the very least[, that] the [employee’s] tortious act
occurred during the tortfeasor’s working hours or the employee was
acting under color of employment.” (Citation and punctuation
omitted.) Harvey Freeman & Sons v. Stanley, 259 Ga. 233, 233-234
(1) (378 SE2d 857) (1989). These parameters exist “to shield
employers from liability for those torts [that an] employee commits
on the public in general,” id. at 234, while at the same time allowing
for a plaintiff to recover damages where “it is reasonably foreseeable
that [the tortfeasor] employee may injure others in the negligent
23
performance of the [employee’s] duties.” Munroe v. Universal Health
Servs., Inc., 277 Ga. 861, 862 (1) (596 SE2d 604) (2004).
Because Perry did not injure Smith during his working hours,
she had to show that Perry was acting “under color of employment”
when he injured her in order to sustain a potentially viable negligent
hiring claim against CSYG and Gebremichael. See Harvey, supra,259 Ga. at 233-234 (1). In this regard, an employee can act “under
color of employment” when that employee commits a tort against
someone who has a business relationship or other “special
relationship” with the employer and the tort arises out of that
relationship. See id. at 234 (1) (a “landlord’s potential liability [to a
tenant] could rest on the special landlord-tenant relationship, even
for acts [by the landlord’s employee] which occurred in other than
normal office hours and in other locations than the apartment
complex”). See also TGM Ashley Lakes, Inc. v. Jennings, 264 Ga.
App. 456, 462 (1) (b) (590 SE2d 807) (2003) (an employer is shielded
“from liability for torts that their employees commit on the public in
general, that is to say, people who have no relation to or association
24
with the employer’s business”); New Madison S. Partnership v.
Gardner, 231 Ga. App. 730, 734 (1) (499 SE2d 133) (1998) (“[T]he
theory of negligent hiring/retention applies even if the tort was
committed outside the scope of employment where there is a special
relationship such as landlord-tenant between the tortfeasor and the
victim and the tortious conduct arises out of the relationship.”).
However, a special relationship between the injured party and
the employer is not always required for the employee tortfeasor to
act “under color of employment” in committing a tort. While the
phrase “under color of employment” has not been clearly defined in
our case law on negligent hiring and retention, the phrase “under
color of” has been defined in other contexts that may be instructive.
For example, a deputy sheriff acts “under color of office” when his
acts “are of such a nature that his official position does not authorize
the doing of such acts, though they are done in a form that purports
they are done by reason of official duty and by virtue of his office.”
(Citation and punctuation omitted.) Culpepper v. United States Fid.
& Guar. Co., 199 Ga. 56, 58 (33 SE2d 168) (1945). Similarly, a
25
government employee acts “under color of state law or custom” (for
purposes of a viable constitutional deprivation claim under 42 USCA
§ 1983) where that employee acts while in the course of his or her
employment or does something “in pursuit of” a customary state
practice that lacks express direction of state law. City of Cave Spring
v. Mason, 252 Ga. 3, 4 (310 SE2d 892) (1984). An employee may
similarly act “under color of” his employment where the employee
commits acts that are not authorized by his employment, but does
those acts in a form that purports they are done by reason of his
employment duties and by virtue of his employment.
In this regard, the Court of Appeals has recognized that
employees may act “under color of employment” in situations where
they commit unauthorized acts in a manner that purports they are
done by reason and by virtue of their employment positions. For
example, an off-duty police officer who uses his or her position in
order to commit (or as a means of committing) a tort against another
could be said to be acting “under color of employment” even though
the injured party does not necessarily have any special relationship
26
with the officer’s employer. See Graham v. City of Duluth, 328 Ga.
App. 496, 506 (2) (c) (759 SE2d 645) (2014) (where off-duty police
officer identified himself as a police officer, put on his police vest and
radio, showed his badge, attacked plaintiff with his department-
issued pepper spray, and engaged in shoot-out with his department-
issued service weapon, jury was authorized to find that officer could
have been acting under color of employment); Govea v. City of
Norcross, 271 Ga. App. 36, 39 (608 SE2d 677) (2004) (where off-duty
police officer wore his police uniform and handed his service weapon
to child who accidentally shot himself with it, jury was authorized
to find that officer could have been acting under color of
employment). In such cases, the employee tortfeasor committed acts
that were not authorized by his employment, but did those acts in a
form that purported they were done by reason of his employment
duties and by virtue of his employment as a police officer. See
Graham, supra, 328 Ga. App. at 506 (2) (c); Govea, supra, 271 Ga.
App. at 39. In this sense, the actions that led to the injuries were not
necessarily unrelated to the officer’s negligent hiring and
27
employment, because the officer used his position to interact with
the victim and to connect his at-work responsibilities to the actions
that led to the victim’s injuries. See Graham, supra, 328 Ga. App. at
506 (2) (c). 18
In this case, it is undisputed that Smith had no special or
business relationship with CSYG or Avis when Perry injured her
outside of business hours, and the evidence does not support the
conclusion that Perry was acting “under color of employment” at the
time that he injured Smith. As an initial matter, while Perry had
access to Avis’s vehicles during his regular working hours, he was
not able to access the vehicles after hours as a function of his regular
job duties. In this sense, Perry was not accessing the vehicles after
hours by virtue of his employment as a car washer; he was simply
stealing a rental car after hours. Indeed, Perry’s role at Avis was
18 While it is clear that an employee is not acting “under color of
employment” when the employee’s actions are “wholly unrelated” to his
employment, Graham, supra, 328 Ga. App. at 506 (2) (c), this does not mean
that an employee is acting “under color of employment” simply because one can
find any conceivable connection between the employee’s actions and that
person’s employment. Again, the employee must commit acts that are not
authorized by his employment, but do those acts in a form that purports they
are done by reason of his employment duties and by virtue of his employment.
28
quite different from that of someone like a police officer who used a
service weapon or other police equipment outside of his or her
regular working hours. Nor did Perry interact with Smith or
represent himself as an Avis employee to her at the time that he
stole the SUV or when he injured her as he fled from the police. The
fact that Perry wore an Avis shirt when he stole the SUV does not
suggest that he was acting “under color of employment” at the time
of the collision, because the evidence presented at trial showed that
Perry was wearing the shirt to cover up his crime if the police
stopped him rather than as a means of representing to Smith that
he was acting as an Avis employee when he collided with her. In
other words, Perry’s theft of an Avis rental vehicle and his
subsequent accident involving Smith were not connected to his
employment duties and were not accomplished by virtue of his
employment at Avis. Compare Graham, supra, 328 Ga. App. at 506
(2) (c).
Accordingly, the Court of Appeals was correct to conclude that
Gebremichael and CSYG were entitled to a directed verdict on
29
Smith’s claims that they negligently hired and retained Perry.
However, in reaching this conclusion, the Court of Appeals reasoned,
incorrectly, that Perry was not acting “under color of employment”
because the actions that he took were “against the defendants’
interests or even crimes of which the defendants were victims.”
Smith, supra, 353 Ga. App. at 29 (5). Acting against an employer’s
interest does not drive the analysis regarding whether an employee
is acting “under color of employment” for purposes of a negligent
hiring and retention claim. Indeed, in nearly every case of negligent
hiring and retention, it is likely the case that the tortfeasor
employee has not acted in the employer’s interest by committing a
tort that leads to the employer being sued. Because part of the Court
of Appeals’ analysis relating to an employee acting “under color of
employment” by acting against a defendant’s interest is incorrect,
we reject it. However, “we ultimately affirm the judgment of the
Court of Appeals” in concluding that Perry was not acting “under
color of employment” at the time that he injured Smith. See, e.g.,
30
White v. State, 305 Ga. 111, 114 (823 SE2d 794) (2019) (affirming
judgment of Court of Appeals, but rejecting the court’s reasoning). 19
Judgments affirmed. All the Justices concur, except Warren, J.,
who concurs in judgment only, and Ellington, J., who dissents in
part. Peterson and McMillian, JJ., disqualified.
19 We do not address the remaining issues raised by Smith in her
appellate brief, as those issues are beyond the scope of the certiorari question
posed in this case.
31
ELLINGTON, Justice, dissenting in part.
“[I]t is axiomatic that questions regarding proximate cause are
undeniably a jury question and may only be determined by the
courts in plain and undisputed cases.” Ontario Sewing Machine Co.
v. Smith, 275 Ga. 683, 687 (2) (572 SE2d 533) (2002) (footnote
omitted). The decision whether proximate cause exists in a given
case “may be made by the trial judge or appellate court only if
reasonable persons could not differ as to both the relevant facts and
the evaluative application of legal standards (such as the legal
concept of ‘foreseeability’) to the facts.” Atlanta Obstetrics &
Gynecology Group v. Coleman, 260 Ga. 569, 570 (398 SE2d 16)
(1990) (citations omitted)).20 In the two cases now before us, after a
ten-day trial in one case and a thirteen-day trial in the other, two
20 See also Sherwood v. Williams, 347 Ga. App. 400, 404 (1) (c) (820 SE2d
141) (2018) (“It is clear that[,] except in plain, palpable and undisputed cases
where reasonable minds cannot differ as to the conclusions to be reached,
questions of . . . proximate cause, including the related issues of foreseeability,
. . . are for the jury.”).
32
separate juries, thoroughly instructed on Georgia law regarding
negligence, proximate cause, foreseeability, and intervening third-
party criminal conduct, 21 unanimously found that the plaintiffs were
entitled to recover on their direct negligence claims against Avis.22
In my view, the evidence did not demand the conclusion that Perry’s
intervening criminal conduct was the sole proximate cause of the
plaintiffs’ injuries as a matter of law, because reasonable minds can
differ as to the conclusions to be reached on the issue of proximate
cause from the evidence presented at the trials. While I fully concur
in the majority’s analysis and conclusion in the Smith case that
Perry was not acting “under color of employment” when he stole
Avis’s vehicle and later injured Smith, I believe that the trial court
in both cases correctly denied Avis’s motions for judgment
notwithstanding the verdicts in connection with the plaintiffs’ direct
21 On appeal, Avis does not enumerate any error regarding the jury
instructions.
22 The special verdict form used in each of these cases presented the jury
with the question: “Was Defendant CSYG, Inc. an independent contractor or
an employee of Avis Rent A Car System LLC and Avis Budget Group, Inc.?”
Both juries determined that CSYG was an employee. In this dissenting
opinion, “Avis” denotes Avis Rent A Car System, LLC, Avis Budget Group,
Duca, CSYG, and Gebremichael.
33
negligence claims against Avis and that the Court of Appeals erred
in reversing those rulings. Accordingly, I respectfully dissent from
the majority opinion on the issue of proximate cause.
In Johnson, the first of the instant cases to be decided, the
Court of Appeals determined that Johnson failed to “muster[ ]
evidence sufficient to distinguish [that court’s] venerable line of
authority” dealing with car owners’ liability for injuries caused by
car thieves, which all “held that the car thief’s acts were the
proximate cause of the plaintiff’s injuries.” Johnson, 352 Ga. App. at
863 (2) (b) (citation and punctuation omitted). The Court of Appeals
specifically cited four cases: Long v. Hall County Bd. of Commrs.,
219 Ga. App. 853, 855 (1) (467 SE2d 186) (1996)23; J. C. Lewis Motor
Co. v. Giles, 194 Ga. App. 472, 472 (391 SE2d 19) (1990); Price v. Big
Creek of Ga., 191 Ga. App. 534 (382 SE2d 356) (1989); and Dunham
v. Wade, 172 Ga. App. 391, 393 (2) (323 SE2d 223) (1984). See
Johnson, 352 Ga. App. at 863 (2) (b). In the second of the instant
23Long was abrogated on other grounds in Georgia Forestry Comm. v.
Canady, 280 Ga. 825 (632 SE2d 105) (2006).
34
cases to be decided, Smith, the Court incorporated its proximate-
cause analysis from Johnson. See Smith, 353 Ga. App. at 25 (2).
In Dunham, the Court of Appeals affirmed the dismissal of the
plaintiff’s complaint against the stolen car’s owner, reasoning as
follows:
Mere ownership of an automobile involved in a collision
may not be made the basis for holding an owner liable for
the negligent operation of the automobile without
showing that the defendant owner was guilty of some
other negligent act which proximately contributed to the
plaintiff’s injury. . . . The fact that the keys were left in
the unguarded automobile would not authorize a recovery
against the owner for the injuries which were the result
of its subsequent negligent operation by a thief. The
persons immediately responsible will be held to full
liability; but persons only so remotely connected with the
injury can not be held [liable].
Dunham, 172 Ga. App. at 393 (2) (citations and punctuation
omitted). In that case, a driver parked on the street in front of her
babysitter’s home, left the keys in the ignition, and then was
detained inside the babysitter’s home for several minutes while her
child was readied for departure. Id. at 391-392. In those few
minutes, a stranger took the car on a joyride, resulting in the
35
plaintiff’s injuries. Id. Similarly, in Price, a stranger stole a pickup
truck parked on a street “virtually immediately after [the driver]
had exited it.” Price, 191 Ga. App. at 534. The Court of Appeals
quoted the above passage from Dunham in affirming the dismissal
of the plaintiff’s claim. Price, 191 Ga. App. at 534. In Long, a driver
parked his truck “near a county work farm” and left it unattended
and with the keys in it. Long, 219 Ga. App. at 854-855 (1). A prisoner
escaped from a work detail in the area, stole the truck, and wrecked
with the plaintiffs’ vehicle. Id. at 853-854. The Court of Appeals
affirmed the grant of summary judgment in favor of the defendant
based on the reasoning in Dunham quoted above. Long, 219 Ga. App.
at 855 (1). And, in Giles, where a car dealership was allegedly
negligent in leaving keys to a car “in a place accessible to [a] 15-year-
old” youth, who stole the car and wrecked with the plaintiff’s vehicle,
the Court of Appeals relied on the Dunham reasoning to hold that
alleging “only that [the owner] was negligent in permitting [its] car
to be stolen” fails to state a claim upon which relief can be granted.
Giles, 194 Ga. App. at 472.
36
Although the cases referenced in Johnson, like the cases now
at issue, each involved a car thief who wrecked the stolen car and
injured someone, there are significant dissimilarities between those
cases and the instant cases. In the instant cases, unlike the
opportunistic thieves in the cases referenced in Johnson, Perry, as
an employee, had time to plan his crime. The jurors heard evidence
that Avis’s business practices, including the two-key system for the
majority of its fleet, allowed employees like Perry to surreptitiously
possess a key to a fleet car after business hours; to obtain a key to
the facility’s security gate; and to access the facility after hours. And
Perry had the opportunity to learn that, because of Avis’s business
practices, the theft of a car key from a two-key set would not be
detected; the security gate lock would not be replaced after two
managers’ gate keys were reported missing; and no security cameras
would be present to record his illicit activities. The juries heard
evidence that Avis knew that the theft of fleet cars, including by
Avis’s employees, was a recurrent problem and that it needed to
change its business practices to prevent such thefts – but failed to
37
make the necessary corrections. Although only a relatively small
number of stolen Avis cars may have been involved in “high-speed
police chases,” as the majority notes, a reasonable jury could find
that Avis could reasonably anticipate that a person willing to steal
a car would drive the stolen car in a manner representing a risk of
serious harm to others in the thief’s path, whether from a high-speed
police chase or otherwise. Reasonable jurors could find from the
evidence presented that Avis reasonably should have foreseen that,
as a result of its lax practices, an employee would steal a vehicle and
then drive it in a manner that would cause injuries to others.24
Even if all of the Court of Appeals’ prior keys-left-in-an-
unguarded-vehicle cases were correctly decided, which I doubt,25 I
24 As the majority notes in fn. 9, slip op. at *7-8, supra, in addition to
evidence regarding the high-speed police chase at issue in Hewitt, the jury
received evidence that Avis knew that an employee stole a fleet vehicle and
was chased by the police at 100 m.p.h. in April 2010; a thief used a stolen fleet
vehicle in a commercial robbery and in a hit-and-run in April 2011; and that a
stolen vehicle was used in a shooting in July 2013.
25 The Court of Appeals first announced without qualification that “[t]he
fact that the keys were left in the unguarded automobile would not authorize
a recovery against the owner for the injuries which were the result of its
subsequent negligent operation by a thief” in Dunham, 172 Ga. App. at 393 (2),
citing Robinson v. Pollard, 131 Ga. App. 105 (205 SE2d 86) (1974), Chester v.
38
believe that the instant cases at the very least can be distinguished
from that “venerable line of authority.”26 At any rate, those Court of
Evans, 115 Ga. App. 46 (153 SE2d 583) (1967), and Roach v. Dozier, 97 Ga.
App. 568 (103 SE2d 691) (1958). This statement is overbroad. None of those
cases, or any other pre-Dunham cases I have found, support the premise that
a car thief is as a matter of law the sole proximate cause of any injuries to
others resulting from the thief’s operation of the stolen vehicle. See Robinson,
131 Ga. App. at 105; Chester, 115 Ga. App. at 46; Roach, 97 Ga. App. at 568.
Rather, the fact that keys were left in an unguarded vehicle alone does not
authorize a recovery on a direct negligence claim against the owner for injuries
that result from the subsequent negligent operation of the vehicle by a thief,
joy-rider, or other unauthorized user. See Redd v. Brisbon, 113 Ga. App. 23,
26-27 (147 SE2d 15) (1966) (explaining that the effect of the ruling in Frankel
v. Cone, 214 Ga. 733 (107 SE2d 819) (1959), which held that former Code Ann.
§ 68-301 (1955) was unconstitutional because it authorized a recovery without
fault against an automobile’s owner for damages resulting from the negligent
operation of the vehicle by another “in the prosecution of the business of” the
vehicle’s owner, “was that mere ownership of an automobile involved in a
collision may not be made the basis for holding an owner liable for the negligent
operation of the automobile without showing that the defendant owner was
guilty of some other negligent act which proximately contributed to the
plaintiff’s injury” (emphasis supplied)). Cf. Fielder v. Davison, 139 Ga. 509 (2)
(77 SE 618) (2) (1913) (discussing the applicability of “the rules of law touching
master and servant and the liability of the former for the act of the latter” to a
claim against the owner of an automobile for damages on account of an injury
caused by the vehicle while driven by his employee in the scope of his
employment).
26 In some keys-left-in-an-unguarded-vehicle cases, even as the Court of
Appeals affirmed judgment on the pleadings or summary judgment in favor of
vehicle owners, the court recognized that an owner could be liable if prior
similar incidents put the vehicle’s owner on notice of a risk that the vehicle
would be taken. See Butler v. Warren, 261 Ga. App. 375, 378 (2) (582 SE2d 530)
(2003) (“[I]f an owner knows that, on previous occasions when the key
remained in the car, an incompetent driver took it on joy rides, a jury could
find the owner negligent in subsequently leaving the key in the vehicle.”
(punctuation and footnote omitted)); Roach, 97 Ga. App. at 571 (“We do not say
39
Appeals cases are not binding on this Court, and it is time to
reaffirm the principle that, in Georgia tort law, the adjudication as
a matter of law of questions of negligence and proximate cause is “an
unusual circumstance.” Robinson v. Kroger, 268 Ga. 735, 739 (1)
(493 SE2d 403) (1997). Our courts must do more than pay lip service
to the principle that proximate cause is “generally” or “ordinarily”
for the jury 27 while in practice making it commonplace to take the
question of proximate cause away from a jury. 28 See id.; see also
that if an owner of a vehicle has actual knowledge that on previous occasions
where he had left the key in a vehicle and the vehicle unattended, an
incompetent driver had taken the vehicle on joy rides, a jury would not be
authorized to find the owner negligent in subsequently leaving the keys in the
vehicle and the vehicle unattended and accessible to the incompetent driver.”).
27 See Preston v. Natl. Life & Acc. Ins. Co., 196 Ga. 217, 237 (26 SE2d
439) (1943) (Questions “as to negligence, proximate cause, and similar matters,
should ordinarily be submitted to the jury; yet, . . . where the evidence as a
whole excludes every reasonable inference but one, the court may so rule as a
matter of law.”); Bennett v. Dept. of Transp., 318 Ga. App. 369, 370 (734 SE2d
77) (2012) (“While the issue of proximate cause is generally a question of fact
for the jury, it may be decided as a matter of law where the evidence is clear
and leads to only one reasonable conclusion — that defendant’s acts were not
the proximate cause of the plaintiffs’ injury.” (citations and punctuation
omitted)).
28 In addition to the cases cited in Johnson, see Bashlor v. Walker, 303
Ga. App. 478, 482-483 (1) (b) (693 SE2d 858) (2010); Butler, 261 Ga. App. at
378 (2); Williams v. Britton, 226 Ga. App. 263, 263 (485 SE2d 835) (1997); and
Robinson, 131 Ga. App. at 107-108 (1).
40
Atlanta Obstetrics, 260 Ga. at 570. In two cases cited by the majority,
Martin v. Six Flags Over Georgia II, 301 Ga. 323, 332 (II) (A) (801
SE2d 24) (2017), and Hewitt v. Avis Rent-A-Car System, 912 S2d
682, 686 (Fla. Dist. Ct. App. 2005), many case-specific circumstances
informed the inquiry into whether the plaintiff’s injuries were not
merely possible but were reasonably foreseeable. Among many other
cases,29 Martin and Hewitt illustrate why assessing foreseeability is
generally reserved for a jury, and courts should not adjudicate
proximate cause as a matter of law based on the single fact that a
third party’s criminal act brought to fruition the risk of harm seeded
by the defendant’s negligence. 30
29 See e.g., Sturbridge Partners, Ltd. v. Walker, 267 Ga. 785, 786-787 (482
SE2d 339) (1997).
30 The majority criticizes Hewitt to the extent it “implies that it is
reasonably foreseeable in every case of car theft that a high-speed chase
resulting in injuries is a reasonably foreseeable consequence of the theft[.]”
See, supra, slip op. at *19, fn. 15. While I agree with the majority that Hewitt
is not binding on this Court, I do not read Hewitt as the majority suggests. In
Hewitt, the court reversed summary judgment in favor of Avis on the ground
that reasonable persons could differ as to whether the facts established
proximate cause based on “the combination of special circumstances that
exist[ed] in the case at bar,” including previous vehicle thefts from the facility,
“the absence of any safeguards by management against theft[,]” and “the
knowledge that Avis had, or should have had, of the harm that often occurs
41
I do not believe that the instant cases are among the unusual
cases in tort law where proximate cause can be adjudicated as a
matter of law. I respectfully dissent.
from the careless operation by thieves of stolen vehicles[.]” Hewitt, 912 S2d at
686. In my view, the reasoning in Hewitt simply reflects that the role of a jury,
composed of representatives of the community and sitting as the finder of fact,
requires the use of jurors’ common sense and reasoning. A reasonable jury
could conclude, as a matter of common sense in the jurors’ judgment, that a
criminal on the run in a stolen car can be expected to drive in an unsafe
manner. A court asked to adjudicate proximate cause as a matter of law should
not impose its own metric of a certain kind and number of prior incidents the
court considers necessary to create a question of fact for the jury.
42