Cullara v. Building & Earth Sciences, Inc.

FIFTH DIVISION
DILLARD, P. J.,
PETERSON and REESE, JJ.
NOTICE: Motions for reconsideration must be
physically received in our clerk’s office within ten
days of the date of decision to be deemed timely filed.
http://www.gaappeals.us/rules
December 8, 2016
In the Court of Appeals of Georgia
A16A1735. CULLARA v. BUILDING & EARTH SCIENCES, INC.
PETERSON, Judge.
An employee of Building & Earth Sciences, Inc. (“BES”) drove a company
vehicle while drunk and collided with Frank Cullara’s vehicle. Cullara sued the now-
former employee and BES. The trial court granted summary judgment to BES on
Cullara’s negligent entrustment claim, concluding that BES had no knowledge that
the former employee had a pattern of reckless driving because the evidence showed
the company’s knowledge of only one prior DUI conviction. Cullara appeals and
argues that in concluding that BES did not have knowledge of the former employee’s
additional prior DUI convictions, the trial court erred by reviewing the record
evidence in the light most favorable to BES and resolved conflicting evidence in
BES’s favor. Cullara also argues that the court failed to consider whether BES
voluntarily assumed a duty to investigate the former employee’s driving background.
We reverse the trial court’s grant of summary judgment because there is evidence
creating genuine issues of material fact as to whether BES had knowledge of the
former employee’s multiple DUI convictions that could sustain a negligent
entrustment claim.
“Summary judgment is appropriate when no genuine issues of material fact
remain and the movant is entitled to judgment as a matter of law. We review a trial
court’s grant of summary judgment de novo, construing the record and all reasonable
inferences in favor of the nonmoving party.” Mastec N. Am., Inc. v. Sandford, 330 Ga.
App. 250, 250 (765 SE2d 420) (2014) (citation omitted).
So viewed, the record shows that BES hired David Scott in January 2012. On
his employment application, Scott listed a 1998 conviction for possession of cocaine,
but he did not list any of his multiple DUI convictions. Scott admitted in his
deposition that he had more than four DUI convictions.
Scott deposed that he was interviewed by two BES employees prior to being
hired, and that he told the interviewers “everything” about his history with drugs and
alcohol. When specifically asked at his deposition whether he told one of the BES
interviewers about his prior DUI convictions, Scott answered, “Yes, sir. He knew.”
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When asked how many he reported, Scott responded, “I did not specify.” Scott said
he believed he told the interviewers about his 2002 DUI conviction and that he had
many offenses and a “checkered past,” but he was unsure if he specifically told them
about his other DUI convictions. When pressed on the issue, Scott said he was
positive BES knew about his background because, although he did not specifically
remember discussing his numerous DUI convictions, he told him he had prior
violations and discussed with them the nature of whatever “motor vehicle check” they
would conduct. Scott further deposed that he told the interviewers that his license had
been reinstated in 2010 after it was suspended following his 2002 DUI conviction.
He further testified that, although he could not recollect the entire interview, he was
honest with the interviewers and, therefore, must have told them that his license had
been suspended on numerous occasions. Scott also reported to the interviewers that,
at the time of his interview, he was living in a transitional center and was in a
substance abuse recovery program.
Prior to hiring Scott, BES conducted a background investigation with Scott’s
consent. The investigation reviewed Scott’s Social Security information, his federal
criminal history, his credit and employment history, and his motor vehicle record.
BES’s current human resources director, who was not the individual who conducted
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the background check on Scott, testified that Scott’s file contained a motor vehicle
report showing a clean driving history. The motor vehicle report, however, searched
only for violations in the preceding three years. The human resource director testified
that Scott’s personnel file did not contain a criminal history report, but that the
company usually received this report as part of its background investigation, and it
was unknown why the criminal history report was missing from the file. BES
subsequently supplemented the record with the complete background report, and the
federal criminal history section did not reveal any convictions.1
About eight months after he was hired, Scott asked his supervisor for
permission to use a company truck to move a mattress set into a new home. Although
a company policy prohibited the use of company vehicles for personal use, a BES
supervisor gave Scott permission to use the vehicle to move personal items. Scott
picked up the truck on a Saturday morning after drinking two beers. Scott consumed
several more alcoholic beverages at lunch before colliding with Cullara. Scott was
arrested for and later pleaded guilty to driving under the influence, as well as failure
to maintain lane. BES terminated Scott.
1
There is no explanation why BES did not order a state criminal background
report.
4
Cullara filed suit against Scott and BES. Cullara alleged that BES negligently
entrusted the company vehicle to Scott because it allowed Scott to use the vehicle
despite having knowledge of Scott’s extensive history of driving under the influence.
In its motion for summary judgment, BES argued that it was not on notice that Scott
was a dangerous driver because he listed only one criminal violation on his
application — the 1998 conviction for possession of cocaine — and, even assuming
Scott reported multiple DUI convictions during his interview, BES was entitled to
rely on the criminal history check that did not reveal any prior convictions. The trial
court granted summary judgment to BES, finding that Scott testified that he told the
company only about his 1998 cocaine possession conviction and his 2002 DUI
conviction and further background checks revealed no federal criminal record. The
trial court concluded that Scott’s 2002 DUI conviction was insufficient to establish
a pattern of reckless driving. This appeal ensued.
Cullara argues that the trial court erred in granting summary judgment to BES
on his negligent entrustment claim because the court disregarded favorable portions
of Scott’s conflicting testimony about BES’s knowledge of his DUI convictions and
improperly inferred that Scott reported only one DUI conviction. We agree.
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“In a negligent entrustment claim, liability arises from the negligent act of the
owner in lending his automobile to another to drive, with actual knowledge that the
driver is incompetent or habitually reckless.” Bashlor v. Walker, 303 Ga. App. 478,
480 (1) (a) (693 SE2d 858) (2010) (punctuation and footnote omitted); see also Gunn
v. Booker, 259 Ga. 343, 347 (3) (381 SE2d 286) (1989). “[A] plaintiff in a negligent
entrustment action is not limited to showing actual knowledge of the entruster
inasmuch as that plaintiff may show actual knowledge of a pattern of reckless driving
or facts from which such knowledge could reasonably be inferred.” CGL Facility
Mgmt., LLC v. Wiley, 328 Ga. App. 727, 732 (2) (b) (760 SE2d 251) (2014)
(punctuation and citation omitted).
In this case, Cullara presented evidence sufficient to defeat BES’s motion for
summary judgment. Scott deposed that a BES supervisor gave him permission to use
a company vehicle for his personal use, thus establishing for summary judgment
purposes that BES entrusted him with a company vehicle. There are questions of
material fact as to whether BES was negligent in doing so.
We acknowledge, as the trial court did, that Scott “repeatedly testified that he
could not recall whether he told the BES employees about any other criminal history
beyond his 1998 cocaine possession conviction and his 2002 DUI (and possibly the
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contemporaneous marijuana possession).” During several parts of his deposition,
Scott stated that he did not specifically remember discussing his numerous DUI
convictions with BES employees and was unsure whether he told the company about
other DUI convictions aside from his 2002 conviction. Although the trial court found
that Scott disclosed his checkered criminal background and that his license had been
suspended several times, it ruled that these disclosures were “neutral” and “not
affirmative evidence that Mr. Scott advised BES during the interview that he had
multiple DUIs.”
In reaching this conclusion, the trial court failed to construe the “neutral”
evidence in Cullara’s favor and it ignored other, less ambiguous testimony on the
issue. The court concluded that it was not clear how many DUI convictions Scott had,
at the same time acknowledging Scott’s testimony that he had more than four DUI
convictions at the time of his interview. Scott further testified that, in addition to BES
having been made aware of his 1998 cocaine possession conviction by virtue of his
disclosure on his employment application, BES “knew everything” and “was totally
informed” about his prior history with drugs and alcohol, which could reasonably be
construed to include his prior DUI convictions. Scott also was asked during his
deposition, “So did you tell [one of the interviewers] about your prior convictions for
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driving under the influence?” Scott answered, “Yes, sir. He knew.” In response to
another question about whether he told BES about his numerous DUIs, Scott testified
that he told the BES employees that he had prior violations.
Although Scott may have at times been unclear about what he reported to BES,
the testimony cited above constitutes affirmative evidence that Scott told BES about
his multiple DUI violations and was thus sufficient to preclude the grant of summary
judgment to BES. To defeat a summary judgment motion, the nonmoving party need
not present conclusive proof to rebut the movant’s evidence, but must only produce
or point to specific evidence, even slight, giving rise to a triable issue of material fact.
See Lee v. SunTrust Bank, 314 Ga. App. 63, 63 (722 SE2d 884) (2012); see also
Dalton v. City of Marietta, 280 Ga. App. 202, 203 (633 SE2d 552) (2006) (“Even
slight evidence will be sufficient to satisfy the plaintiff’s burden of production of
some evidence on a motion for summary judgment[.]”) (citation and punctuation
omitted). Scott’s testimony created a material issue of fact as to whether BES had
knowledge of Scott’s history of DUI convictions.
BES argues that it was entitled to summary judgment under the reasoning of
Patterson v. Southeastern Newspapers, Inc., 243 Ga. App. 241, 244-46 (2) (553 SE2d
119) (2000), in which we held that an employer was entitled to summary judgment
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on a negligent hiring and retention claim notwithstanding the employee-driver’s
testimony that he had numerous driving violations prior to and after his hiring. We
concluded in Patterson that the employer did not negligently hire the driver because
there was no reason the employer knew or should have known of the driver’s bad
driving record where the copy obtained by the employer did not reveal infractions for
the preceding three years, and the plaintiff did not present any evidence that
conducting a more thorough search at the time of the hiring would have revealed the
driving infractions. Id. at 245-46 (2). We also concluded that the plaintiff’s negligent
retention claim failed because the driver did not inform the employer about a DUI
citation received after his hiring, there was no evidence that the employer did not
follow its procedures for regularly checking employee’s driving records, and the
plaintiff did not suggest a different procedure would have revealed that the driver’s
license had been suspended as a result of receiving the DUI citation 11 days before
the accident. Id.
Patterson does not apply here. Although both Scott and the driver in Patterson
testified about having numerous driving violations, there is no indication that the
driver in Patterson actually told the employer about any of his driving violations.
Indeed, our opinion in that case reveals that the driver withheld information from his
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employer. See Patterson, 243 Ga. App. at 245 (2) (“[The driver] did not inform the
newspaper of [the DUI] incident despite agreeing at the time of his employment to tell
of any ‘major citations ... (i.e., suspended license, canceled insurance).’”). In this
case, however, Scott testified that he told BES about his multiple DUI convictions.
To the extent BES suggests, as it did below, that it was entitled to ignore Scott’s
statements or his written application and could instead rely solely on a criminal
background check, BES points to no authority for this proposition. As it noted in its
brief in support of its motion for summary judgment, the issue is whether BES knew
or should have known that Scott was a high risk driver. Nothing in Patterson can be
read as providing that the evidence that may establish this element is limited to an
employee’s driving record or criminal history report. Accordingly, we reverse the
grant of summary judgment to BES.2
Judgment reversed. Dillard, P. J., and Reese, J., concur.
2
In the light of this conclusion, we need not consider Cullara’s remaining
arguments.
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