IN ̀THE SUPREME COURT OF GEORGIA

Case No.

RAILSERVG, INC.

Petitioner

v.

COLBY MARTIN [-LCNES

Respondent

PETITION TOR WRIT OF CERTIORARI

Y. Kevin WilliamsGeorgia Bar No. 764850Robert P. Mar•covitcli

Georgia Bar No. 469979R. Brad~Ford BrizendineGeorgia Bar No. 172776

WPINBF.,7tG, WIIE~L~R, HUDGINS,

GUNN BL DIAL, LLC

3344 Peachtree Road N.E. Su,i~e 2400

Atlanta, Georgia 30326(404)876-2700

Atto~•neys for Petitioner

COMAS NOW Petitio~ler Railserve, Inc. ("Petitioner" ar "Railserve") and

files this Petition. for Wr-,it of Certiorari requesting That this Court grant certiorari Co

consider two issues of "great concei•u, gravity, or importance Co the public": (a)

Whether, as a matter of fast impression in any court, flee CourC of Appeals properly

interpreted Restate»~ent (Second) of Torts § 317 to enable a plaintiff to recover in

Cort against his employer as a consequence of i~sjuries he sustains, in part, by virtue

of his own tortious acts committed outside C11e scope of employment; a~1d (b)

Whether, as to Respondent's claim aCtr•ibuting xhe alleged negligence of

Petitioner's enl~loyees Co it under Yespo~zdeat supe~•io~~, tl~e decision of the Court of

A}~peals to reverse Yl~e [rial court's grant of summary ,judgia~ent on a ~rout~d that

Respondent ciid not raise in the trial coure conflicts with this Courts deeis7ou in

Pfeiffer' v. Georgia Dept of Tr~czns~., 275 Ga. 827 (2002). A copy of the opinion of

Court of Appeals in this case ("Opinion") is aCtached hereto as Exhibit A.

INT120DDCTION

This is a case about a potato cannon —which Respondent, 1limself, described

in leis Amended Complarrlt, alternatively, as a "pipe bomb" (K-604, 610) and a

"l~omeinade explosive device"' (R-606) —built by ei~~ployees of Petitioner in its

U~~der Federal law, in the chapter of the criminal code addressing many firearms

offenses, a "destructive device" is defined to include (a) "any explosive ... bomb;"

and (b) "any type of weapon.... by whatever name known which will, or which

inay be readily coi7verted to, expel a projectile by the action of an ex1~losive or

_~_

facility in El T~orado, Kansas. On September 14, 201 Q, several employees of

Petitioner —during their off hours and. while drinking beer o» Petitioner's premises

— decided to light the potato gun. Respondent was one of these employees; as the

CoL~rt of Appeals concluded, it is undispl~ted that lie helped to locate the projectile

inserCed into the potato gun for firing. And, once the poCato cauiiorl/bomb was

ignited, Respondent was injured when it exploded while he was positioned outside

to tale a mobile plloue video of the event. SLiccinctly, Respondent assisted in Clie

detotiat~ion of a bomb, and yet, he is seeking eecovery from his former employer

(Petitioner) on account of the injuries stilstained w11en Lhat bomb exploded. Thrs

sounds ludicrous, and, despite tl~e ruli»g of the Court of Appeals in the Opinion, it

is as a rl7atter of law.

But beyond the implications of the Opinion for the parties, and

notwithstanding xhe fact that the substantive law of Kansas governs this case (see

Opia~ion at 4 n.4), this ruling presents other, more general matters of "great

coneet~n, gravity, or importance to the public" in Georgia, within the meaning of

Georgia Supreme Court Rule 40, t1~aCjustify a grant of this Petition.

Initially, as a matter of first impression ailywl~ere in the country, tl~e Court of

Appeals leas interpreted Restatement (Second) of Tores § 317 (tlie basis for

Respondent's second cause of action) —which imposes a duty, in limited

other propellant, and wl~icl~ 11as airy barrel with a bore of snore Haan one-half inch

in diameter[.]" 18 U.S.C. § 921(a)(4)(A) and (B).

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circumstances, on an employer to protect LUird parties from t11e acts of its

employees who create an unreasonable risk of'lharm while acting outside the scope

of thee• employti~e»t — in a manner that allows a plainxif'f-einployec who is a

tortfeasor to recover from his employer for injw~ies lie sustained as a result of

outside-il~e-scope CorTious conduct rn which he engaged. This interpretation is aC

war with fhe plain words of § 37.7, but more significantly, because Che Opinio~l is

the fizst and only precedent in any court on this topic, it may very well open. the

door for previously untl~inl<able and unwarranted litigation under § 31.7 brought by

employees on account of torYious off-duty activities in which they engage,

including bomb-making.

Second, the reasoning urged by Respondent and employed by the Court of

Ap~ea1s to reverse the Crial court's grant of summary judgment on Respondent's

negligence claii7i against Petitioner on a resl~or~deat szrperioi• theory (1s a result o,f

alleged negligence committed by certai» purported supervisory employees of

Petitioner) was never raised by Respondent in the trial court. Petitioner argued to

the Coure of Appeals that Respondent I~ad waived the right to assert this theory

(which is flawed on its merits) for Lhe first time ot~ appeal, but that court ignored

this contention, and in doing so, it undermined this Court's command with respect

to the proper handling of a summary judgment oi~ appeal. As a matter oi' law,

udder Pfeiffef~ v. Georgia Dept. of Transp., 275 Ga. 827 (2002), this Court requires

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a party (sti~ch as Respondent) that is opposuig summary judgivent to raise in the

trial court all legal theories it believes to be pertiue~lt to its opposition. Respondent

did not do this, a:nd thus, i»sofar as his resporadeat superior negligence claim. is

concerned, tl~e Opinion directly conflicts with Pfeiffer.

~ ~ ~

Tl~e decision by the Court of Appeals is extremely disturbing. If Chis Coiut

decides not to grant this Petition, tl~eu it will be the first Supreme Court in our

coLi~~hy to embrace tl~e proposition that a bomU maker may sLie aid obtain ate

award of money fi•om his employer if xhe bomb is made at his workplace.

Plai~ltiFf's Amended Complaint alleges t11aY he was injL~red ley a bomb, and tlae

CourC of Appeals agreed that he pareicipated in tl~e making of this bomb.

Today is tl~e anniversary of the Boston Marathon banbing. By tl~e

reasoning of the CoL~rt of Appeals, if the Boston Marathon bombers lead

constructed their bombs in their workplace using materials gathered there and wit1~

the knowledge of their foremen, and if one of them had Ueen injured when the

bombs exploded, then he could lave sued his employer on account of his injuries.

~s a matter of ]aw and public policy, will this Court allow the decision of tl~e

Court of Appeals to set precedent for such an absurd and troubli~lg proposition?

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STATEMENT OF FACTS AND PROCEED,ING5 BELOW

DeWayne Taylor was a foreman of a work ceew for Petitioner based out of

its El 'Dorado, Kansas yard. (Taylor• Dep. at 21). Respondent was a member of

Mr. Taylor's work crew on September 14, 2010, Che date of the accident in issue.

(Id. at 22). That day, .Mr. Taylor's crew lied wor]<ed a job in Wichita, Kansas, and,

upon completion of its work at that location, it retut~ned to the ~1 Dorado yard. (Id.

at 28-29).

When. the crew returned to tl~e El Doeado yard aC some ~oinC after 5:00 p.~~i.,

its meinUers retreated Yo the back of a workshop area, where meclia~iics were

worki~ig on a dmnp h•uck. (Taylor Dep. aC 37-38). As Mr. Taylor recalls, this

group included himself, Respondent, Brandon Dawson, Tim Taylor, Troy Cramer,

anti Pete DeLeon. (Id. at 38). Tl~e group was drin]<ing beer at t17is time, and

Messt~s. Dawson and DeLeon as well as Tiu~ Taylor were then "on the alocic"

working on tl~e dump truck. (Id. at 42; DeLeo~1 Dep. Vol. 2 at 13, 43).~

Eventually, tl~e group began to discuss abomb/ca~lnon that I~ad been built, and

which, on the previous day, had been stored in a corner of the shop "behind some

racks and stuff"' (Taylor Dep. at 45; DeLeon Dep., Vol. 2 at 45-46). Tl~e plan was

to shoot ca~1s of beer or soda from the bomb/cam~on. (Taylor Dep. at 45).

~ Pedro DeLeon's de~aosition was taken oi~ two days, August 4, 201 ] and

November 8, 2012. The August 4, 201 I deposition transcript is deuomi~nated lierc

as "Vol. P'; the November 8, 2012 deposition transcript is "Vo1. 2."

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Mr. DeLeo~~ testified that DeWayne Taylor had been building tl~e camlon on

tl~e evening of Se~teii~ber 13, 20].0, in tl~e slop on the Railserve pt~emises.

(DeLeon Dep. Vol. 1 at 39-40, 42-43). Mr. DeLeon further• scaled that he lead

welded legs onto tl~e cannon. that sauce eve,riing, and that Respondent was present

when he was doing so. (1d. at 43, 45; DeLeon Dep. Vol. 2 at ~}8). Respondent was

aware of the fabrication of the cannon because, "I-1e had grabbed orie of the

weights i.e. counterweights for a balance scale in tl~e shop] and said we could

shoot this off, off of it." (~DeLeoil Dep. Vol. 2 at 49).

Eventually, the cannon was loaded on a trailee about I5-20 feet away from

the back of tl~e shop. (DeLeon 'Dep. VoL 2 at 48, 50, 52; DeLeon Dep. Vol. 1 at

64, 95). As described Uy DeWayne Taylor, "Everybody just went and looked for

things to shoot oPf." (Taylor Dep. at 53). Respondent found "a piston or a sleeve

of something, but it was solid[,]" that he "set ,.. down inside the [...] cannon.[.]"3

3 Respondent unequivocally testified at leis deposiTion that he does not recall what

1~appened on September 14, 2010, and that all tilt lie knows aborit what did occur

lie learned from his mother, father, ai d dodoes. (Hines Dep. at 29) ("Q. Do you

know what happened to you ou September 14, 201 U? A. No."); aC 30 ("Q. And you

don't ]lave any memory oi'that other than what other people told you; is that right?

A. Yes."); and at 31 ("Q. So everything you lalow about that day comes from your

father, Brenda, your mother, or your doctors? A. Yes."). Notwithstanding

Respondent's lack of memory of September 14, 2010, he attempted to deny that he

helped to load the cannon, as DeWayne Taylor testified. (Id. at 35) ("Q. Did you

help load this device, like ptit stuff iil it — A. No."). Yet, when asked to explain. the

basis Tor this testimony, Respondent testified, "Because I wo~ildu't do that." (Id. ~t

37). Tl~e trial court noted that, "PlainYiffi's elicited Yestimony was not based on

facts as he perceived Chem but based. on what he believed ... would not be his

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(Id. aC 54). Mr. DeLeon observed DeWayne Taylor pouring powder into Ylie pipe

of the potato guu. (DeLeon Dep., Vol. 2 at 21). DeWayne Taylor testified that,

"(a]s far as l know[,]" gunpowder was used i~u the cannon. (Taylor Dep. at 94).

Next, DeWayne Taylor acknowledged that lie participated in lighting the

cannon with a sparkler. (Taylor Dep. at 56). After lighting the cannon, DeWayne

Taylor explained: "We all. ran inside. * * ~ Everybody but Colby [i.e.

Respondent]U]" who "[w]ent up tl~e fi~rc escape." (Id. at 60). Respondent lead

positioned l~imseif "maybe 75 feet its the air." (Id. at 62). The cannon deConated,

and, as a result, Res}~ondent was injured. (.Id. at 63-65). There is no dispute that

Respondent voluntarily close to stay outside a~~d take a mobile phone video of this

event.4 (Taylor Dep. at 62-63; Hines Dep. at 32).

l~~ an Order, dated May 13, 2013, the trial court granted summary judgment

in favor of Petitio»er on all three counts of Respondent's Amended Complaint (R-

practice." (K-1386 u.6). Without expressly stating so, the Court of Appeals agreed

with the trial court's assessment, because it included the following ii1 its recitation

of facts viewed in the light most favorable to Respondent: "AfCer placing the

cannon on top of tlae trailer joist outside of the shop, everyone in the group —

includarrg Hines —began loolci,ng for mateeials to fire, and the cannon ultimately

was packed wit]2 gun powder and pieces of Metal." (Opinion at 3) (emphasis

added).

4 Respondent alleged isi his Ainei~ded Coinplaiilt that, "the subject incident

occw•red of a Lime after his shift with Railserve was over aild he was outside the

course a~~d scope of his employ~nei~t wit1~ Railserve at the time the incident

occurred." (R-603, ¶ 4).

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1383-1.391.). In the Opinion, iss~~ed on Marc11 28, 2014, the Court of Appeals

reversed this Order in its entirety. All Uiree members of tl~e Court of Appeals

panel concurred in the judgment, although JLldge Andrews concurred specially.

Judge A~ldrews wrote: "Given the facts showing that Hines knowingly participated

iii the liorseplay with the boilib, loaded it write metal, helped to light the fuse, and

recklessly exposed himself to the exploding bomb, l camiot concur• in the majority

opinion without sCating my view CI~aY, under applicable Kansas Iaw, Hines's actions

were the sole proximate cause of'l~is own injuries." (Opinion, Special Concurrence

at 4).

ENUME~RATTON O'F E12RORS

L THE COURT OP APP1sALS ERRED IN RrVERSING TI-II3 TRIAL, COURT'S GRANT OI'

SUMMARY .TUDGMLNT AS 7'O RCSPONDENT'S CI.,A1M UNDP,R RP.,S7'ATGMGNT (SFCOND~

OF TORTS § 317 BECAUSE, IN A MATTER OF rIItST IMP[2FSSlON, [T INCOR321~CTLY

IN'CLRPRrTF..D TI-IP TEXT OP TI31S SUCTION, AND ]N DOING SO, IT HAS FAVED THE WAY

1N GEORGIA AND F,LSrWH~RL? POR A NF'W TIiLORY OT LIABII.,ITY.

2. BY D1SRI;GARDING RF;SPONDEN"C'S WAIVER OI' THE THI~ORY THAT SF,RVED AS

ITS BASIS FOR REVERSING T11i; TRIAL COURT'S GRANT OP SUMMARY JUDGMI~NT ON

THT RLSPONDF.,'AT SUPERIOR CLAIM, THT COLIR'I' OF APPALS OPINION CONPI.ICTS

WITH THIS COURT'S DPCISION IN PI'FIFFfsR V. GEORGLA DFPARTMF.NT OF

TRANSPORTATION.

~.~

3. IF THIS COURT GRANTS C~RTIORAItI ON THr FOR~GOLNU ENUMERATIONS OI

ERROR, "t'HI~N AS A MATTL R OF JUDICfAI., ECONOMY, 1T SHOUI:A ALSO I~GCIUL'

WHGTH~R TI1C COURT OP 1~PPGALS ERRED IN RLVTRSING T11G ~'121AL COURT'S

GRANT OF SUMMARY .IUDGMfNT IN FAVOR OE~ PITITIONGR ON R~SPONUGNT'S

NCGI,IGLiNT SUPfiRVISION CLA1M.

ARGUMENT AND CITATION OF AUT73OR[TI~S

I. TI-IE COURT OF APPEALS ERRED IN REVERSING THE TRIAL

COURT'S GRANT Or SUMMARY JUDGMCNT AS TO

RESPONDENT'S CLAIM UNDER RESTATEMENT (SECOND) OF

TORTS § 317 BECAUSE, IN A MATTER OF FIRST IlV]PRESSION,

IT INCORI2ECTLY INTERPRETED THE TERT OF THIS

SECTION, AND IN DOING SO, TT :HAS PAVED THE WAY IN

Gis'ORGIA AND ELSEWI3~RE FOI2 A NEW THEORY OF

LtASILITY.

The trial. court concluded thaC, as a matter of law on tl~e undisputed facts,

Respondent could not recover on his claim based on Restate~nenC (Second) of Torts

§ 317 because Respondent "is not within the class of persons Restatement § 317 is

designed Yo protect."s (R-1391). The trial court was correct in reaching this

s Kansas recognizes the relevance of RestatemenC (Second) of Torts § 317 in the

analysis of certain negligence claims. Meyers v. Gi•ubazrglz, 242 Kan. 716, 720

(1988) ("Sectio~~ 37.7 recognizes that the `special relationship' of employer and

employee imposes a duty on the employer to exercise control over Y1~e employee

acti~~g outside the scope of employmetlC under limited circumstances."). Although

this CourC has not passed on this issue, tl~e Court of Appeals seems to have

accepted t11e Ylieory of negligence liability articulated in § 317 of the Restatement.

See, e.g., Moderiz Woodf~aen of America v, Cf~u~raploiz, 226 Ga. App. 567, 569

(1997) (discounting § 3l 7 liability on the facts of tl~e case).

conclusion —and tl~e CourC of Appeals erred in ruling to the conri~ary —because, on

the plain words of ~ 317, an employer (such as Petitioner) lias no duty Co protect a

malfeasant employee acCing outside the scope of his em~loy~nent (such as

Respondent) from sustaining an injary resulting, even in part, froiv leis own.

conduct.

A. UND~I2 ITS PLAIN 1VIEANiNG, § 317 PR~CLUDIs'S A MAL,F~ASANT

`SERVANT" PROM RGCOVIsRING AS AN `~O7'H~R" AGAINST HTS

°GMAST~R" P012 TNJURI~S H~ SllSTAINS AS A RESULT Or

MISCONDUCT IN WHICH H~ PARTICIPATT5.

Tl~e dispositive language of § 317 pt~ovides that, with conditions not relevant

here: "~ masCer is under a duty to exercise reasonable care so to control his servant

while acCing outside the scope of leis employment as to prevent l~iin from

intentionally harming others or from so conducting himself as to create an

tmreasonabte risk of bodily l~ai~m to them.[.]."~ (Etn~hasis added).

~ In its entirety, Restateme»t (Second) of Torts § 317 reads as follows:

A master is under a dLiiy to exercise reasonaUle care so to control his

servant while acting outside the scope of his employment as to

prevent hrin from intentionally harming othes-s or fi•on~ so eondacting

himself as to create an unreasonable risk of bodily Darin to them, if

(a) the servant(i) is upon the premises in possession of the master or upon. which the

servant is privileged Yo enter oily as leis servant, or

(ii) is using a chattel of the master, and

(b) the master

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Thus, tl~e text oi' § 317 reveals that, when it is in play, there ire three,

separate categories of people or entiCies involved: (a) the "~7iastei;" wlio has the

duty to control his servanes i~a certain circumstances when they are acting ouCside

the scope of them employment; (b) the "servant," who, "while acting outside the

scope of leis employment[,] ... co~iduct[s] himself as to create an unreasonable risk

of bodily harm' ;end (c) tl~e "others," who are the vicfims harmed by tl~e actions of

a malfeasant "servant." On its face, Phis verbiage precludes a "setvane" who

engages in condt~et that "create[s] an unt~easonable risk of bodily harm" from being

an "other," because, by definiCion, an "other" ~nusC be enCirely distia~ct from tl~e

"seivanC" who is participating in the wro,ngdoit~g. l0 Tx~ Ox~ottn ~NGL[sH

DIC't'toNARY 980 (2°`~ ~d. 1989) ("other" defined: "That one of hvo tJ~at remai~~s

after one is taken, defned or specified[.]") (emphasis added); see also Mr~[tRt,aty~

WGBSTLit (otvLiNE r~iTloN) ]lttp://www.inert•iaul-webster.coin/dictionat~y/other

("other" defined as, "being Che one or ones dt,sfiinct from Chat or those Cost

mentioned or implied.") (Emphasis added).

Simply put, ~mder its plain meaning, arsd as logic and policy considerations

otherwise would dictate, § 317 does not allow one to be both a "servant" who

(i) laiows or leas reason to lrnow that lie has tl~c ability to control his

servant, and

(ii) knows or should know of the necessity and opportunity for

exercising such control.

participates in committing an outside-the-scope tort and an "other" who is harmed

by that tort. Tlie two must be entirely distinct, and tl~e ~i•ial cotiu•t correctly

concluded as i~lncli. (2-1392) ("Tl~e ~laiu langaage connotes that Plar~ltiff can~loC

be both a ̀ servant' [whose behavior' ~nigl~t Have rec~ui7•cd control] and an ̀ other' ...

whom il~e inasCer is wider a duty to protect.").

The Court of Appeals rejected this reasoning, xliough it did not clea~•ly

explaui w11y. It stated:

We are not persL~aded that tl~e trial co~~rt's strained heading of § 317 is

required by its "plain language." The term "other" is defined as "that

one of two which remains after one is Oaken, defined, or specified; the

remaining of two." But contrary to the trial court's assertion, the use

of the ter~1~ "other" in the coi~texC of this section is merely used to

distinguish all remaining persons, i.e., those that could suffer tl~e harm

from the servant responsible for causing the harm. Indeed, "others" is

tl~e simplest and plainest term the drafters of § 317 could possibly use

to draw such a distinction. Additionally, the trial court's assertion Chat

a }?laintiff cannot recover under § 3l7 when lie contributes to his own

harm is simply not supported by any of Che langtiiage contained in that

section of tl~e Restatement. Thus, we do not agree that Hines's status

as a servant precludes l~iin from being an "other" under ~ 317.

Opinion at 8-9 (footnote omitted). What makes the conclusion drawn by the Coure

of Appeals fi•on~ this analysis difficult to com}~t-ehe~ld is that it is precisely because,

as tl~e Court of Appeals stated, "tile use of the term `other' in the context of this

section is merely used to disCinguisl~ all remaining persons, i.e., those that could

s~Gffer Che farm from the servant responsible for causing the harm[,]" that under §

3'17 an "other" cannot also be a malfeasant "servant" wl~o participates in causing

~~~

the harm at issue. In smn, the eo»clusion of the CoLrrt of Appeals does i~ot follow

.from its reasoning (wllicl~ essentially trades Chaff of Petitioner), and because it is

undispLited that Respondent was a malfeasant "se~va~~Y' wl7o helped to load kl~e

potato guu/pipe bomb, as a matter of law Ise camlot then also be ail "other" who

may recover• against Petitioner undea• § 317.

Moreover, although the trial. court slid not base its decision o» this ground

and Petitioner expressly disavowed it (A}~pellee Br. at 17 n.8), ttie Court of

Appeals inexplicably addresses and correctly rejects tl~e proposition that § 317

categorically prohibits any servant fro[n recovering fironl his employer under §

3'1.7. (Opinion at 9) ("[W]e do not agree that Hines's sCatus as a servant precludes

l~im from being an ̀ other' under § 3'17."). IY I~as always been Petitioner's position

that an employee who is ~aot a malfeasant "servant" ~mder § 317 naay recover from

leis employer if the other conditions of § 3 ] 7 are satisfied. So, for example, if

Responde~lt lead played no role in the bombing, end yet, had been injured as the

result of the torCious conduct of his fellow servants —which, of course, is not what

actually occurred —then, assuming no workers' compensation bar were to apply,

Petitioner acla~owledges that in t1~at circumstance it could have been held liable

under both § 317 and also Restatement (Second) oi' Agency § 213. This renders

the Court of Appeals' discussion based on § 213 aC pages 9-] 0 of the Opinion, as

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well as its citation of authorities at page 11, footnote 1.7 irrelevant Co Clue actual §

3l7 issue on appeal..

B. THE OPINION IS NOT' ONLY ~1~NCORR~C7'~ BUT, AS TAB IiTRST

DF,CISION "f0 ADDRESS THG ISSUE P12ESIsNT~D, IT SETS A

DANGI~:ROUS Pt2F.CEDTsNT IN GTORUTA ANT) ELS~WHI;RG.

According to xl~e research. of counsel for Petitioner, the Opinion of Che Court

of Appeals stands as tl~e first publisl~cd or unpublished decision available in the

WestlawNextTM database to address the issue presented by this case: wl~etl~er an

employee who participates in a tordous, outside-the-scope act that causes leis own

iizjuty may recover wider § 317. Moreover, although the Court of Appeals

technically considered tip s issue under Ka»sas law, fliat court decrded it on a blank

slate and by means of a purely textull reading of § 317 as to which it applied no

Kansas-particular gloss. It thus follows that there is every reason to believe that

trial courts in Georgia, as well as tl~e Court of Appeals, will consider the Opinion

to be strongly persuasive authority and otherwise indicative of Georgia .law on this

point.

That no prior case law exists on Chis issue is unstiirprising because,

evidently, those injured by their ow~1 ouSside-the-scope exploits at an employer's

work premises rarely, if ever, previously lave tl~ougl~t to sue Cl~eir employers under

§ 317 to recover for injuries that resulted, aC least in part, firom their own tortious

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i~~isconduct This is likely to change in Georgia 1ndrn of6er states if this Court

permits the Opii~io» oPihe CourC of Appeals to staid.

Fundamentally, § 317 is a narrow exception to the general principle of

Restatement (Second) of Torts § 315 that, "There is no duty so to control Che

condr~et of a third person as to prevent him from causing physical harm to

another... ," See also Fowler V. Har}~er &Posey M. 1{ime, T]ae Du~~ to Cos~trol tl~e

Conduct of Arrot7~er, 43 Yale L.:i. 886, 887 (7934) ("[I]t may be said that there is

ordinarily rro general dozy fo act ,foi~ d7~e protection of oChers. * * ~ Certain

situations there are, however; iii which the social relationships of the parties are of

such a character that fhe law imposes the affirmaCive duty upon one person. to

attempt to control another's conduct to avoid air unreasonable risk to a third

person.") (einpl~asis added).

However, dl~ Court of Appeals has iYaterprefed § 317 in a broad manner that

not oi11y pays little heed to the actual verbiage of that section, but also that

h•asnples upon the general policy ui7derlyiiag § 315, which represents afundamental

tenet of tort law. AY Che most basic level, this Court should grant U»s Petition and

supplant the Opinion of the Court of Appeals on the § 317 issue —file only existing

precedent —with oue t1~aY propet-ly interprets § 317 and ~prechides one who

participates ia~ a l~o~nbing on leis employer's premises fi•om recovering on account

of his own misconduct. Otherwise, the Opinion may very well stand as the first in

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a line of cases that allows for a theory cif liability xhat khe drafCers of § 317 could

clot have intended, and C1iaC, as a matter of law a~~id public policy, dais Court should

not permit to gestate.

II. BY DISREGARDING R~SPOND~NT'S WAIVER OF THE THEORY

TI-IAT SERVED AS ITS BASIS FOR REVERSING TH.E TRIAL

COURT'S GRANT OF SUMMARY TUDGMENT ON TT3E

RESPONDEAT SUPERIOR N~GLIGENC~ CLAIM, THE OPINION

OF THE COURT O,F APP~+ALS CONFLICTS WiT13 THIS COURT'S

DECISION IN PFEIFFER v. GEORGIA. DEPARTMENT OF

TRANSPORTAT70N.

Whe~~ he lost in the trial court on suuan~ary judgment with respect Co his

res~or~deat superior negligence claim, Respondent re-tooled his argument and

offered a theory ou appeal that Ise dicl not previously raise in tl~e trial court as a

basis for the Court of Appeals to reverse. The Court of Appeals accepted this new

theory, and when it did, it allowed Respozident to avoid tl~e rules for litigating

summary judgment on appeal, and it disregaeded ehis Court's holding in Pfe ffer

setting farth those rules. This Court should grant this Petition to resolve the

conflict between Che result of the Opinion. and Pfeiffer.

A. RES}'ONDCNT'S THEORY IN OPPOSITION TO SUMMARY JUllGMTNT IN

THr TRIAL COURT.

In his Response to Petitro»er's Motion for Su~nmaiy Judgment with respect

to leis negligence claim against Petitioner based on r•espondeat supe~~ior,

Respondent's posixion was that PeCitiorier is liable on lccomit of the negligent

failure on tl~e part of certain of its "su~erviso,ry" employees —Brandon Dawson

-16-

acid Tien Taylor — to stop Clue potato gun-making employees fi-oril igniting it and to

report the incident up the chain. (R-1072) ("Dawson and Tim Taylor were on the

Railset~ve premises, had a respo~asibility to seop and report the existence of the

potato cannon, had actual Knowledge of tl~e potato cannon., but did nothing to stop

1» iYs Reply ii1 Support of its Motion for SniYsmary Judgu~eilC, Petitioner,

argued in response fo Chis proposition:

It may or may not be the case that Tien Taylor and Brandon Dawson

owed a duty to their e~nr~Zoyer, Railserve, to report any knowledge tUat

they might have had regarding the potato gun and to prevezlt it from

causing ha~•m to otl~et-s, but they owed iao dzrry to Alaintiff under

Kansas law to prevent that farm from eventuating. This is so becatiise

there is no general duty to prevent farm to others, a point il~at the

Kansas Supreme Court leas tuade u~anifestly clear on several

occasions.

(.R-1320) (emphasis in original). Petitioner continued: "Thus, it necessarily

follows, as a maYtet~ of law, that if Tim Taylor and Brandoa~ Dawson had any deity

at all to prevent the explosion, they owed this duty to RaiJserve, not to Plaintiff.

And, of course, since these Rarlserve employees, in their i~lactioi~, did not violate

any duty vis-a-vis Plaintiff, there is no underlying liability for which Railserve

conceivably could be held accounCable under respondeat superior." (R-1.321).

Some of the IZailseive employees involved in the construction and detonation of

the can~~on were foremen, which means that they had job siCe responsibility to

verify the quality and method of work, but that they did »ot Dave hiring, firizig or

diseiplinaiy responsibilities. As such, from Railse,rve's perspective, these forezt~en

were not supervisors.

Respondent did not rebut these poinCs at the I1e~ring i~~ the trral court on

Petitioner's Motion for Swmt~ary Judgment. (MS.I Tr. at 16-45). Indeed,

Respo~ldenY's counsel aclaiowledged to Che trial court flaat Clue crux of his theory as

to tl~e undei-lyii~g negligence of the "supervisory" employees that should be

attributed to Petitioner under respondent superior was the failure of these

su~~ervisors to stop and report tt~e conduct of the pipe bomb-making employees.

(Id. at 25) ("The Court:... That is the breach of duty that yotii are focusing on, the

failure to report, the failure to stop it, the f~rlure to get the~7i off the premises....

Mr. White: I Chink that's well put, Your I3onor[.]").8

It was based on this theory of Respondent that the trial coln•t rejected liis

resl~oizdecrt superior claim on summary judgment and adopted Petitioner's

reasoning:

~ That this was Respondene's theory in opposition to the Motion for Summary

;Iudgnlent is cemented by virtue of leis characterization of the issue in Ivs

Opposikiou to Petitioner's Motion for' Summary Judgment. See, e.g., (R-1077)

("As ~n e~7~}~loyee in the course and scope of his employment, [Beandon] Dawson

had a duty and responsibility to follow Railserve policies and p~°ocedures. As an

employee in the course and scope of leis employi~~eut, Dawson violated that duCy

by failing to clear off the-clock employees firoin khe premises, failing to report the

erection of flee potato gun, and failing to put a stop to the detonation oi'tl~e potato

gu~~.") (emphasis added; record citations omitied); (R-1080-87) ("As an employee

in the course and. scope of leis employment, Tim Taylor had a duty and

responsibility to follow Ratlserve policies and procedures. Tim Taylor violated

that duty by failing to report and put a sCop to tl~e sCorage and construction of tl~e

potato cannon in leis shop area.") (e~npl~asis added; record citations omitted).

-18-

Altl~ougi~ Tim Taylor and Brandon Dawson may leave Awed a duCy to

their employer, Defendant, fo report Cheer lalowledge of tl~e potato

guu, Lhey did not owe a duty to Plaintiff according to Kansas law.

Under Kansas law, there is not genera] duty to prevent harm to others.

Therefore, as a matter of law, if no deity exists between Defendant and

Plaintiff, t11eu there cannot be vicarious liability for claims that cannot

be asserted directly againsC its employees.

(R-1390) (citatioi2 omitted).

B. RISSPONI)~N7''S NSW THTORY ON APP,GA,L~ W,ffiCH IS ACCTPTliD BY

'PHA COURT OF APPT.ALS.

On appeal, Respondent tl~er~ raised a new theory in effort to save Isis

respondeat sisperior theory, one that tl~e Court of Appeals accepted. Specifically,

Respondent maintained on appeal that tl~e trial cow~t erred because, "It ignores tl~e

]aw that the employer-employee re,laYio~~ship gives eise to an employer's duty to

provide a safe working enviromnent." (Appellant Br. at 8); see also (Reply Br. of

Appellant at 2) ("Railserve never addresses tl~e heart o1' Hines' i°espondeat supeYior

claim — Railserve is vicariously liable for its employees' undisputed failure to cae~y

oiit their duty to provide a safe working enviromnent f'or its employees.")

(emphasis in anginal)); (id. at 3-4) ("Thus, the uncontested failure of Railscrve's

on-site, on-duty managers and supervisors to even attempt to perform the safety-

related portions of their jobs represents ata undispz~ted breach of their duties for

which Railserve is vicariously liable.").`'

`~ By no means does Petitioner concede that this new theory is correct udder Kansas

law. Indeed, Respondent has never articulated a duty that any of Petitioner's

-19-

When. Petitioner asserted on appeal tl~aC Respondent l7ad waived iYs new

theory in oppositio~l Co summary judguiei~t for purposes of appeal (A~pellee Br. at

6-8), Respondent merely responded in concltiisory fashion that he had presented it

in tl~e trial court, buf 1~e never explained in his briefing on appeal. how oe when. he

did sa (Appellant Br, at 6 n.l); (Reply Br, of Appellant at 2-3). Tl~e fact is that ]~e

did not.

In the Opinion, the Court of Appeals did not acknowledge the significant

fact that Respondent had waived tl~e argument that lie presented to overturn the

h•ial court's grant of summary judgment on his respondent superior ~~egligence

claim. InsCead, it ruled on tl~e merits of fhe claim, i~icorrectly, in PeCitioner's view

(see Pootilote 9):

[C]ontra.ry to the trial eourC's assertion, the rule in Kansas is simply

that an ernployer leas tl~e duty not to expose his employees to perils

wliicli t11e employer inay guard against by tlse exercise of reasonable

care. And Mere, there are certainly genuine issues of material f~cC as

to wheTher both Tien Taylor ai d Dawson breached that duty by failing

to direct off tl~e-clock employees, including Hines, to stop drinJcing

beer, to stop attempting to detonate a dangerous explosive device, and

to leave tlae premises.

(Opinion at 6) (footnote and internal quotation marks omitted).

By disregarding Respondent's waiver as to the respor~deat superior claim,

the Court of Appeals pei•~nitCed Respondent to accomplish precisely what this

purported "supervisors" — as opposed to Petitioner itself —owed directly Yo him

that could Ue attributed to Petitio»er on a theory of re,s1~or~deat szrperior.

Nonetheless, this issue of Ka~~sa~s law is not the subject of Chis Petition.

_Zp_

Court forbade in Pfeiffer: to wiel~hold a legal argument in opposition to a motion

for summary judgment in the trial court and their present it for xhe first Lime on

apUeal.

The purpose behind sttm~nary judgment is to dispose of liCigation

expeditiously a»d avoid useless tinge a.nd expense to go through a jury

trial. This ptn•pose is thwarted tivhe~~ a pm~ty naay witlalzold

naeritorioars legal arga~naerrts until appeal. Allowing a party to raise

new argmnents also ignores the duties and responsiUilities placed on

the 7>arties by OCGA § 9-11-56. Each party has a duty to present his

best case on a motion for sumi~~ary judgment.

Pfeiffer 275 Ga. at 828 (emphasis added; footnote and internal quotation. marks

omiCted). And, as this Court emphasized in Pfeiffer, the obligation of a party

resisting sr~inmary judgment to present all of his legal theories ii1 the trial courT is a

matter of fundamental fairness fo its opposing parties as well as to the trial court.

Fairness to tl~e trial courC and to the parties demands that legal issues

be asserted in the trial court. li' tl~e rule were otherwise, a party

opposing a motion for siunmary judgment need not raise any legal.

issue, spe~ld the next year ~l~inking up and researching additio~~al

issues for the appellate court fo address, and require the opposing

party to address those issues witl~iti the narrow time frame o,f ap}~ellate

practice rules. Therefoee, absent special circumstances, ail appellate

court need not consider argwnents raised for the first time on appeal.

Id. aY 829 (footnote omitted).10

10 Tl~e CoueC explained that, "`Special cit-curnstances could include ̀ a jurisdicfio»al

challenge, a claim of sovereign i~n~ntiinity, a serious issue of public policy, a

el~aalge in the law, or [an] error that works manifest injustice.' See 19 Mooi~e's

Federal Practice, sec 205.05[2] at 205-58 (Matthew Bender 3d ed.)." Id. at 829

r~.10. No such eircurastauces exist in this case.

- 2 ]. -

Tl~e sce~tario suggested by Yhis Court rn Pferffer is exactly what occurred in

Phis case. I2esponde~lt did noY raise 1~is "failure to provide a safe work

environrneut" aa•gumentrn ouposition to Petitioner's [vloCion for Swnmary

Judgment in Che xrial court; necessarily, tl~e trial court did not consider this theory;

and then, after Respondent lost in the trial court, lie asserted it on appeal.

This Court should grant this :Petition. with respect Co the bolding oFthe Court

of Appeals reversing tl~e trial. court's grant of summary judgment on Respondent's

respo~~deat superior negligence theory (a) becatue it conflicts with Pfeiffer; and (b)

to clarify that, in the absence of "special circtunstances" as articulated in Pfezffer•, a

reviewing court may not consider on appeal 1 legal tl~eoiy in opposition Co

summary judgment raised for tl~e first time on appeal by a parCy against whom

s~immary judgment was entered. As this Court stated in Pfeiffer, fu»damenta]

fairness and the integrity of ehe swnmary judgment peocess demand »od~ing less.

IIL IF TI3IS COURT GRANTS CERTIORARI ON THE FORGOING

ENUMERATIONS OF ERROR, THAN, AS A MATT~li OF

JUDICIAL ECONOMY, IT SHOULD ALSO D~CIllE WHETHER

THE COURT OF APPEALS ERRED IN REVERSING T'li~ TRIAL

COURT'S GRANT OI+' SUMMARY JUDGMENT 1N FAVOR OF

YGTITION~R ON RESPONDENT'S N~GLiGENT SUPERVISION

CLAIM.

Among the arguments t11at Petitioner asserted in the Court of Appeals in

support of the trial court's gra~it of summary judgment on Respondent's negligent

supervision claim under Kansas law is that for a plaintiff to prevail on such a

-22-

clai~~~, he n~i~st show that the underlying tortious acts of an employee (a) occurred

during nonnll warkii~g I~om-s; and (b) bear a nexus with Che operations of hls

employer. (Appellee Br•. at 24-27); see Kitzle~• v. ~llenco, Inc., 147 P.2d 1095,

2006 WL 3740852 at *8 (Kai . CC. App. 2006) (table) (citing Schmidt v. HTG, Inc.,

265 Kan. 372, 401-02) (1998). Tlie Court o,f Appeals ignored this argument and

the law upon which it is based when it reversed the trial coilrt's grant of suin~nary

judgment on tl~e negligent supervision claim.

Petitioner recognizes that this is an issue of K~1sas law, ori~ upon. wlticl~ this

Coiut ordinarily would not ~ra»t certiorari. However, the Court of Ap}~eals was

manifestly incorrect in its determination of this issue under the case law ciCed

above, and this, in tl~e interest of judicial economy, if this Court otlleewise grants

this Petition to consider tl~e first two issues presented here, then PetiCioner requests

that it also grant certiorari to review this o,ne as well. See Nat'l Union Fire Ins. Co.

v. flm. Motorists Ins. Co., 269 Ga. 768, 770 (1998) ("American Motorists also

asserts arguments beyond the scope of'the question posed on certiorari. American

Motorists raised these issues in tl~e court of appeals and contend that they provide

independenC bases for precluding National Union's claims, but the court of appeal

did not address them. Since this action has Veen on appeal for two years, we will

consider these issues in the interest of judicial economy."); cf. Grant v. Bell, 246

Cia. 371 371 (1980) ("We granted certiorari to attempt Yo eliminate confusion

-23-

which has arisen out of the three previous appellate decisions i~1 Chis case. In the

.interest of judicial economy, we wrll decide tl~e remaining issue of this appeal.")

CONCLUSION

WHEREFORE, for Clue above and roregoing reaso~~s, Pekitioner Railserve,

lne. respectfully requests that Phis Court grant this Petition and issue a writ of

certiorari to review the decisio» of Clue CourC of Appeals in this case.

RespecCfully sal~nlitted, this 15 x̀' day of April, 2014.

3344 PeachC~•ee Road N.~., Stiute 2400Atlanta, Georgia 30326404-876-2700404-875-9433 FaY

WL~INBF.RG, WIICELGR, HUDGINS,

GUNK SL D1AL, LLC

/s/Y. Kevin Wzllianas

Y. Kevrn WilliamsGeorgia Bar No. 764850Robert P. Marcoviteh

Georgia Bar No. 469979R. Bradford BrizendineGeorgia Bar No. l 72776

Atlorrzeys,for Appellee

-24-

THIRD DIVISION

ANDREWS, P. J.,

DILLARD and MCMILLIAN, JJ.

NOTICE: Motions for reconsideration must be

physically received in our clerk's office within ten

days of the date of decision to be deemed timely filed.

http:l/www.g aappeals.us/rules!

March 28, 2014

In the Court of Appeals of Georgia

A13A2223. NINES v. RAILSERVE, INC.

DILLARll, ,TACI~C.

Iii this civil tort action, Colby Hines sued his employer, Railseive, Inc., alleging

that the company is liable for the serious brain injury he suffered when a potato

caution, constructed by several of his co-workers on company premises, exploded

dus~ing an attempt to fire it. Following discovery, Railseive moved for suimnary

judgment, which the trial court granted. Ou appeal, Hines argtiies that the t~•ial com-C

erred in gt~anting sunn77ary judgment because genuine issues of fact remain as to

whether Railserve is liable under the theories of res~ondeat superior, Section 317

of the Restatement (Second) of Toits, and negligent supervision. For the reasons set

EGli,s a bugle, 306 Ga. A.~p. 674, 675 (703 SE2d 104) (2010) (noting that

summary adjudication is onlyproperwhen "thet-e is no genuine issue of material fact

and tlic movaut is entitled. to judgment as a mater of law."); see OCGA § 9-17 -56 (c).

forth dnfr•a, we a~•ee that the trial court erred in granting suimnary judgment, and,

therefore, reverse.

Viewed in the light most favorable to the nonmovant,~ the record shows that

in September 2U 10, Hines was employed by Amerih-ack, a division of Railserve, and

specifically worked as a member of a railroad track nlstallation and maintenance crew

that operaeed out of Ameritracic's facility (the "yard") in El Dorado, Kansas. At

arround 5:00 p.m. on September 14, 2010, Hincs's crew—which included supervisor

DeWayne Taylor end several other employees—fiuislied its off-site track work for

the day and returned. to the yard. And upon Cheir return, DeWayne Taylor, Hines, and

several other members of the crew went to the machine shop located near the back of

the yard to visit with Tim Taylor, DeWayne's brother and the shop's foreman, and

some of the other shop mechanics—all of whoz77 were still on the clock. There, some

of the crew members began driY~lcing beer that tl~cy had brought with them.

At around 6:15 p.m., Jeff Heisen, the branch manager of the facility, stopped

by the shop ou his way out and spoke with the grotiip gathered there. Ai1d although

Heinen noticed that some of the employees were drinking beer, he did not ask anyone

to stop drinking or direct those no longer on the clock. to leave. However, shortly after

2 Ellis, 306 Ga. App. at 675.

2

leaving, Heisen called Brandon Dawson, another shop foreman wlio had been

socializing with the Taylors and Hines's crew at the dine Heisen left, aild told him to

make sure that all off duty employees left the yard. But Dawson did not relay this

request, and the crew rei7~aii~cd on the premises.

Then, sometime around 7:00 p.m., a few of the shop mechanics and

i~~aiutenaiice crew retrieved a potato cannon that they had built a few days earlier

using Railserve ~,naterials (and which had been stored in the shop). After placing the

cannon on Cop of a hailer just outside of the shop, everyone in the group—including

Hines—began loolcuig for i7laterials to fire, and the cannon ultiillately was packed.

with gunpowder acid pieces oflnetal. DeWayne Taylorthen lit the carrion's fuse with

a sparkler, at which point he and the rest of the group, other than Hines, took cover

inside the shop. l»deed, t-ather than joining the retreat to cover•, Hines climbed up a

nearby fue escape and began recording flee event with the video-recorder on his smart

phone. But instead of firing its projectiles, the cannon exploded, and a piece of the

resulting slu•apnel struck Hines in the Bead, severely injuring him.

3

Thereafter, Hines filed a lawsuit against Railserve in the State Court of Clayton

Counry,3 alleging that Railserve was Iiable for Isis injuries under theories of

respondeczt su~~e~•io~^, § 317 of the Restatement (Second) of Torts, and negligent

supervision. Railseive answered and', following discovery, filed a motion for

summary judgment, arguing that all of Hines's theories of recovery failed as a matter

of law. A»d after Hines responded, the trial court held a hearing on the ivatter, and,

applying Kansas law,' it granted summary judgment ii1 favor of Railserve as to ali o£

Hines's claims. This appeal follows.

1. Hines first contends that the tt-ial court er~•ed in granting swilmaryjudgiuent,

arguing that genuine issues o£inaterial fact remain as to whether Railservc is liable

under the theory of i~espo~icleat su~eNi.or. We agree.

Under Kansas law, the phrase "imputed negligence" or "respondeat,rupe~~ior"

refers to the doctrine which places upon one individual responsibility for the

Hines's complaint states that Railserve's principal place ofbusiness is located

in Clayton County, Georgia, and Railserve has not contested jurisdiction or venue.

' Although this suit was filed iu Georgia, the parties agreed and the trial court

properly held fllat Kansas substantive law as to liability applies pursuant to "lex loci

delvcti," which remains fhe choice o£law rule in Georgia. See Dowrs v. Mud Stingers,

Inc., 279 Ga. 808, 816 (621 SE2d 413) (2005). Under "this traditional rule, a tort

action is governed by the substanCive law of the state where the tort was committed."

Id. at 809.

4

negligence of anothcr.~ Specifically, tl~e doctrine oP respon~deat superior wakes an

employer responsible for the negligent actioi7s of its employees, but only for acts that

are for the purpose of the employer's business or acts that arE within the scope of the

employer's authority.6 And au employee acts within the scope of employment if "he

or she perfarn~s services for which he or she has Ueei~ employed or does anything

reasonably incidEntal to the employment."' In fact, the test is not necessarily whether

the specific conduct was expressly authorized or forbidden by the employer, "Uut

whether such conduct shotiild have been fairly foreseen from the nature of the

eulployment and the duties relating to it.""

In granting Railserve's motion for summary judgment, t1~e trial court

aclnlowledged that there was evidence that Tim Taylor and Brandon Dawson had

supervisory respo~~,sibilities at the Anzeritrack yard and that both lrnew about the

potato cannon. Additionally, there was evidence that Heiser—who lead supervisory

s Brillharty. Scheief~, 758 P2d 219, 221 (ICan.19$8); accordSclinaidty. Martin,

510 P2d 1244, 1246 (K~u. 1973).

~ Br illhart, 758 P2d at 221.

Przr~gue v. Monle~~, 28 Pad 1046, 1050 (Kan. App. 2001).

"Id. (punctuation omitted).

5

authority over all employees at the yard—directed Dawson to have off-tl~e-clock

employees leave the yard. Nevertheless, the trial court ruled that Hines's respo~ideat-

superior claim failed as a natter o£ Law because neither Tiin Taylor nor Dawson, as

agents of Railserve, had ~ duty to prevent Hines from being harmed. However,

cont~~aiy to the trial court's assertion, the rule in Kansas is simply that "an employer

has the duty not to expose his employees to perils which the employer inay guard

against by the exercise of reasonable care."9 And here, there are certainly genuine

issues of material fact as to whether both Tim Taylor and Dawson breached that dLity

by failing to direct off-the-clock employees, including Hines, to stop drinking beer,

to stop attempting to detonate a dangerous explosive device, and to leave the

premises. Accordingly, the trial court erred in granfii~g summary judgn7ent to

Railseive as to Hines's r•e,spondeat-sL~perior claim. "'

~ S»aet~h v. Massey-Fergi~~son, hzc., 883 P2d 1720, 1134 (ICan. 1994); see also

Riggs v. Missouri-Kaiasas-Texas R. Co., 508 P2d 850, 854 (Kau. 1973) (saii7e);

Wrinl~le v. Norrr~.a~n, 301 Pad 312, 313 (Kan. 2013) ("A landowner's duty to both

invitees and licensees is one of reasonable care under all the circumstai7ces.").

10 See Sinitd2, 883 P2d at 1134-35 (holding that both employer and supervising

co-employee of injured plainCiff owed duty to provide a safe workplace).

2

2. Hines also contends ghat the trial count erred. in ~ranfiug summary judgmeizt

because genuine issues of material fact remain as to whether Railserve is liable

pursuant to § 317 of the Restatement (Second) of Torts. Again, we agree.

The Restatement (Second) of Torts § 317, titled tl~e "Duty of Master to Control

Conduct of Servant," provides as follows:

A master is under a duty to exercise reasonable care so to control his

servant while acting outside the scope of his employmei7t as to prevent

him from intentionally harn7ing others or from so col~ducting hiiilself as

to create arz unreasonable risk of bodily harm to diem, if

(a) the servant

(i) is upon tlieprernises in possession o£the master oi° npon which

the serva~~t is privileged to enter only as his servant, or

(ii) is ususg a chattel of the master, and

(b) the master

(i) knows or has reason to know that he has the ability to control

his servant, and(ii) knows or should lrnow of the necessity and opportunity

for exercising such control."

" Restatement (Second) of Torts § 317 (1965).

7

Tn summary, § 317 recogluzes that "the `specill relationship' of employer and

employee imposes a duty on the employer to exercise colztrol over the employee

acting ouTside the scope of einploymerlt under Irmited circuinstauces."'~

Iu the case sub judzce, the trial court acknowledged that employees of

Railseive, who had supeivisoryresponsibilifies, were awat~e of the potato cannon and

t1~aC off-duty employees were drinking beer at the shop shortly before the accident.

But dle trial court concluded that Hines's claim failed as a 11~atter of law because it

held that § 317 of the Restatement does not render an employer liable for its

employee's negligence when t1~e resulting iujuiy is to another employee. Specifically,

the hial court held that "[t]he plain language [of § 317] connotes that Plaintiff cannot

be both a ̀servant' and an ̀ other' firom whom the master is under a duty to project"

and contemplates no duty for the master to protect servants fiom their owii negligent

acts.

We are not persuaded that the trial. court's strained reading of § 317 is required

by its "plain IangL~age."The term "other" is defined as "that one of two which remains

'~ Meyers v. Gr^ubaugh, 750 P2d 1031, 1034 (Ian. 1988).

after one is taken, defined, or specified; the rei~~aining of two."" But contrary to the

trial court's assertion, the use of the Fenn "other" in Ule context of this section is

merely used to distinguish all remaining persons, i.e., those that could suffer flee harm

fiom the servant responsible for causing the harm. Indeed, "others" is the simplest

and plainest term the drafters of § 317 could possibly use to draw suer a distuiction.

Additionally, the trial court's assertion that a plaintiff camiot recover under § 317

when he eoi~Cributes to his own harm is simply not supported by any of the lailgua~;e

contained in that section ofthe Restatement. Thus, we do notagree thatHines's status

as a servaast precludes hii17 fi•om being au "other" under § 317.

Further, the trial court's reading of the Restatement (Second) of Torts § 317 is

inconsistent with the Restatement (Second) of Agency § 213 (d), which is to Ue read

in conjtimction with § 317," aid which provides as follows:

13 The Compact Oxford English Dictionary 1231 (2d ed. 1991.). Cf. OCGA

1-3-1 (b) ("In all inteipreCations of statutes, the ordniary signification shall be applied

to all words ...:'); Al~r~on Pest Co~atroZ v. Radar Ext~i~~yainating Co., 216 Ga. App.

495, 497 (1) (455 SE2d 601) (1995) (noting that courts may tuns to a dictionary for

t11e plain, ordillaiy, aald popular sense of a word in itiYeipreting contacts).

14 See Restatement (Second) of Agency § 213 emt. a (1958) ("The rule stated

in this Section is not based upon any rule of the law of principal aild agent or of

inaseer and servint. It is a special application of the general rules stated in the

Restatement of Torts and is noC intended to exhaust the ways in which a master or

other principal inay be negligent in the conduct of his business.").

9

A person conducting au activity through servants or other agents is

subject to liability forl~lrmresulting from his conduct if he is negligent

or reckless:... in permitting, or failing to prevent, negligent or oYl~er

tortious conduct by persons, whether or not his servants or agents, upon

premises or with instrui7ientalities under his coiit~•ol.'s

In fact, Coimnent b to § 213 further pt~ovides that "[t]he rule stated in this Section

applies ko the liability of the mastet~ to his servants, the master being subject to

liability to thei7l for his owil negligence, even d~ougl~ Che act immediately causing Che

harm is that of a fellow servant for whose negligence to them the master° is not

liable."`~ Accordingly, even if the language of § 317 could possibly be construed as

a~n.biguous on this particular point, it becomes rnauifestly clear, wheal read in

conjunction with the Restateineut (Second) of Agency § 213, that the use of the berm

"other" in § 317 includes fellow servants such as Hines.

Moreover, although there does not appear to be any Kansas law specifically

discussing whether § 317 in7parts a duty upon an employer to protect one employee

from being harmed by a~iother employee, cases from other jurisdictions have, in fact,

's Id. § 213 (d) (1958).

'~ See id. 213 (d) cmt. b.

10

acknowledged such a duty." Given these circuinsta»ces, we conclude that the trial

court erred in ~,n~arlCing summary jud~ne~lt in favor of Railserve as to Hines's § 317

claim.

3. Hines further contends that the trial court en~ed in granting summary

judgment because genuine issues of material fact remain as to whether Railserve is

liable under the theory of negligent stiipervision. Once again, we agree.

" See Mullen. v. Topper's Salon &Health Spa, bac., 99 FSupp2d 553, 556-~7

(~.D. Pa. 2000) (noting that in Pennsylvania, an employer maybe liable pursuant to

the Restatement (Second) o£Torts § 317 when employer failed to exercise ordinary

care to prevent hat~m to an employee Uy another employee acting outside Che scope

of his employment and occurring on the cinployer's premises); Marady a Mi~~s~.erota

Mining & Manufa~ctu~~zrag, 940 FSupp. 1463, 1471 (II) (D. Minn. 1996) (holding that

pursuant to Minnesota law, § 317 was applicable fo hold employer liable when one

employee, acting outside the scope of leis employment but on employer's prenuses,

harassed another employee);Platroia v. NSM, Am., Inc., 748 N~2d 1278, 1285-86 (Ill.

App. Ct. 2001) (holding that company irlteril who was allegedly assaulted Uy

company employee sCated aproper claim under Restatement(Second) of Torts § 317);

Kerans v. Porte~~ PafiT~t Co., 575 NE2d 428, 432-33 (Ohio 1991,) (holding that under

Restatement (Second) of Torts § 317, ~1 employer maybe liable for one employee's

workplace sexual harassineilt of another employee); see also Favor^s v. Alco Mfg.,

Co., 186 Ga. App. 480, 483 (3) (367 S~2d 328) (1988) (holding that "[a] cause of

action for negligence against au employer may be stated if tl~e erllployer, in the

exercise of reasonable care, should have known of an employee's reputation for

sexual harassment and that it was foreseeable that the employee would engage iii

sexual harassment of a fellow employee but he was continued in his employment"

(punctuation omitted)).

11.

Under Kansas Iaw, negligent supervision is a recognized cause of action, ai d

its Focus is upon the actions of someone other than the person whose negligence

caused the injuiy.'8 Specifically, negligent supervision includes not only the duty to

supervise, "but also uicludes the duty to conh•ol persons with whom the defenc1ant has

a special relationship including the defendant's employees or persons with dangerous

propensities."'`' Indeed, liability under anegligent-supervision claim results not

because of the employer-employee relationship, butbecause the employer had reason

to believe that an undue risk of harm to others would exist as a result of the

employment of the alleged t~rtfeasor.'0 Fw•thermore, and wllike many other

jurisdictions, negligent supervision in Kansas is a tort separate and distinct from

respotadeat su~erio~~ in that liability is i~ot ii77puted btit instead runs directly from the

employer to the person ii~jured.21

'~ Ma~~quis v. State Farr~aFu~e c~ Cas. Co., 961 P2d 1213, 1222 (Kan. 1998).

's Id. at 1223; see Nero v. Kczn~. State Univ., 861 P2d 768, 772-73 (Kan. 1993).

20 Kansas State Banlz & Ti^ust Co. v. S~ecializecl Transp. Svcs., Inc., 819 P2d

587, 598 (Kan. 1991).

~' Marquis, 961 P2d at 1225.

12

And iu this matter, the trial court coucluciedthat Hines'snegligent-supervision

claim failed as a matter of law based on its finding that there was no evidence that

Railserve should have foreseen that DeWayne Taylor had a propcnsiry for creating

and detonating explosives and, citing Sehnatdt v. HTG, Lac.,'- based on its finding that

the employees who detonated the caunou were off-duty at the tune of the incident.

But it is not necessary that "the precise natL~re o£the injury alleged by the third-party

plaintiff would. have been foreseen by the en~ployer.i23 And furthermore, whether risk

of harm is reasonably foreseeable is "1 question to be determined by the trier of

fact."~" Here, contrary to the trial eotiirt's assertions, there was evidence that two

Railseive supervisors, Tim Taylor and Brandon Dawson, were on duty at the time

Hines was injiued and were very much aware of both Y11e eonstx~uction of the potato

cannon and of flee fact Chat DeWayne Taylor and other meulbeis of tl~e off-duty

maintenance crew inte~.ided to fire it at the time they did so. Accordingly, genuii7e

~~ 961 P2d 677, 695 (Kau. 1998) (holding thae in Kansas liability of tl~e

employer for negligent supervision is predicated on the actions against the customer

or co-worker occurring on the working premises and during the einie employment

services were normally rendered).

'3 Kan. State Banlc & TT~ust Co., 819 P2d at 598.

za Id.

13

issues of material fact precluded a grant of summary jLidgment on those grounds

asserted by the trial eouit.25

Finally, the trial court also supported its decision to grant summary judgn7ent

as to Hiaes's negligent-supervision claim by adopting the holding of Bew.rn v.

Concord Hospitality, Ir2c. ~~ There, the United States District Coti~rt in Kansas, relying

on the SLipreme Court of Kansas's opinion in Balin v. Lysle Rishel Post No. 68,27

concluded that Kansas does not recognize the torts ofi~egligent retention or negligent

supervisior7 in instances when the plaintiff is an employee alleging tortious conduct

by another employee ~R But iu Ba~lin, the gnestiou of whether the plaintiff'was also an

employee of the defendant hotel was disputed.2`' And given this dispute, the Supreme

~s Co»ipare id. at 59~-99 (holding that genuine issues o£material fact existed

as to whether defendant should have foreseen that an employee posed a danger to a

plaintiff/student, who the employee sexually assaulted, and, thus, summary judgment

as to ptaintiffls negligent retention and supervision claim was not warranted), with

Schr~aic~t, 961 P2d at 694-96 (holding that stimuiary judgment in favor of

defendantJemployer was properly granted given that employee's sexual assaulC and

murder offormer co-employee occurred well after employee's work hours and did not

occur on employer's premises).

~` 920 FSupp. 1165 (D. Kan. 1996).

~' 280 P2d 623 (Kan. 1955).

~K See Beane 920 FSupp. at 1167-68.

~v 280 P2d of 630.

14

Court of K2nsas ruled that if the plaintiff was noC an en~loyee, his negligent-

retention claim failed Uecause "tl~e evidence now under consideration does not show

that the master corporation hired an incompetent or unfit servant or employee, or that

it retained him in employment after it knew or should have known of his

incompetence orunfitness—it does not even show the servant incompetent or uil~t.i30

The Court then further ruled That if plaintiff was an eiuployee, his claim still failed

Uecause

the act of. shooting which caused plaintiff's injw•ies was not authorized

by the master corporation or was not done by its servant a~1d [fellow

employee] to advance its interests, and in such circumstances the rule is

that the master corporation is not liable in damages to oile servant for

injuries inflicted on him by the act of his fellow servant 31

Focusing on this secondpart of the Balin. analysis, the district courC iu Beam reasoned

that "it appears that the Supreme Court of Kansas recognized a distinction between

Chird parties and employees and concluded that only third parties could seek recovery

ui7der a theory of negligent retention.i32 In doing so, however, the district court

30 Id.

'~ Id.

32 920 FSup~. at 1168,

15

seemingly failed to recognize that the latter part of the Bali~z opinion regarding the

fellow-servant rule is no longer applicable within the context of negligent firing,

retention, or supervision claims irllight of the fact that "[1]iability exists under either

of these doctrines ...despite the fact the direct cause of injury to the nljured person

is the negligent or intentional acts of an employee acting outside the scope of his

employment."33 Moreover, the legitimacy of Galin as persuasive authority in this

regard is also rendered suspect by the fact that it conflates the doctrines of negligent

retention aild res~o~zdeat szcpe~~ior—an anachronistic analysis given that those two

torts are separate and distinct claiuls under Kansas 1aw.34

Nevertheless, but importantly, it does not appear that the state courts of Kansas

have followed the Beam. decision, aild as such, we are not bound by it. Furthermare,

the Beai~~ opinion stands in stark conCrast to tl~e Eighth CucuiYs opinion iii Perlcdrzs

v. S~ivey,35 which held that "[a] cause of action does exist under Kansas common law

" plains Res., bz-c. v. Gable, 682 P2d 653, 662 (Kan. 1984).

34 See Ma~•guis, 961 P2d at '.1.225 (noting that the torts of negligent hiring,

retention, or supervision are recognized in Kansas as separate torts that are not

derivative of the employee's negligence).

'~ 911 F2d 22 (8th Cir. 1990). We recognize that the dist~•ict court in Beam.

considered Pe~~kirzs but found. it unpersuasive, See Beam, 920 FSupp. at 1 ] 67.

16

when en7ployers negligently Dire or retain ein~loyees they know or should know are

incompetent or dangerous when another employee is physically injured by the

dangerous employee or is emotionally harmed such that imil~ediate physical injury is

tl~e result."36 Finally, and as the dist~~ict court recognized in the Beam opinion," the

general language of Supt~eme Court of Kansas's decision in Kar2sas State Ba~~7c &

Trust Co. can be read as not precluding an employee's negligent-supervision claim

against an em~loyerbased on the tortious conductby a fellow einployce.'~ And given

all of these circumstances, we decline to rests ict such claims in a u7anner that the state

courts of Kansas 1~ave yet to adope. Accordingly, we conclude that the trial court

3`' Perlitns, 911 F2d at 30 (II) (A).

;' See 920 FSupp. at 1165 (noting that the general language of the Supreme

Court of Kansas's decision in Ka~~sas State Bata/c &Trust Co. "could be read as

supportive o£ the plaintiff's position").

38 See Kan. State Banlz & Ts-ust Co., 819 P2d at 598 (noting that liability wilder

a negligent-supervision claim results not because of the employer-employee

relationship, but because the employer had reason to believe t1~at au undue risk of

harm to others would exist as a result of the employment of flee alleged tortfeasor);

see also Schmidt, 961 P2d at 695 (holding that in ICa~lsas liability of the employer for

negligent supervision is predicated oil the actions against the customer or co-wor/cep°

occurring on the worlculg premises and. during the time em~ployivent services were

normally rendered).

17

likewise erred ii1 granting suilunai°y judgment in favor of Railserve as to Hines's

negligent-supervision claim, and we reverse that decision.

Judg~n.e~at reversed. McMillia~i, J., concrars. Andrews, P. J., concurs specially.

[F

A13A2223. NINES v. RAILSERVE, INC.

ArtnRCws, Presiding Judge, concurring specially.

Colby Hines sued his former employer, Railserve, Inc., a Georgia corporation,

for damages (including punitive damages) as a result of severe injuries he suffered

when, as silted in his complaint, "[a] pi~~e boillb conshucted with the lalowledge and

participation of employees of Railse~ve who were in the course and scope of

employnleut of Railserve at the tune, exploded scattering shrapnel and sending a

shard into and through [his] skull...." Hines stated in his complaint—and the record

clearly shows —that the pipe bomU exploded on the Railserve premises located in El

Dorado, Kansas on Septerliber 14, 2010, shortly after Hiiles had finished leis work

day. Hines omitted fi~omhis complaint—but t11erecord cicarlyshows —the following:

Hines was aware of the existence of the pipe bomb (made fi-otn a metal pipe about

three feet long and several inches in diameter) before it exploded. Hines and other

Railseive employees a~1d supervisors (some sti11 workiugand othet-s finished working

far the day) knowingly participated ii1 "hoi°seplay" with tl~e pipe bomb as they loaded

it with a metal object and explosive powder. Some of'the group, including Hines,

were drinking beer at the time. Hines placed the metal object in the pipe bomb. Hines

handed the fuse to light the pipe bomb to one of his co-workers and watched as the

co-worker lit the fuse on the bomb. Unlike his co-workers, who ran fbr cover Uefore

the pipe bomb exploded, Hines climbed up a nearby fire escape abotiit 15 feet above

the pipe bomb whet°e he knowingly exposed himself to the explosion while

attempting to video the explosion with his ilzobile smartphone for his own

entertainment. After the pipe bomb exploded, co-workers found Hines on the fire

escape with a large hole in his head caused by flying shrapnel from the bomU.'

' Hines ad~nitteci that he had no memory of the events surrounding the

explosion. Nevertheless, he testified in his deposition that he did not load the pipe

bomb or help light the fuse "[b]ecause I wouldn't do that." In the face of eyewitness

testiinoi~y that Hines did, in fact, do (hose things, Hiues's unsupported belief or

opinion to the conhary was speculation wiChout probative value. Hassell v. First Nat.

Ba~a7c &c., 218 Ga. App. 231, 234 (461 SE2d 245) (1995); Whiteside v. Declrer,

Halln~a~2, Ba~~be~- &Briggs, P.C., 310 Ga. App. 16, 19 (712 S~2d 87) (2011).

2

Despite these facts, I nevertheless agree with flee majority opinion that fhe t~•ial

court erred by granting suu~maryjudgment to Railserve on Hines's negligence causes

of action on the limiCed grounds asserted ii1 the motion for summary judgment.

Hines's complaint alleged in three causes of action thatRailserve's uegligencecaused

his injuries: (1) thatRailserve employees negligently failed to stop the horseplay with

the pipe borlib, and. their negligence was imputed to Railserve under the doctruie of

respondent superior; (2) that Railserve was directly liable for- its neglige~lt failure to

stop the horseplay under principles set forth in Restatement (Second) of Torts, § 317

imposing a duty to control employees on its premises acting outside the scope of

en~ploymeut; and (3) that Railserve was directly liable for negligent failure to

supervise employees involved in tl~e horseplay. 1 concur with the majority opinion

that Railseive was not entitled under applicable Kansas substantive law to summary

judgment just because Hines was a co-worker who was negligent in any degree, or

justUecause some of the horseplay at issue occurred outside the scope of employment

and involved negligent acts by other co-workers.

But given the facts showing that Hincs knowingly participated in horseplay

with the pipe bomb, loaded it with metal, helped light the fuse, and recklessly

exposed himself to the exploding bomb, I cannot concur in tl~e majority opinion

3

without stating my view th1t, under applicable Kansas law, Hines's actions were the

sole proximate cause of his own injuries. Udder the facts and law, Hines has no

business collecting a pickle in damages from Railseive, or putting Railserve to the

expense of a jtiiiy trial, despite any evidence that Railserve negligently supervised ies

premises.

Because the pipe bomb explosion and the injuries at issue occurred iii Kansas,

the majority opinion correctly finds that the Georgia rule of lex loci delicti requires

the application of Kansas substantive law to Hines's negligence claims against

Railserve. Dowir v. Mud Sldnger~s, Irac., 279 Ga. 808, 809 (621 SE2d 413) (2005);

Lloyd v. P~-uderalial Securities, bzc., 211 Ga. App. 247, 248 (438 SE2d 703) (1993).

Hines's negligence claims are governed by Kansas's comparative negligence statute

set forth in Kan. Stat. Ann. § 60-258a which regtiures comparison of the percentages

of Fault of all alleged wrongdoers.2 Under tl~e ICausas statute, Hines cannot recover

against Railserve on his negligence claims if lie is found to be 50 percent or snore at

fault. Mar^tell v. Drzscoll, 302 Pad 375, 383 (Kan. 2013);Negleyv. Massey Fey°guso~i,

Ifac., 625 P2d 472, 477 (ICan. 1981). Although determining tl~e aulounC of

Z Based on its adoption. of a statutory sclleine of comparative negligence,

Kansas has abolished common law assumption of the risk as a bar to recovery.

Siinn~ons v. Porter, 312 Pad 345, 355 (I an. 2013).

0

comparative fault atCribueable to negligent pasties is treated in Kansas as a question

of fact, "there is an exception to treating comparative fault as a fact question."

Martell, 302 Pad at 385-386. Proof that the defendant's negligence was a proximate

cause of the alleged harm is an essential element of the plaintiff's claim and is

ordinal-ily a question of fact. Hale v.13~rown, 197 Pad 438, 440-441 (K~n. 2008). But

where undisputed flcts susceptible of only one inference show as a matter of law that

the plaintiff's owu negligence was an intervening cause which superceded the

defendant's negligence, the plaintiff's negligence breaks the causal connection

between the defendant's negligence and the plaintiff's harm and operates as the sole

proximate cause of the harm. Martell, 302 Pad at 386; Puclzett v. Mt. Cm°rnel

Regr.o~aalMedicc~l Centef~, 228 Pad 1048, 1060-1061 (ICan. 2010); Hale, 197 Pad a~

441. In that case, the plaintiff's intervening cause absolves the defendant of. liability

for admitted negligence and there is no apportionment of comparative fault. Puc%ett,

228 Pad at 1061.

The undisputed facts in this case show as a matter of law Chat Haies's

recldessly iiegligeut actions were an intervening cause which operated as the sole

proximate cause of his injuries and absolved Railseive of any liability for its alleged

5

negligence. I concur specially oily because Railserve failed to assert this defense on

summary judginent.3

~ In its answer to Hines's coinplault, Railserve asserted the defense that any

alleged negligence o~i its part was not a proximate cause of Hiues's injuries.

6

CERT~ITICATE OI+ SERVICE

This is to cet-tify that l lave this day served a true and co~reet copy of Che

within and foregoing 'Petitio» for• Writ of Cereiorari on opposing counsel by

maili~~~ a copy of same iu the U.S. mail, properly addressed as follows:

Cale Conley, Esq.Richard A. Griggs, Esq.CoNLEY Gai~~s Pa~i7~~N, LLPThe Hardin Building1380 West Paces Ferry Rd., N.W., Suiee2100Atlanta, Georgia 30327

Brantley W. White, Esc.Srco, Wx[Tr, HorLscHrR & BRavc~~,

LLP900 Frost Banl< Plaza802 N. CarancahuaCorpus ChrisCi, TX 78470

This 15°i day of April, 2014.

Michael B. Terry, Gsq.Robert L. Asl~e III, Esc.BONDURANT, M[XSON & ELMORC, LLP

3900 OX1e Atlantic Center1201 West Peachtree StreeC, N.W.Atlanta, Georgia 30309-3417

/s/Robert P. Ma~•covitchRobert P. MarcovitchGeorgia Bar No. 469979