ALLEN et al.
ZION BAPTIST CHURCH OF BRASELTON et al
Cert. applied for.
Negligent hiring and retention. Jackson Superior Court. Before Judge Motes.
Harris Penn Lowry, Jeffrey R. Harris, Stephen G. Lowry, Madeline E. McNeeley, Hicks, Massey & Gardner, Frederick V. Massey, for appellants.
Rutherford & Christie, Carrie L. Christie, Courtney M. Norton, for appellees.
BRANCH, Judge. Barnes, P. J., and Boggs, J., concur.
On the afternoon of October 24, 2010, after a homecoming festival at Zion Baptist Church of Braselton (" Zion" ), Joshua Humphrey sexually assaulted a 14-year-old boy he had met while volunteering with the church's youth group. After the boy's parents, the Allens, sued Zion and Humphrey, Zion moved for summary judgment, which the trial court granted. On appeal from this ruling, the Allens argue that genuine issues of material fact remain as to their claims that Zion negligently hired, retained, and supervised Humphrey and that Zion's spoliation of evidence also precludes a grant of summary judgment. Although we agree with the trial court's conclusion that Zion did not engage in spoliation, we also find that questions [328 Ga.App. 209] of fact remain as to the Allens' various other negligence claims. We therefore reverse the trial court's grant of summary judgment to Zion.
" Summary judgment is proper when there is no genuine issue of material fact and the movant is entitled to judgment as a matter of law." Walker v. Gwinnett Hosp. System, 263 Ga.App. 554, 555 (588 S.E.2d 441) (2003) (citations and punctuation omitted). A trial court's grant of summary judgment is reviewed de novo on appeal, construing the evidence in the light most favorable to the nonmovant. Ethridge v. Davis, 243 Ga.App. 11, 12 (530 S.E.2d 477) (2000).
Construed in favor of the Allens, the record shows that Zion's child protection policy, stated in the application given to aspiring volunteers, was that " all volunteers working with preschool, children or youth" were required to have maintained church membership for at least three months and to complete a membership class and an application, which included two reference forms and written consent to a background check. By early September 2010, Humphrey, who was 21 years old, began attending services at Zion. On Sunday, September 5, Humphrey turned in a visitor communication card indicating that he wanted to volunteer for the youth ministry. As a result, Zion youth pastor Jason Ellis invited Humphrey to observe the
youth meeting on Wednesday, September 8. Humphrey attended that meeting as well as the Sunday services on September 12.
On Wednesday, September 15, 2010, Humphrey gave his completed volunteer application, including two references, to Ellis. The church's administrative assistant found Humphrey's application suspicious, felt that there was " something not right" about him, and communicated these concerns to Ellis. Ellis did not take any further action on Humphrey's application, however. After the September 15 youth meeting, the second attended by Humphrey, Ellis asked Humphrey to arrive early at the next meeting to assist with game night. At the game night, held on September 22, Humphrey handed out pizza, played catch football, ran laps around a makeshift trail, and took some boys to the weight room, with some of these activities taking place without any other adult present.
One of the two reference forms turned in by Humphrey bore a signature from Brandy Rowland, who later testified that she had declined to provide a reference for Humphrey, that she never filled out the reference form, and that her signature on the form was a forgery. Rowland averred that if the church had contacted her, which it did [328 Ga.App. 210] not, she would " never" have recommended Humphrey as a volunteer because she had " concerns that [Humphrey] may be a sexual predator." At her deposition, Rowland specified that Humphrey became acquainted with Rowland's boyfriend while working at a McDonald's restaurant in Braselton, that Humphrey was a frequent visitor to her house, and that he paid special attention to her second son, who was four years old in 2010. Rowland testified that on one night that year when she, her boyfriend, two of her children, and Humphrey were all sleeping together in the same room, Humphrey, who was sleeping on the floor, repeatedly " grabb[ed]" or " hugg[ed]" the " feet" of her second son, who was also sleeping on the floor, in an effort to " pull" or " slide" the boy's body " down" toward Humphrey. Rowland testified that this happened " four or five times," that Humphrey pretended to be asleep throughout, and that she repeatedly pulled her son away from Humphrey before pulling her son off the floor entirely and into bed with her. Although Rowland told her boyfriend that she did not want Humphrey " always around" her children, she never spoke to Humphrey about this nighttime incident, and did not bar him from spending time with her children in its aftermath.
As of October 2010, the 14-year-old victim had attended Wednesday night services at Zion three or four times as a guest of his friend D. H. Neither the victim nor any member of his family was a member at Zion, however. On one of his visits to Zion, the victim met Humphrey, describing him to his mother as a " cool" youth leader who liked the same video games the victim did. On Sunday, October 24, Zion held a fall festival that included food, children's games, and other activities. At around 2:00 p.m. that day, Humphrey called the victim and invited him to the festival. When the victim put his mother on the phone, Humphrey told her that he was a youth leader and asked if the victim could attend the festival. The victim's mother agreed; drove the boy and his friend J. C. to ...