Negligent security claims may be dead in Georgia. What about negligent hiring claims?   Leave a comment

In a recent opinion, the Georgia Court of Appeals has decided that a jury may assign a “percentage of fault” to parties and non-parties even where the injured victim is not even claimed to be responsible for their own injury.  Cavalier Convenience, Inc. vs. Sarvis et al

This legal  precedent may be the death knell to negligent security claims.  Under previous Georgia law, a crime victim could sue the land owner (such as a shopping mall or hotel), asserting negligent security.  The jury could hold the proprietor responsible if  the victim proved that the proprietor was aware of prior violent criminal conduct but did nothing to either prevent it or warn the victim to protect themselves from it. 

Under the new law of Cavalier, that proprietor is entitled to ask the jury to allocate fault to the non-party pursuant to O.C. G. A. 51-12-33.  Thus, even if the proprietor is liable, many juries will find that the proprietor’s fault is relatively slight when compared to that of the actual assailant.  That percentage of fault is then applied to any dollar award in the verdict.  In a recent example in DeKalb County Georgia, the jury found that the proprietor knew of criminal conduct, did nothing to address it, and did nothing to warn the victim.  They found that the victim was entitled to recover $150,000, but since they also found that the proprietor was only 5% at fault, the proprietor was only legally liable to the victim in the amount of $7,500, hardly worth the effort. 

It remains to be seen how Cavalier will be applied to negligent hiring claims.  In negligent hiring claims, a crime victim can hold the employer of the assailant responsible for their injuries if the employment context gave the assailant the opportunity to perpetrate the crime.  These cases often involve maintenance men or janitors who have been given the master keys to an apartment complex or office building.  Under prior Georgia law, the employer may be liable if they failed to perform background checks on their employee and consequently failed to learn of criminal convictions, pending arrest warrants or prior workplace violence that foreshadowed the attack. 

Will courts allow juries to distinguish between the fault of the employer and the fault of their employee?  If given the chance, will juries let employers off the hook even though the crime could not have occurred in the absence of their negligent hiring of a convicted criminal.  Or, will negligent hiring claims face the same apparent fate as negligent security claims.

By:  Render C. Freeman

Partner, Andersen, Tate & Carr, PC

Duluth, Gwinnett County, Georgia


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