A passenger in an airport shuttle was injured when the shuttle driver suffered a medical emergency, lost control of the bus, and crashed. She sued the bus company for negligence based on respondeat superior, as well as direct liability for negligent hiring, retention, training, and supervision. The trial court denied the bus company’s motion for summary judgment, and the Court of Appeals granted interlocutory review.
The passenger was an employee of one of the airlines at the Atlanta airport. When working, she’d park at the off-site employee parking lot and take a shuttle that the bus company owned and operated. One day in November 2016, she parked in that lot and boarded the shuttle. Right after the shuttle pulled out, the driver lost control, rolled over the curb, and struck a street sign before coming to a stop. The plaintiff struck her head on a pole in the bus. The driver got out, walking unsteadily, and moved toward the front of the bus to look at the damage. He started pulling his hair and acting confused. As he returned to the bus, he collapsed and lost consciousness. The plaintiff noticed that he was bleeding from his mouth.
The police responded to the scene and were able to talk to the driver when he regained consciousness, and they saw that he’d vomited blood. They determined that the accident was the result of a medical emergency. The driver was taken to the hospital where he died several days later due to a massive gastrointestinal hemorrhage.
The plaintiff sued the bus company for damages related to her injuries. In its Answer, the bus company admitted that the driver was acting in the scope of his employment at the time of the accident. The bus company moved to dismiss the case, asserting that it hadn’t breached any duty to the passenger because the accident was caused by an “act of God.” It also claimed that there was no evidence to establish negligent hiring, retention, training, or supervision.
In support, the bus company submitted the testimony of its director of transportation and expert testimony from an intensive care physician. The company’s director explained that it was unable to locate the driver’s employment file, but produced his motor vehicle records, drug screens, driver’s license, and Department of Transportation certification. None of those documents showed anything that would have excluded him from driving the shuttle, and the director noted that he wouldn’t have received his DOT card if he hadn’t been medically cleared to drive. In addition, the company director said she had no knowledge that the driver was absent prior to the accident due to illness. In addition, the director had watched the video from the shuttle bus on the day of the accident and noted that the crash looked to be the result of a medical emergency.
The bus company’s expert physician testified that the driver suffered a massive gastrointestinal hemorrhage that caused him to become confused and lose consciousness before going into hypovolemic shock due to blood loss. After reviewing the accident records, she opined that the medical emergency wasn’t foreseeable, and the driver could’ve experienced the beginning stages of shock prior to the accident without realizing it.
In response, the plaintiff argued that the medical condition was foreseeable. She called a gastroenterologist as an expert who reviewed the driver’s medical history and opined that he would’ve known about his risk for severe bleeding. The expert noted that the driver was hospitalized in June 2016, and a CAT scan showed esophageal varices (enlarged veins that can rupture and bleed heavily). Although the varices weren’t bleeding at that time, the fact that they were visible on the scan increased the risk for bleeding in the future. As a result, the expert said that his medical emergency was foreseeable to him. However, the expert didn’t express an opinion as to whether it would have been foreseeable to the company.
The plaintiff also submitted the driver’s medical records that showed he’d experienced bleeding varices in 2010 and suffered from cirrhosis; also that varices were present when he was hospitalized in 2016. When he was discharged from the hospital in 2016, he was told not to drive until cleared by his primary care physician. One of the conditions noted in his plan of care was hypovolemia (hypovolemic shock is an emergency condition in which severe blood … loss makes the heart unable to pump enough blood to the body. Gastrointestinal bleeding can cause such blood loss).
Also, the bus driver’s time sheets for June 2016 showed a three-week period right after this hospitalization when he didn’t work. The trial court denied the company’s motion for summary judgment, finding that it had the burden of establishing the “act of God” defense, and that it couldn’t rely on an absence of evidence to meet its burden. The trial court noted the lack of the bus driver‘s complete employment file and the fact that there was no evidence he received clearance to drive after his June 2016 hospitalization. Because it allowed the underlying negligence claim to proceed, the trial court also denied the motion as to the allegations of negligent hiring, retention, training, and supervision. The bus company appealed.
Was the Bus Driver’s Medical Emergency Foreseeable?
The bus company argued on appeal that the trial court erred by finding a factual question on whether the driver’s medical emergency was foreseeable and whether his knowledge, if any, should have been imputed to the bus company. The company noted that it was pure speculation whether the bus driver even knew of the medical risk.
Judge Todd Markle wrote that under Georgia law, an employer is responsible for the negligent or intentional torts of its employee, provided they are committed by the employee in furtherance and within the scope of the employer’s business. To state a cause of action for negligence, a plaintiff must establish the following essential elements:
- A legal duty;
- A breach of this duty;
- An injury; and
- A causal connection between the breach and the injury.
Here, the bus company admitted that the bus driver was its employee and that he was acting in the scope of his employment when the accident occurred. With regard to the causation element, the judge wrote that
where the driver of an automobile suffers an unforeseeable illness which causes him to suddenly lose consciousness and control of the automobile, the driver’s loss of control is not negligent, and he is not liable for any damages caused by the out-of-control automobile. The driver must show that an unforeseeable loss of consciousness produced the accident without any contributing negligence on his part.
Also, O.C.G.A. § 1-3-3(3) states that an “act of God” refers to “an accident produced by physical causes which are irresistible or inevitable, such as … illness.” This is an affirmative defense that is the defendant’s burden of proof; because it requires there be no negligence by the driver, the driver generally must show that the illness wasn’t foreseeable.
The parties didn’t dispute that the bus driver suffered from a medical emergency or that the emergency caused him to lose control of the bus. The company contended, however, that it couldn’t be liable because the risk wasn’t foreseeable. The burden to prove an affirmative defense required the bus company to come forth with evidence. As such, the company’s director of transportation testified that the company didn’t have all of the driver’s employment file, and she could only say that he’d passed the background checks, drug screening, and medical examination in order to obtain his DOT certification.
Additionally, the bus company’s medical expert said the medical emergency wasn’t foreseeable. But the plaintiff submitted the driver’s medical history, which included evidence that he previously suffered from esophageal varices, and her expert opined that he would’ve known about his risk for hypovolemia. So, the company could only point to an absence of evidence, which was insufficient to meet its burden of establishing its affirmative defense, the judge concluded. As a result, the trial court correctly found that the bus company wasn’t entitled to summary judgment on the respondeat superior claims.
The Plaintiff’s Claims of Negligent Hiring, Retention, Training, and Supervision
Next, the bus company argued that the trial court erred by permitting the negligent hiring, retention, training, and supervision claims to proceed because there was no evidence to support those allegations.
Judge Markle explained that in contrast to respondeat superior claims, claims of negligent hiring, retention, training, and supervision are based on the employer’s negligence.
Hiring and Retention
The judge wrote that an employer has a duty to exercise ordinary care not to hire or retain an employee the employer knew or should have known posed a risk of harm to others where it is reasonably foreseeable from the employee’s tendencies or propensities that the employee could cause the type of harm sustained by the plaintiff. Negligent hiring and retention are closely related, separated only by when the employer becomes aware of the information that amounts to reasonable notice of the employee’s incompetence. If the employer discovers the employee’s incompetence after hiring, the retention becomes the negligent act.
Here, the plaintiff bore the burden of establishing her claims for negligent hiring and retention. But Judge Markle and the Court of Appeals found that she didn’t meet that burden. She pointed to no specific evidence to establish demonstrating that the bus company had knowledge of the risks, or that it failed to act with ordinary care in hiring and retaining the bus driver.
There was no evidence that the driver ever experienced medical issues while at work. The plaintiff relied solely on evidence that he was absent from work for three weeks. The trial court acknowledged that it was pure speculation that the bus company knew the driver was out for medical reasons. The Court of Appeals said it wouldn’t hold that an extended absence from work, without more, was enough to put an employer on notice of a dangerous medical condition that might happen sometime in the future.
To establish a negligent training claim, a plaintiff must demonstrate that inadequate training caused a reasonably foreseeable injury. But here, the plaintiff provided no evidence that the bus company’s training policies were related to the accident in any way. As a result, that claim failed.
Finally, Judge Markle explained that to defeat summary judgment on an issue of negligent supervision, a plaintiff must produce some evidence of incidents similar to the behavior that was the cause of the injury at issue. An employer may be held liable for negligent supervision only where there’s enough evidence to establish that the employer reasonably knew or should have known of an employee’s tendencies to engage in certain behavior relevant to the injuries allegedly incurred by the plaintiff. But once again, the plaintiff proffered no evidence of similar behavior that would’ve put the bus company on notice, and as a result, this claim also failed.
As a result, the Court of Appeals concluded that the trial court properly denied summary judgment as to the respondeat superior claims against the bus company, but it erred by denying the motion as to claims arising from the bus company’s direct liability. The trial court’s order was affirmed in part and reversed in part. ABM Aviation v. Prince, 366 Ga. App. 592, 884 S.E.2d 8 (Ga. App. February 1, 2023).
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