Reconsiderations denied July 31, 2014 -- Cert. applied for.
Respondeat superior, etc. Baldwin Superior Court. Before Judge Prior.
Chambless, Higdon, Richardson, Katz & Griggs, Mary M. Katz, for appellant.
Reynolds, Horne & Survant, John C. Fleming, for appellee.
BARNES, Presiding Judge. Boggs and Branch, JJ., concur.
Barnes, Presiding Judge.
Keiana Wiley died when Michael Thad Clay crossed the centerline in his employer's pickup truck and hit Wiley's car head-on. Clay's blood tested positive for methamphetamine. Bryant Wiley, acting as the administrator of his wife's estate and her surviving spouse, sued Clay for wrongful death and sued Clay's employer, CGL Facility Management, LLC, under theories of respondeat superior and negligent hiring, retention, entrustment, and maintenance. The defendants answered, and following discovery, CGL moved for summary judgment, arguing that Clay was not on the job when the collision occurred and that no evidence supported Wiley's other claims. The trial court denied the motion without explanation but granted a certificate of immediate review, and this court granted CGL's application for interlocutory appeal. For the reasons that follow, we reverse the trial court's denial of summary judgment to CGL on Wiley's claims of liability under theories of respondeat superior, negligent hiring and retention, and negligent training and maintenance, but affirm the denial of summary judgment on Wiley's negligent entrustment claim.
On appeal from a grant of summary judgment, we conduct a de novo review, and we view the evidence and the inferences drawn from it in the light most favorable to the nonmoving party. A defendant demonstrates entitlement to summary judgment by showing that the record lacks evidence sufficient to create a jury issue on at least one essential element of the plaintiff's case. The defendant does not need to affirmatively disprove the plaintiff's case, but may prevail simply by pointing to the
lack of evidence. If the defendant does so, the plaintiff cannot rest on his pleadings, but must point to specific evidence that gives rise to a triable issue of fact.
Upshaw v. Roberts Timber Co., 266 Ga.App. 135 (596 S.E.2d 679) (2004).
[328 Ga.App. 728] Viewed in the light most favorable to Wiley, the evidence showed that in 1995, Clay began working for the State at the Milledgeville Youth Detention Center (YDC), first in the warehouse, then in maintenance as an apprentice locksmith. In 2001, the State privatized the maintenance of its Department of Juvenile Justice (DJJ) facilities, and CGL obtained the contract. Clay applied for a job with CGL and underwent a criminal background check and drug test. When asked at deposition whether there were " any issues at all with either a drug test or [his] criminal background history when [he was] hired by CGL," Clay invoked his Fifth Amendment right to not incriminate himself. He ...