Barnes v. Smith

                           THIRD DIVISION
                            MILLER, P. J.,
                      MCFADDEN 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://www.gaappeals.us/rules


                                                                   October 18, 2016




In the Court of Appeals of Georgia
 A16A1165. BARNES v. SMITH.

      MILLER, Presiding Judge.

      Deena Barnes filed suit against DLN Enterprises, Inc. (“DLN”), owner of Hank

& Jerry’s Tavern (the “Tavern”) in Rockdale County, as well as DLN’s sole

shareholder, Richard Smith, to recover for injuries she sustained after being involved

in a car accident with an intoxicated patron of the Tavern. Barnes brought claims

pursuant to Georgia’s Dram Shop law, OCGA § 51-1-40, as well as claims for

negligent training and supervision, and for punitive damages. Smith moved for

summary judgment on the ground that there was no basis to pierce the corporate veil

to find him personally liable for torts allegedly committed by DLN. The trial court

granted summary judgment to Smith, and Barnes appeals, contending that her claims
for negligent training and supervision provide a basis to hold Smith individually

liable.1 We disagree and, accordingly, affirm.

      On appeal from the grant or denial of a motion for summary judgment,
      we conduct a de novo review of the law and evidence, viewing the
      evidence in the light most favorable to the nonmovant, to determine
      whether a genuine issue of material fact exists and whether the moving
      party was entitled to judgment as a matter of law.


(Citation omitted.) Agnes Scott College, Inc. v. Clark, 

 (

) (2005).

      So viewed, the record shows that on November 19, 2012, Cyrus Scott Knight

was briefly at the Tavern in the afternoon, when he drank a beer and a Jagermeister

shot. He returned to the Tavern around 11:00 p.m. and drank half of a beer and about

one-and-a-half “Jager bomb” drinks.

      The night bartender was the supervisor of the Tavern on the night of the

accident. She noticed that Knight’s eyes were glossy, and he was belligerent. The


      1
         It does not appear from the record that DLN moved for summary judgment
on the claims Barnes asserted against it. Based on the record before us, the trial court
did not reach the merits of the claims against DLN. Where the trial court has not ruled
on an issue, we will not address it. CDP Event Svcs., Inc. v. Atcheson, 

 (2) (

) (2008). Consequently, nothing in this opinion should
be read to preclude Barnes’s claims against DLN.

                                           2
bartender unsuccessfully tried to take Knight’s keys, offered to call him a cab, and

offered to drive him home. She locked the front door to attempt to keep Knight from

leaving, but saw another patron let Knight out after he became increasingly

belligerent. Knight told the bartender that he was going to nap in his car and she

believed him, but then she heard his car drive away. Even though she knew Knight

should not be driving, the bartender did not call the police before or after Knight left

the Tavern because she knew him personally and did not want him to get in trouble

with the law.

      After leaving the tavern, Knight’s vehicle struck Barnes’s vehicle on I-20.

Barnes’s vehicle overturned, and she was seriously injured. Barnes subsequently filed

suit against DLN and Smith, alleging that Smith negligently trained and supervised

the Tavern’s employees. Smith moved for summary judgment on the ground that no

evidence supported piercing the corporate veil and allowing Barnes to sue him

personally. Barnes responded that her claims for negligent training and supervision

provided grounds to impose personal liability on Smith separate and apart from




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piercing the corporate veil. The trial court granted summary judgment to Smith, and

this appeal ensued.2

       1. Barnes argues that the corporate veil does not shield Smith from personal

liability for negligently training employees of the Tavern. We disagree.

       Although this Court has recognized that generally an officer of a corporation

who takes part in the commission of a tort by the corporation is personally liable

therefor, we have also held that this rule is inapplicable to claims against corporate

officers involving negligent training of corporate employees because a corporate

officer’s failure to properly train an employee does not constitute sufficiently direct

participation in a tort leading to a plaintiff’s injuries. Beasley v. A Better Gas Co., 

 (2) (

) (2004); see also Dempsey v. Southeastern

Indus. Contracting Co., 

 (3) (

) (2011) (“mere fact

that an injury occurred during a period when [a corporate officer] was responsible for

employee training and dispatch is not sufficient to support an inference that the injury

was caused by some actionable negligence on [the corporate officer’s] part.”)

       2
        Barnes does not argue on appeal that the trial court should have permitted her
to pierce the corporate veil to impose individual liability on Smith. Barnes has not
argued this position on appeal, and therefore we will not consider it. Headrick v.
Stonepark of Dunwoody Unit Owners Assn., Inc., 

 (6) (

) (2015); Court of Appeals Rule 25 (c) (2).

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(citation and footnote omitted). In this case, Barnes sought to do precisely this.

Consequently, the trial court properly granted summary judgment to Smith on

Barnes’s negligent training claim.

      2. Barnes also contends that summary judgment to Smith was improper on her

negligent supervision claim. We disagree.

      “For an employer to be held liable for negligent supervision, there must be

sufficient evidence to establish that the employer reasonably knew or should have

known of an employee’s tendencies to engage in certain behavior relevant to the

injuries allegedly incurred by the plaintiff.” (Citation and punctuation omitted.)

Novare Group, Inc. v. Sarif, 

 (4) (

) (2011); see

also Poole v. N. Georgia Conference of Methodist Church, Inc., 

 (

) (2005) (summary judgment appropriate when no evidence that

defendant was aware of employee’s improper behavior).

      Here, the evidence showed that the bartender who served Knight alcohol the

night of the accident was the supervisor of the shift. Barnes has not pointed us to any

evidence, however, and we have found none, which demonstrates that Smith knew

or should have known that the bartender required additional supervision based on her

history of serving alcohol to patrons. Barnes had an obligation to respond to Smith’s

                                          5
motion for summary judgment by pointing to specific evidence giving rise to a triable

issue on her negligent supervision claim. See Cowart v. Widener, 

(1) (a) (

) (2010). Barnes failed to come forward with such required

evidence. Accordingly, Smith was entitled to summary judgment on Barnes’s

negligent supervision claim.

      3. With regard to Barnes’s punitive damages claim against Smith, the claim

“will not lie in the absence of a finding of compensatory damages on an underlying

claim.” (Citation omitted). D.G. Jenkins Homes, Inc. v. Wood, 

(3) (

) (2003). Accordingly, the trial court properly granted summary

judgment to Smith on this claim.

      Judgment affirmed. McMillian, J. concurs. McFadden, J. concurs specially in

Division 1 and fully in Division 2.




                                         6
 A16A1165. BARNES v. SMITH.

MCFADDEN, Judge, concurring specially.

      I agree that the trial court’s ruling is due to be affirmed, and I concur fully in

Division 2 of the majority opinion. But I cannot concur fully in Division 1 because

it would adopt dicta from Beasley v. A Better Gas Co., 

 (

) (2004) and so create an unwarranted exception to the general rule regarding the

personal tort liability of corporate officers.

      In Beasley, the plaintiff sued a defendant company for wrongful death arising

from the negligent installation of a gas line. The plaintiff also sought to hold a

corporate officer personally liable for negligent training of the employees who

installed the gas line. 

 (2). The trial court granted summary judgment to the
officer on that negligent training claim, and this court affirmed. 

 In doing so, we

quoted the general rule that

       an officer of a corporation who takes part in the commission of a tort by
       the corporation is personally liable therefor, and an officer of a
       corporation who takes no part in the commission of a tort committed by
       the corporation is not personally liable unless he specifically directed the
       particular act to be done or participated or co-operated therein. Where
       the evidence is insufficient to pierce the corporate veil[,] the liability of
       the corporate officers for a tort committed by the corporation is
       dependent upon separate evidence of direct participation in the tort.

 (citations and punctuation omitted). We went on to hold that “[i]n this case, [the

officer’s] alleged failure to provide proper training to [the employees] is not a

sufficiently direct participation in a tort leading to [the alleged] injuries to expose [the

officer] to personal liability under Georgia law. Accordingly, the trial court’s grant

of [the officer’s] motion for summary judgment must be affirmed.” 

 (2).

So in Beasley, we simply applied the general rule that a corporate officer “who takes

no part in the commission of a tort committed by the corporation is not personally

liable unless he specifically directed the particular act to be done or participated or

co-operated therein.” 

                                             2
But as referenced in Division 1 of the majority opinion, Beasley also contained dicta

stating that

      [a]lthough an injured party may sustain a claim against a corporation for
      negligently training an employee, [the plaintiff] identifies no authority,
      and we have found none, for the proposition that a corporate officer
      responsible for training procedures may be held liable for an injury to a
      third party arising out of an alleged failure by the officer to properly
      train a corporate employee.

 (citations and emphasis omitted). This dicta was not the ultimate basis for the

holding in Beasley. Beasley does not grant corporate officers who directly participate

in negligent training of employees immunity from the liability to which other

defendants would be subject if they engaged in similar conduct. Rather, as noted

above, the actual holding in Beasley was premised on application of the general rule

quoted above and on this court’s conclusion that the officer in that case had not

directly participated in a tort. Likewise, in the instant case, the trial court correctly

granted summary judgment to sole shareholder Smith on the negligent training claim

brought against him because there is no showing that he directly participated in a tort.




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