MELTON, Chief Justice.
These cases arise from a car accident that occurred after Byron Perry stole a sport utility vehicle (SUV) from a rental lot where he worked and later crashed into Brianna Johnson and Adrienne Smith while Perry was trying to evade police. Johnson and Smith ("plaintiffs") each filed a lawsuit alleging claims of negligence and vicarious liability against the rental car company, Avis Rent A Car System, LLC and Avis Budget Group (collectively "Avis"), along with Avis's regional security manager, Peter Duca, Jr.; the rental location's operator, CSYG, Inc.; and CSYG's owner, Yonas Gebremichael. Johnson and Smith also sued Perry, the CSYG employee who stole the SUV involved in the accident, although Johnson dismissed Perry before trial.
Separate juries found that Johnson and Smith were entitled to recover damages, but both jury verdicts were reversed on appeal. In Avis Rent A Car Sys., LLC v. Johnson, 352 Ga. App. 858 (836 SE2d 114) (2019), the Court of Appeals concluded that Avis - the only entity found liable for compensatory damages in Johnson's case - was entitled to judgment notwithstanding the jury's verdict (JNOV) on Johnson's direct negligence claims because Perry's intervening criminal conduct was the proximate cause of Johnson's injuries. See id. at 863 (2) (b). And in Avis Rent a Car Sys., LLC v. Smith, 353 Ga. App. 24 (836 SE2d 100) (2019), in addition to concluding that any breach of duty to secure the car rental lot and the stolen SUV was not the proximate cause of Smith's injuries (due to Perry's intervening criminal conduct), the Court of Appeals also concluded that CSYG and Gebremichael were entitled to a directed verdict on Smith's claims that they negligently hired and retained Perry, because Perry was not acting "under color of employment" at the time that he collided with Smith. Id. at 25 (2) and 29-30 (5).
In Johnson's case, the jury found that Avis was 100% at fault for Johnson's injuries and that Johnson was entitled to recover $7 million in damages from Avis. The jury found that CSYG, Gebremichael, and Duca were 0% at fault, and further found that Perry was 0% at fault as a non-party, but also found that Perry was liable for punitive damages. In Smith's case, the jury returned a $47 million verdict in favor of Smith, apportioned 50% to Avis, 1% to Duca, 15% to CSYG, 1% to Gebremichael, 33% to Perry, and 0% to "N.O." (a non-party who Perry claimed was actually driving the stolen SUV).
In connection with the incident, Perry pled guilty to two counts of serious injury by vehicle (OCGA § 40-6-394), two counts of hit and run resulting in serious injury (OCGA § 40-6-270), one count of reckless driving (OCGA § 40-6-390), one count of fleeing and attempting to elude police (OCGA § 40-6-395), one count of failure to maintain lane (OCGA § 40-6-48), and one count of felony theft by taking (OCGA § 16-8-2), and was sentenced to 20 years to serve in prison.
The Court of Appeals also concluded that Avis was entitled to JNOV on Johnson's claims that Avis was vicariously liable for CSYG and Gebremichael's negligence, including the negligent hiring and retention of Perry, because the verdicts in favor of CSYG and Gebremichael eliminated any basis for holding Avis liable through a theory of respondeat superior. See Johnson, supra, 352 Ga. App. at 864-865 (3).
Johnson and Smith petitioned for certiorari review in this Court, and we granted their petitions to address the following questions: (1) Did the Court of Appeals err in Divisions 2 of the opinions below in determining that the employee's intervening criminal conduct was the proximate cause of the plaintiffs' injuries, such that the defendants were entitled to judgment as a matter of law on the plaintiffs' direct negligence claims? and (2) Did the Court of Appeals err in Division 5 of the Smith opinion in determining that the defendants were entitled to a directed verdict on Smith's negligent hiring and retention claim, because their employee was not acting "under color of employment" when he collided with Smith? For the reasons that follow, we determine that the Court of Appeals correctly concluded that the defendants could not be held liable to Johnson and Smith as a matter of law under the facts of these cases. Accordingly, we affirm in both cases. However, we reject some of the Court of Appeals' reasoning in the Smith case. Viewed in the light most favorable to Johnson and Smith, the evidence presented at both trials showed the following. Pursuant to an "Independent Operator Agreement" with Avis, CSYG was responsible for the day-to-day operations of an Avis car rental facility located on Courtland Street in Atlanta. In March of 2012, Gebremichael hired Perry on behalf of CSYG to wash and refuel cars at the facility. At the time that Perry was hired, he disclosed to Gebremichael that he had been in prison, but he did not reveal the extent of his criminal record, and Gebremichael did not conduct a criminal background check to discover the extent of Perry's record.
See, e.g., Pendley v. Pendley, 251 Ga. 30, 30 (1) (302 SE2d 554) (1983) ("The standard for granting a directed verdict or a judgment notwithstanding the verdict [is] the same. Where there is no conflict in the evidence as to any material issue, and the evidence introduced, with all reasonable deductions therefrom, shall demand a particular verdict, such verdict shall be directed.")
A criminal background check would have revealed that Perry's criminal record included arrests and convictions for, among other things, driving on a suspended license, DUI and drug-related offenses, and theft by receiving a stolen pickup truck in 1999 that involved reckless driving and an attempt by Perry to elude police.
On the evening of August 23, 2013, Perry stole a Ford Edge SUV from the Courtland Street rental location after the facility was closed for the day. Perry wore an Avis shirt while he drove the stolen SUV to provide an exc automobile involved in a collision may not be made the basis for holding an owner liable for the negligent operation of the automobile without showing that the defendant owner was guilty of some other negligent act which proximately contributed to the plaintiff's injury. . . . The fact that the keys were left in the unguarded automobile would not authorize a recovery against the owner for the injuries which were the result of its subsequent negligent operation by a thief. The persons immediately responsible will be held to full liability; but persons only so remotely connected with the injury can not be held [liable].
Dunham, 172 Ga. App. at 393 (2) (citations and punctuation omitted). In that case, a driver parked on the street in front of her babysitter's home, left the keys in the ignition, and then was detained inside the babysitter's home for several minutes while her child was readied for departure. Id. at 391-392. In those few minutes, a stranger took the car on a joyride, resulting in the plaintiff's injuries. Id. Similarly, in Price, a stranger stole a pickup truck parked on a street "virtually immediately after [the driver] had exited it." Price, 191 Ga. App. at 534. The Court of Appeals quoted the above passage from Dunham in affirming the dismissal of the plaintiff's claim. Price, 191 Ga. App. at 534. In Long, a driver parked his truck "near a county work farm" and left it unattended and with the keys in it. Long, 219 Ga. App. at 854-855 (1). A prisoner escaped from a work detail in the area, stole the truck, and wrecked with the plaintiffs' vehicle. Id. at 853-854. The Court of Appeals affirmed the grant of summary judgment in favor of the defendant based on the reasoning in Dunham quoted above. Long, 219 Ga. App. at 855 (1). And, in Giles, where a car dealership was allegedly negligent in leaving keys to a car "in a place accessible to [a] 15-year-old" youth, who stole the car and wrecked with the plaintiff's vehicle, the Court of Appeals relied on the Dunham reasoning to hold that alleging "only that [the owner] was negligent in permitting [its] car to be stolen" fails to state a claim upon which relief can be granted. Giles, 194 Ga. App. at 472.
Although the cases referenced in Johnson, like the cases now at issue, each involved a car thief who wrecked the stolen car and injured someone, there are significant dissimilarities between those cases and the instant cases. In the instant cases, unlike the opportunistic thieves in the cases referenced in Johnson, Perry, as an employee, had time to plan his crime. The jurors heard evidence that Avis's business practices, including the two-key system for the majority of its fleet, allowed employees like Perry to surreptitiously possess a key to a fleet car after business hours; to obtain a key to the facility's security gate; and to access the facility after hours. And Perry had the opportunity to learn that, because of Avis's business practices, the theft of a car key from a two-key set would not be detected; the security gate lock would not be replaced after two managers' gate keys were reported missing; and no security cameras would be present to record his illicit activities. The juries heard evidence that Avis knew that the theft of fleet cars, including by Avis's employees, was a recurrent problem and that it needed to change its business practices to prevent such thefts - but failed to make the necessary corrections. Although only a relatively small number of stolen Avis cars may have been involved in "high-speed police chases," as the majority notes, a reasonable jury could find that Avis could reasonably anticipate that a person willing to steal a car would drive the stolen car in a manner representing a risk of serious harm to others in the thief's path, whether from a high-speed police chase or otherwise. Reasonable jurors could find from the evidence presented that Avis reasonably should have foreseen that, as a result of its lax practices, an employee would steal a vehicle and then drive it in a manner that would cause injuries to others.
As the majority notes in fn. 9, slip op. at *7-8, supra, in addition to evidence regarding the high-speed police chase at issue in Hewitt, the jury received evidence that Avis knew that an employee stole a fleet vehicle and was chased by the police at 100 m.p.h. in April 2010; a thief used a stolen fleet vehicle in a commercial robbery and in a hit-and-run in April 2011; and that a stolen vehicle was used in a shooting in July 2013.
Even if all of the Court of Appeals' prior keys-left-in-an-unguarded-vehicle cases were correctly decided, which I doubt, I believe that the instant cases at the very least can be distinguished from that "venerable line of authority." At any rate, those Court of Appeals cases are not binding on this Court, and it is time to reaffirm the principle that, in Georgia tort law, the adjudication as a matter of law of questions of negligence and proximate cause is "an unusual circumstance." Robinson v. Kroger, 268 Ga. 735, 739 (1) (493 SE2d 403) (1997). Our courts must do more than pay lip service to the principle that proximate cause is "generally" or "ordinarily" for the jury while in practice making it commonplace to take the question of proximate cause away from a jury. See id.; see also Atlanta Obstetrics, 260 Ga. at 570. In two cases cited by the majority, Martin v. Six Flags Over Georgia II, 301 Ga. 323, 332 (II) (A) (801 SE2d 24) (2017), and Hewitt v. Avis Rent-A-Car System, 912 S2d 682, 686 (Fla. Dist. Ct. App. 2005), many case-specific circumstances informed the inquiry into whether the plaintiff's injuries were not merely possible but were reasonably foreseeable. Among many other cases, Martin and Hewitt illustrate why assessing foreseeability is generally reserved for a jury, and courts should not adjudicate proximate cause as a matter of law based on the single fact that a third party's criminal act brought to fruition the risk of harm seeded by the defendant's negligence.
The Court of Appeals first announced without qualification that "[t]he fact that the keys were left in the unguarded automobile would not authorize a recovery against the owner for the injuries which were the result of its subsequent negligent operation by a thief" in Dunham, 172 Ga. App. at 393 (2), citing Robinson v. Pollard, 131 Ga. App. 105 (205 SE2d 86) (1974), Chester v. Evans, 115 Ga. App. 46 (153 SE2d 583) (1967), and Roach v. Dozier, 97 Ga. App. 568 (103 SE2d 691) (1958). This statement is overbroad. None of those cases, or any other pre-Dunham cases I have found, support the premise that a car thief is as a matter of law the sole proximate cause of any injuries to others resulting from the thief's operation of the stolen vehicle. See Robinson, 131 Ga. App. at 105; Chester, 115 Ga. App. at 46; Roach, 97 Ga. App. at 568. Rather, the fact that keys were left in an unguarded vehicle alone does not authorize a recovery on a direct negligence claim against the owner for injuries that result from the subsequent negligent operation of the vehicle by a thief, joy-rider, or other unauthorized user. See Redd v. Brisbon, 113 Ga. App. 23, 26-27 (147 SE2d 15) (1966) (explaining that the effect of the ruling in Frankel v. Cone, 214 Ga. 733 (107 SE2d 819) (1959), which held that former Code Ann. § 68-301 (1955) was unconstitutional because it authorized a recovery without fault against an automobile's owner for damages resulting from the negligent operation of the vehicle by another "in the prosecution of the business of" the vehicle's owner, "was that mere ownership of an automobile involved in a collision may not be made the basis for holding an owner liable for the negligent operation of the automobile without showing that the defendant owner was guilty of some other negligent act which proximately contributed to the plaintiff's injury" (emphasis supplied)). Cf. Fielder v. Davison, 139 Ga. 509 (2) (77 SE 618) (2) (1913) (discussing the applicability of "the rules of law touching master and servant and the liability of the former for the act of the latter" to a claim against the owner of an automobile for damages on account of an injury caused by the vehicle while driven by his employee in the scope of his employment).
In some keys-left-in-an-unguarded-vehicle cases, even as the Court of Appeals affirmed judgment on the pleadings or summary judgment in favor of vehicle owners, the court recognized that an owner could be liable if prior similar incidents put the vehicle's owner on notice of a risk that the vehicle would be taken. See Butler v. Warren, 261 Ga. App. 375, 378 (2) (582 SE2d 530) (2003) ("[I]f an owner knows that, on previous occasions when the key remained in the car, an incompetent driver took it on joy rides, a jury could find the owner negligent in subsequently leaving the key in the vehicle." (punctuation and footnote omitted)); Roach, 97 Ga. App. at 571 ("We do not say that if an owner of a vehicle has actual knowledge that on previous occasions where he had left the key in a vehicle and the vehicle unattended, an incompetent driver had taken the vehicle on joy rides, a jury would not be authorized to find the owner negligent in subsequently leaving the keys in the vehicle and the vehicle unattended and accessible to the incompetent driver.").
See Preston v. Natl. Life & Acc. Ins. Co., 196 Ga. 217, 237 (26 SE2d 439) (1943) (Questions "as to negligence, proximate cause, and similar matters, should ordinarily be submitted to the jury; yet, . . . where the evidence as a whole excludes every reasonable inference but one, the court may so rule as a matter of law."); Bennett v. Dept. of Transp., 318 Ga. App. 369, 370 (734 SE2d 77) (2012) ("While the issue of proximate cause is generally a question of fact for the jury, it may be decided as a matter of law where the evidence is clear and leads to only one reasonable conclusion — that defendant's acts were not the proximate cause of the plaintiffs' injury." (citations and punctuation omitted)).
In addition to the cases cited in Johnson, see Bashlor v. Walker, 303 Ga. App. 478, 482-483 (1) (b) (693 SE2d 858) (2010); Butler, 261 Ga. App. at 378 (2); Williams v. Britton, 226 Ga. App. 263, 263 (485 SE2d 835) (1997); and Robinson, 131 Ga. App. at 107-108 (1).
See e.g., Sturbridge Partners, Ltd. v. Walker, 267 Ga. 785, 786-787 (482 SE2d 339) (1997).
The majority criticizes Hewitt to the extent it "implies that it is reasonably foreseeable in every case of car theft that a high-speed chase resulting in injuries is a reasonably foreseeable consequence of the theft[.]" See, supra, slip op. at *19, fn. 15. While I agree with the majority that Hewitt is not binding on this Court, I do not read Hewitt as the majority suggests. In Hewitt, the court reversed summary judgment in favor of Avis on the ground that reasonable persons could differ as to whether the facts established proximate cause based on "the combination of special circumstances that exist[ed] in the case at bar," including previous vehicle thefts from the facility, "the absence of any safeguards by management against theft[,]" and "the knowledge that Avis had, or should have had, of the harm that often occurs from the careless operation by thieves of stolen vehicles[.]" Hewitt, 912 S2d at 686. In my view, the reasoning in Hewitt simply reflects that the role of a jury, composed of representatives of the community and sitting as the finder of fact, requires the use of jurors' common sense and reasoning. A reasonable jury could conclude, as a matter of common sense in the jurors' judgment, that a criminal on the run in a stolen car can be expected to drive in an unsafe manner. A court asked to adjudicate proximate cause as a matter of law should not impose its own metric of a certain kind and number of prior incidents the court considers necessary to create a question of fact for the jury. --------
I do not believe that the instant cases are among the unusual cases in tort law where proximate cause can be adjudicated as a matter of law. I respectfully dissent.