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Boatner v. Show Media, LLC

Court of Appeals of Georgia

March 19, 2015

BOATNER et al.
v.
SHOW MEDIA, LLC et al

Negligence. Clayton State Court. Before Judge Carbo.

Webb, Wade & Taylor, Jonathan J. Wade, for appellants.

William P. Claxton, for appellees.

OPINION

Barnes, Presiding Judge.

Kenneth and Hattie Boatner were on a motorcycle that was struck by one of a fleet

Page 41

of cars being driven around Atlanta as part of an advertising campaign. They sued the driver, Kristina Smeltzer, for negligence, and Show Media, LLC, and its related corporate entities (collectively, " Show Media" ) under the doctrines of respondeat superior and negligent entrustment.[1] Following discovery, Show Media moved for summary judgment, contending that, while the driver " negligently made a U turn in opposing traffic directly in front of the [Boatners,] striking the Boatners' Motorcycle and knocking them to the road surface," the evidence established without issue that it was not liable under either theory of recovery because the driver was an independent contractor. The trial court granted summary judgment to Show Media under both theories.

The Boatners argue on appeal that the trial court erred in granting summary judgment to Show Media on their respondeat superior claim because the record reveals genuine issues of disputed facts about whether the driver who hit them was Show Media's temporary employee or an independent contractor. As they do not appeal the trial court's grant of summary judgment to Show Media on their negligent entrustment claim, that portion of the trial court's judgment is affirmed. For the reasons that follow, however, we reverse the grant of summary judgment to Show Media on the Boatners' claim of vicarious liability.

Summary judgment is appropriate when the court, viewing all the facts and evidence and reasonable inferences from those facts in a light most favorable to the non-movant, concludes that the evidence does not create a triable issue as to each essential element of the case. On appeal of a grant of summary judgment, we must review the evidence de novo to determine whether the trial court erred in concluding that no genuine issue of material fact[ ] remain[s] and that the party was entitled to judgment as a matter of law.

(Citation and punctuation omitted.) Broadnax v. Daniel Custom Constr., 315 Ga.App. 291, 292 (726 S.E.2d 770) (2012).

[331 Ga.App. 333] So viewed, the evidence showed that Show Media Promotions contracted with companies to produce promotional events which " would include providing brand ambassadors, wrapped vehicles, buses, putting brand ambassadors out there in costumes." HTC Corporation hired an advertising company, Deutsch, LA, to conduct an " advertising event" simultaneously in Seattle and Atlanta to promote the sale of its cell phones. Deutsch hired Show Media Promotions to provide " 8 Fully wrapped [S]mart [C]ars including drivers -- 1 wifi mobile hotspot -- 1 mobile billboard 6'x12' -- 105 working hours per vehicle" to start June 21, 2010, and end July 10, 2010, for a total fee of $312,978. The contract between Deutsch and Show Media provided no other specifics about the advertising campaign.

Show Media's controller testified as the company's designated OCGA § 9-11-30 (b) (6) representative that he could not tell from the contract what the cars were supposed to do. The controller explained that after a company salesperson procured the contract, he would usually sit down with a Show Media graphics department employee to discuss the job and assign it to a specific person to handle the creative work, designing the graphics and working with vendors to produce the advertising material.

For this job, Show Media hired Limo Lounge, owned by Pedro Torre, to secure the Smart Cars and drivers for both cities at a rate of $10,000 per week per city. Torre rented the cars from Avis in South Miami Beach, Florida, on June 17, 2010 and returned them there a month later.

Matthew Salmon worked in Show Media's graphic department and testified that he came to Atlanta with another Show Media employee to oversee the Deutsch/HTC campaign and " make sure it was on track." When he arrived, the eight Smart Cars were in place and wrapped with the advertising vinyl, and Torre had procured the drivers. Salmon rented a car at the airport and ...


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