Another Brick in the Wall: How the Supreme Court’s Decision in Johnson v. Avis Strengthened the Defense of Proximate Cause for Premises Owners and Employers

May 27, 2021Article

On May 3, 2021, the Supreme Court of Georgia issued a decision in the consolidated cases of Johnson v. Avis Rent a Car System, LLC and Smith v. Avis Rent A Car System, LLC.[1]  The two cases arose when Byron Perry, a car washer at a car rental company’s lot, snuck onto the lot about five hours after closing time and stole a rental vehicle with the intention of selling it. Before he could sell the vehicle, however, Perry drew the attention of police. In an attempt to elude the police, Perry drove at high rates of speed and ultimately lost control of the vehicle, crashed into a wall, and seriously injured two woman, Brianna Johnson and Adrienne Smith, who were sitting on the wall. Perry later pled guilty to serious injury by vehicle, hit-and-run resulting in serious injury, reckless driving, felony theft by taking, and other crimes.

In separate lawsuits, Johnson and Smith sued Avis Rent A Car System, LLC, Avis Budget Group, Inc., and Peter Duca, a regional security manager for Avis Budget Group, as well as CSYG, Inc., the independent operator of the downtown Avis location, Yonas Gebremichael (CSYG’s owner), and Byron Perry. The plaintiffs alleged that Avis was liable for negligently failing to secure its car and for negligently hiring, training, supervising, and retaining Gebremichael and CSYG and that Avis was vicariously liable for Gebremichael’s and CSYG’s negligence. Before trial, Perry was dismissed without prejudice from the Johnson suit.

According to the evidence presented in the two lawsuits, about a year and a half before the subject incident, Gebremichael hired Perry on behalf of CSYG to wash cars at the rental lot. When he was hired, Perry told his employer that he had been to prison, but a background check was not performed.[2] There was evidence presented of Avis’s “two-key system,” which allegedly made cars more likely to be stolen if one of the two keys was cut from the singular key ring and of Avis’s “general concerns” about nationwide car rental thefts. Avis’s Security Manager testified a car thief “could” attempt to evade police after stealing a rental car, and people “could be” seriously injured if one of Avis’s vehicles was stolen. Plaintiffs also presented evidence of one other car theft from the subject lot approximately a year before the subject incident. And while there was no other direct evidence of other thefts, Avis destroyed or failed to preserve certain “operator and location files” which were requested by the plaintiffs in discovery, leading to a jury instruction on spoliation of evidence and an adverse inference that information contained in those files “would have been prejudicial to Avis.”

The two lawsuits were tried to juries who returned very different verdicts. In the Johnson case, the jury awarded $7 million and apportioned 100% fault to Avis. However, in the Smith case, the jury awarded $47 million and apportioned fault as follows:

  • 50% to Avis
  • 33% to Perry
  • 15% to CSYG (independent operator of the Avis lot)
  • 1% to Duca (Avis’s regional security manager)
  • 1% to Gebremichael (owner of CSYG)

Avis filed a motion for judgment notwithstanding the verdict (JNOV) in both cases, arguing that Perry’s criminal conduct constituted a superseding, intervening act and, thus, was the sole proximate cause of the plaintiffs’ injuries.  Avis also argued that it owed no duty toward the plaintiffs.  In the Johnson case, the trial court overturned the verdict against Avis, finding that the verdict entered in favor of the lot owner and independent operator eliminated any possible basis for liability against Avis, including claims of negligent hiring and retention. Ultimately, the trial court granted Avis a new trial rather than judgment notwithstanding the verdict in the plaintiff’s favor. In the Smith case, the trial court denied both the Avis’s motion for new trial and motion for judgment notwithstanding the verdict. Avis appealed the trial court’s post-judgment rulings in both cases.

In 2019, the Georgia Court of Appeals reversed the verdicts in both the Johnson and Smith cases. In Johnson, the Court of Appeals agreed with Avis’s contention that it was entitled to judgment in its favor notwithstanding the verdict on the direct negligence claims because Perry’s intervening criminal conduct was a superseding cause and, thus, the sole proximate cause of the plaintiff’s injuries.[3] And in Smith, the Court of Appeals applied the same reasoning in holding Perry’s criminal conduct to be the proximate cause of the plaintiff’s injuries.[4] The Court of Appeals also concluded that the independent operator and lot owner were entitled to a judgment in their favor because Perry was not acting “under color of employment” at the time of the incident. The plaintiffs, Johnson and Smith, both petitioned to the Supreme Court of Georgia for certiorari, which was granted in both cases.

In its opinion, the Supreme Court affirmed the judgments of the Court of Appeals in both cases.  First, the Supreme Court held that even if Avis was negligent in allowing Perry to steal the vehicle, Avis still could not be held liable to the plaintiffs because Avis’s alleged actions did not proximately cause the plaintiffs’ injuries.[5]  The Court emphasized that the result of a defendant’s actions must be probable according to usual experience, not merely “possible”; otherwise, a plaintiff’s claims will fail as a matter of law for lack of proximate cause.  Probable here means “not unlikely” or such a chance of harm that a prudent person would foresee the risk.  “Jury questions on proximate cause do not exist simply because it may be “possible” to connect a defendant’s negligence to an otherwise unforeseen outcome, and to do so stretches the concept of proximate cause beyond its legal limits.”[6]  The Court found the cases analogous to cases in which a car owner leaves a car unattended with keys inside and a thief steals the car and causes an accident.  And, even with an adverse inference charge resulting from alleged spoliation of documents by Avis, evidence of “additional thefts by other employees would not increase the likelihood that Avis could have reasonably foreseen that Perry’s criminal actions would cause an accident with injuries following a high-speed chase several hours after stealing a car.”[7]

The Court held there was no evidence that the defendants did anything more than negligently allow the vehicle to be stolen and that the evidence demanded the conclusion the subject accident caused by Perry’s criminal conduct was not a probable or natural consequence that could have been reasonably foreseen by the defendants.  Accordingly, Perry’s criminal conduct was a superseding, intervening cause and the sole proximate cause of the plaintiffs’ injuries, and the defendants were entitled to judgment notwithstanding the jury’s verdict.

The Supreme Court also examined the plaintiff’s claims of negligent hiring and retention in the Smith case. Since the incident at issue did not occur during Perry’s working hours, the only potential avenue for the plaintiffs’ claims on negligent hiring and retention was to show that Perry was acting “under color of employment.”[8] Generally, an employee can act “under color of employment” in two ways: through a special relationship or by reason and virtue of employment.  For example, an employee can act “under color of employment” when that employee commits a tort against someone who has a business relationship or other “special relationship” with the employer and the tort arises out of that relationship.[9] And “[a]n employee may similarly act “under color of” his employment where the employee commits acts that are not authorized by his employment, but does those acts “in a form that purports they are done by reason of his employment duties and by virtue of his employment.”[10]

In these cases, the plaintiffs had no special or business relationship with Avis or CSYG, and Perry’s theft of the vehicle and subsequent accident after fleeing police were “not connected to his employment duties and were not accomplished by virtue of his employment.”[11] Perry had no right to access cars on the rental lot after hours; he was simply stealing the vehicle for his own purposes.  There was no evidence that Perry’s actions around the time of the crash “purported they [were] done by reason of [Perry’s] employment duties and by virtue of his employment.”  Perry did not interact with the plaintiffs or represent himself to the plaintiffs as an Avis employee.[12]  Accordingly, Perry could not be said to have been acting “under color of” employment by Avis or CSYG at the time of the crash.

While the Court affirmed the Court of Appeals’ ruling on this issue, however, it disagreed with Court of Appeals’ reliance on the fact that Perry obviously was acting “against the defendants’ interests.” Importantly, the Court held that whether an employee acts against the employer’s interest is not significant to the analysis.  In nearly every case, the Court explained, an employee’s actions which lead to a lawsuit against the employer are against an employer’s interest.

The Avis case has broad implications on issues of proximate cause and employer liability. First, this case is another in a handful of recent appellate decisions wherein the court has decided as a matter of law that a plaintiff’s claims failed for lack of proximate cause.[13] Avis represents another brick in the defensive wall in cases where, for one reason or another, the plaintiff’s injuries are too remote or too far removed from a defendant’s acts or omissions to proceed to jury. Again, proximate cause is a limit on liability that must attach to claims when the injury is not likely as applied to the specific defendant, specific location, and under specific circumstances. As the Supreme Court held in Avis, even assuming a defendant was negligent in its duty and alleged breach, proximate cause must always be examined. And where the facts show a large enough gap in time, circumstances, or otherwise, the plaintiff’s claims fail due to lack of proximate cause.

The Avis case also further informs us on Georgia law on the issue of employer liability.  We now have an explanation of what “color of employment” means as applied to claims of negligent hiring and retention.  Previously, this concept had largely only been analyzed in the context of government employees.  Importantly, this case shows that it will not be enough for a defendant employer to simply argue that an employee’s actions were against its interests.  In addition, the Court’s opinion in Avis suggests that the actions of the employee, rather than the employer, control the determination of whether an employee acts “under color of employment”—which seems both unfair and a major potential pitfall for employers in future cases. 

On the other hand, this case does not mean that “color of employment” will be found simply because an employee’s actions have some conceivable connection with his employment. Rather, the employee’s actions must be done in a form that purports they are done by reason of his employment duties and by virtue of his employment. In the proper case, an employer still may escape liability for the off-the-clock actions of an employee done not in furtherance in the employer’s business.

Authors: Martin A. Levinson (Partner, Atlanta), Elliott Ream (Associate, Atlanta)

[1] Johnson v. Avis Rent a Car Sys., LLC, Nos. S20G0695, S20G0696, 2021 Ga. LEXIS 199 (May 3, 2021).

[2] A background check of Perry would have revealed convictions for reckless driving, DUI, prior car theft and eluding police. 

[3] Avis Rent A Car Sys., LLC v. Johnson, 352 Ga. App. 858 (2019).

[4] Avis Rent A Car Sys., LLC v. Smith, 353 Ga. App. 24 (2019).

[5] The Court did not address whether Avis had any duty to protect the plaintiffs from harm.

[6] Johnson v. Avis Rent a Car Sys., LLC, Nos. S20G0695, S20G0696, 2021 Ga. LEXIS 199, at *13 n.15 (May 3, 2021).

[7] Id. at *15.

[8] Id. at *17, citing Harvey Freeman & Sons v. Stanley, 259 Ga. 233, 233-34 (1) (1989).

[9] Id. at *17, citing Harvey Freeman & Sons, 259 Ga. at 234(1).

[10] Id. at *18, citing Culpepper v. United States Fid. & Guar. Co., 199 Ga. 56, 58 (1945).

[11] Id. at *22.

[12] The Supreme Court specifically held that “[t]he fact that Perry wore an Avis shirt when he stole the SUV does not suggest that he was acting ‘under color of employment’ at the time of the collision, because the evidence presented at trial showed that Perry was wearing the shirt to cover up his crime if the police stopped him rather than as a means of representing to Smith that he was acting as an Avis employee when he collided with her.”  Id. at *21-22.

[13] See, e.g., Tyner v. Matta-Troncoso, 305 Ga. 480 (2019) (affirming grant of summary judgment to out-of-possession landlord because there was no evidence that landlord’s negligent failure to repair gate latch proximately caused pit bull attack); Goldstein, Garber & Salama, LLC v. J. B., 300 Ga. 840 (2017) (holding dental practice could not be held liable for employee’s sexual molestation of patient of the practice because employee’s criminal actions were intervening cause of plaintiff’s injuries); Cowart v. Widener, 287 Ga. 622 (2010) (holding that plaintiffs’ claims failed as a matter of law because there was no evidence that defendant’s failure to secure medical assistance promptly was the proximate cause of decedent’s death); St. Jude's Recovery Ctr., Inc. v. Vaughn, 354 Ga. App. 593 (2020) (holding operator of inpatient rehabilitation center could not be held liable for rape of center resident off premises due to absence of proximate cause).