Self v. Local Mech. Networking, Inc.

369 Ga.App. 153

892 S.E.2d 578

SELF v. LOCAL MECHANICAL NETWORKING, INC.

Crann v. Local Mechanical Networking, Inc.

A23A1056, A23A1057

Court of Appeals of Georgia.

September 8, 2023

Bruce M. Edenfield, Atlanta, William Phillips Tinkler Jr., Decatur, for Appellant.

James Theodore Hankins III, Atlanta, for Appellee.

Markle, Judge.

Michael Self and Michael Crann were injured after Steve Moss took his employer's van and caused a series of traffic accidents. Self and Crann then separately sued Moss's employer, Local Mechanical Networking, Inc. ("LMN"), for negligence, alleging that LMN's employee failed to properly supervise Moss. The trial court granted LMN's motions for summary judgment, finding that Moss's intervening criminal conduct was the proximate cause of Self's and Crann's injuries. In these consolidated appeals, we consider whether Moss's intervening criminal conduct relieves LMN of liability for the alleged negligence of its employee. For the reasons that follow, we conclude that it does and, therefore, we affirm.

Summary judgment is appropriate when there is no genuine issue of material fact and the movant is entitled to judgment as a matter of law. In reviewing the grant or denial of a motion for summary judgment, we apply a de novo standard of review, and we view the evidence, and all reasonable conclusions and inferences drawn from it, in the light most favorable to the nonmovant.

(Citation and punctuation omitted.) Gervin v. Retail Property Trust , 354 Ga. App. 11, 840 S.E.2d 101 (2020).

So viewed, the record shows that Moss worked for LMN as a plumber's assistant. He reported to Robbie Alexander, the general superintendent. One morning in August 2017, the two men met at LMN's office and drove together to a job site about an hour and a half away, where they were finishing a piping job. Alexander drove them to the site in one of LMN's trucks. Moss was quiet during the drive, but at some point, he told Alexander he had used drugs over the weekend. ¹ He made comments about whether life was worth living, and he talked about his young son. Alexander was aware that Moss was having some difficulty with the child's mother. Alexander noted that Moss seemed concerned, but was not agitated and did not appear to be under the influence of any drugs.

When they arrived at the job site, Moss continued making similar comments and asking Alexander about religion. Moss and Alexander prayed together. ² Moss felt overwhelmed and disappeared for a while, and Alexander assumed he had gone to the bathroom. But unbeknownst to Alexander, Moss had actually gone to the third floor of the building to commit suicide. When he returned to Alexander, Moss was visibly agitated, crying, and sweating profusely. He began asking Alexander about heaven and hell, whether his son would go with him after he died, and how to bring religion into his life. Alexander instructed Moss to sit down and have some water, but Moss remained agitated and continued sweating. Concerned, Alexander brought Moss to the truck to cool off in the air conditioning. Alexander turned the truck on and left Moss sitting in the passenger seat as he went to finish the job. At that point, Alexander thought Moss appeared to be in control of himself, even if not back to normal. But, as Alexander walked away from the truck, Moss drove off, causing multiple traffic accidents, including the ones that injured Self and Crann, before driving the truck into a restaurant. Moss later told Alexander he was trying to kill himself.

Alexander had never seen Moss act this way before, and he did not believe Moss to be suicidal when he left him in the truck. Instead, he thought Moss, who was a veteran, might be experiencing PTSD as he had on a job site once before. At the time of the accident, LMN did not permit Moss to drive the truck due to his prior DUI and reckless driving convictions. ³

Moss later pled guilty to 16 counts of serious injury by vehicle, DUI (less safe), and reckless driving. Self and Crann filed separate suits against LMN and Moss, alleging claims of negligence in connection with Alexander's decision to leave Moss in the running truck knowing that Moss was suicidal. ⁴ LMN moved for summary judgment, arguing, as is relevant to this appeal, that Moss's criminal conduct was the proximate cause of the plaintiffs’ injuries. Citing Johnson v. Avis Rent A Car System , 311 Ga. 588, 858 S.E.2d 23 (2021), the trial court granted summary judgment, and these appeals followed.

As both plaintiffs raise the same argument, we consolidate these appeals. In their sole enumeration of error, Self and Crann argue that the trial court erred by finding as a matter of law that Alexander's conduct was not the proximate cause of the injuries because Moss's actions were a foreseeable risk that Alexander should have appreciated. We are not persuaded.

To state a negligence claim, the plaintiff must establish a legal duty; a breach of the duty; causation; and damages. Paradise Entertainment Group v. Favors , 363 Ga. App. 636, 639 (1) (a), 871 S.E.2d 916 (2022). With regard to causation, the plaintiff must show that the alleged negligence was both the "cause-in-fact" and the proximate cause of the damages. Id. As we have explained, "[p]roximate 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.) Id.

In this regard, a negligent actor who breaches a duty to another is not responsible for a consequence which is merely possible, according to occasional experience, but only for a consequence which is probable, according to ordinary and usual experience. It is important to recognize that probable, in the rule as to causation, does not mean "more likely than not," but rather "not unlikely"; or, more definitely, ... such a chance of harmful result that a prudent man would foresee an appreciable risk that some harm would happen.... 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 and punctuation omitted.) Id. at 639-640 (1) (a), 871 S.E.2d 916.

Where the injuries are the result of a criminal act by a third party, however,

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. But, this rule does not insulate the defendant if the defendant had reasonable grounds for apprehending that such wrongful act would be committed. 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.

(Citation and punctuation omitted.) Paradise Entertainment Group , 363 Ga. App. at 640 (1) (a), 871 S.E.2d 916 ; see also Johnson , 311 Ga. at 592-593, 858 S.E.2d 23.

Applying this rule, we recently explained, "[a] determination that a defendant's conduct was not the proximate cause of the injury is not a determination that no causal connection existed but that, as a matter of ‘policy,’ the defendant's conduct and the plaintiff's injury are too remote for the law to countenance recovery." (Citations and punctuation omitted.) Blondell v. Courtney Station 300 LLC , 362 Ga. App. 1, 5 (1), 865 S.E.2d 589 (2021). The benchmark is foreseeability, and where the criminal conduct is not foreseeable, the rule acts to limit liability. Id.

Here, relying on Johnson , the trial court found that Alexander's negligence was not the proximate cause of Self's and Crann's injuries due to Moss's intervening criminal conduct. In Johnson , our ...