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Little-Thomas v. Select Specialty Hospital-Augusta, Inc.

Court of Appeals of Georgia, First Division

July 6, 2015

LITTLE-THOMAS et al.
v.
SELECT SPECIALTY HOSPITAL-AUGUSTA, INC

Editorial Note:

This Opinion is Uncorrected and subject to revision by the court.

DOYLE, Chief Judge. Phipps, P. J., and Boggs, J., concur.

OPINION

Page 481

Doyle, Chief Judge.

Joyce Little-Thomas and Walter Thomas (collectively " the Plaintiffs" ) appeal from the grant of summary judgment to Select Specialty Hospital-Augusta, Inc. (" the Hospital" ) in their suit against the Hospital asserting various claims arising from a rape of Joyce by a Hospital employee. The Plaintiffs argue that the trial court erroneously construed the law or overlooked genuine issues of material fact as to their claims for negligent hiring, retention, and supervision and for premises liability. For the reasons that follow, we affirm in part and reverse in part.

To prevail at summary judgment under OCGA § 9-11-56, the moving party must demonstrate that there is no genuine issue of material fact and that the undisputed facts, viewed in the light most favorable to the nonmoving party, warrant judgment as a matter of law. On appeal from the grant of summary judgment this Court conducts a de novo review of the evidence to determine

Page 482

whether there is a genuine issue of material fact and whether the undisputed facts, viewed in the light most favorable to the nonmoving party, warrant judgment as a matter of law.[1]

So viewed, the record shows that in June 2009, Joyce was transferred to the Hospital to continue recovery after she was treated for a respiratory problem at another hospital. After several uneventful days of recovery, a certified nursing assistant (" CNA" ), Warren Butler, came into Joyce's room one night and sexually assaulted her and raped her. Fearing a reprisal, Joyce did not report the incident until three days later when, suffering from abdominal pain and fearing infection, she notified her doctor. Following a police investigation, Butler eventually confessed and pleaded guilty to raping Joyce.

The Plaintiffs filed suit[2] based on theories of respondent superior; negligent hiring, retention, and supervision; and premises liability. Following discovery, the Hospital moved for summary judgment, and the Plaintiffs responded by voluntarily dismissing their respondent superior claim but otherwise opposing the motion. Following a hearing, the trial court ruled that there was an absence of evidence showing that (i) the Hospital's hiring process was unreasonable, (ii) Butler had demonstrated tendencies such that the Hospital should have foreseen that he might commit a rape, and (iii) the Hospital knew or should have known of a security issue arising from sexual assaults or rapes by employees in its facility. The Plaintiffs now appeal, arguing that summary judgment was improper because the evidence demonstrates genuine issues of material fact. We agree in part.

1. Negligence in the decision to hire Butler.

Under OCGA § 34-7-20, " [a]n employer is bound to exercise ordinary care in the selection of employees and not to retain them after knowledge of incompetency. ..." " Thus, the appellate courts have recognized that an employer may be liable for hiring or retaining an employee the employer knows or in the course of ordinary care should have known was not suited for the particular employment." [3] An employer's liability for such a tort arises

only where there is sufficient 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, such that it is reasonably foreseeable that the ...

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