Employee Steps Away From Employment, Right? Court of Appeals Says, “Not So Fast!”

In ADVANCED DISPOSAL SERVICES ATLANTA, LLC. v. MARCZAK, Georgia Court of Appeals A21A0180 A21A0181 (04-08-2021), Mr. Marczak and his spouse sued for injures suffered when the driver of an Advanced Disposal Services (“ADS”) recycling truck assaulted Marczak rendering him unconscious. On March 14, 2018, Marczak placed a bin full of recyclable material by the curb outside of his house for pickup. He also put an extra bag of recyclables on top of the bin. At some point, however, the wind blew the bag off of the bin and onto the Marczaks' driveway, where it remained. Around 3:00 p.m., an ADS recycling truck driven by ADS employee Bucknor arrived at the Marczak home. Bucknor retrieved the recyclables from the Marczaks' bin, but he did not pick up the loose bag of recycling from the driveway, which in his view was not "curbside" and thus not where recyclables needed to be for collection.

When Marczak noticed that the bag was still on the driveway, he went outside, said "[t]his goes too," and tossed the bag toward Bucknor, who was emptying the recycling bin at a neighbor's house. Bucknor replied with an expletive, left the bag on the ground, and got into the cab of his truck. Stating "[n]o, you take it, it's your job," Marczak threw the bag into the driver's side of the truck cab. Bucknor jumped out of the truck and hit Marczak in the face. He then returned to the truck cab briefly, but got out again and hit Marczak several more times, leaving Marczak unconscious and face-down on the driveway. By the time Marczak regained consciousness approximately 15 minutes later, police and emergency personnel had arrived, and he was taken to the hospital.

ADS sought summary judgment as to claims of respondeat superior liability and claims related to negligent training of Bucknor. The trial court granted summary judgment as to respondeat superior holding that Bucknor had stepped away from his duties/role as an ADS employee when he assaulted Marczak. The trial court denied summary judgment as to claims for negligent training of Bucknor. The Georgia Court of Appeals reversed the grant in part of the motion for summary judgment as to respondeat superior and affirmed denial of summary judgment with regard to negligent retention of Bucknor.

The court, as to respondeat superior, reasoned:

Pursuant to OCGA § 51-2-2, "[e]very person shall be liable for torts committed by ... his servant by his command or in the prosecution and within the scope of his business, whether the same are committed by negligence or voluntarily." An employer, therefore, is responsible for the conduct of an employee acting in furtherance of and within the scope of the employer's business. See Ga. Messenger Svc. v. Bradley, 311 Ga. App. 148, 151 (2) (715 SE2d 699) (2011). If, on the other hand, the employee commits a tort "for reasons unrelated to that employment (e.g., for purely personal reasons disconnected from the authorized business of the master), the employer is not liable." Id. (citation and punctuation omitted).

Whether an employee has acted in furtherance of and within the scope of his employment "is for determination by the jury, except in plain and indisputable cases." Id. (citation and punctuation omitted). Undoubtedly, Bucknor was carrying out his ADS job responsibilities when he first encountered Marczak. ADS contends, however, that Bucknor necessarily (and as a matter of law) "abandoned ADS's business of collecting recyclables when he engaged in a physical altercation following [Marczak] throwing a bag in his face." (emphasis in original). We disagree. It appears that Bucknor's original decision to hit Marczak was a personal reaction to Marczak's conduct. As Bucknor recalled: "[Marczak] hit me with the [bag] — you know, I hit him back." But the evidence also shows that Bucknor retreated to his truck briefly after that first blow. He then got out of the truck, re-engaged in the altercation, and continued to hit Marczak, causing Marczak to fall and suffer injuries. Asked why he re-engaged after retreating, Bucknor testified that he was fearful that Marczak would take action against him as he tried to finish his recycling route…

With regard to negligent training, the court emphasized:

To establish a negligent training claim, a plaintiff must demonstrate that inadequate training caused a reasonably foreseeable injury. See Doe v. YWCA of Greater Atlanta, 321 Ga. App. 403, 408 (2) (740 SE2d 453) (2013); see also Tyner v. MattaTroncoso, 305 Ga. 480, 488 (3) (826 SE2d 100) (2019) ("[W]ithout reasonable foreseeability — a hallmark of proximate cause — there exists no genuine issue of material fact as to . . . causation."). ADS's Director of Human Resources testified that drivers are "trained to stay in the truck, roll the windows up, lock the door, contact their supervisor and not to have any altercations with customers." According to Bucknor, however, his training related solely to "operation of the truck," focusing on "the ins and outs of the truck compartments, how to pre-trip, post-trip, proper fuels to put in there, how to run the route, stuff like that[.]" Bucknor's operations manager and his supervisor similarly testified that drivers received no specific training on customer interactions, although a culture of treating customers with respect and professionalism existed, and drivers were coached about the situation if a customer complained.

Given this testimony, questions of fact exist as to (1) whether driver-customer confrontations were reasonably foreseeable to ADS; (2) whether Bucknor received the training described by ADS's Human Resources Director regarding how to respond to such confrontations; and (3) whether the training he actually received was adequate. Factual issues also remain as to the foreseeability of Bucknor's conduct. The evidence shows that in February 2018, approximately six weeks before Bucknor's altercation with Marczak, his supervisors confronted him about his failure to perform certain work duties. In response, he began to argue and curse, "became unruly[,]" and walked out of the office. When one of the supervisors followed him, Bucknor told the supervisor "not to walk behind him, he isn't one to be messed with." ADS argues that the February 2018 incident provided no notice that Bucknor would hit a customer multiple times outside of the customer's home. It notes that Bucknor had not previously been convicted of a crime, and a background check revealed no violent propensities. The Marczaks, however, were not required to prove the foreseeability of the particular consequences of Bucknor's behavior or the precise injuries sustained by Marczak. See Remediation Resources v. Balding, 281 Ga. App. 31, 34 (2) (635 SE2d 332) (2006). Rather, on summary judgment, they only needed to produce "some evidence of incidents similar to the behavior that was the cause of the injury at issue." Id.

Finally, the court concluded:

To avoid summary judgment on this claim, the Marczaks needed to present evidence that ADS retained Bucknor as an employee, despite either actual or constructive knowledge that he posed a reasonably foreseeable risk of causing the type of harm suffered by the Marczaks. See Munroe, supra; Hardison, supra at 707. The trial court concluded that ADS had no such knowledge here. As discussed in Division 2, however, Bucknor's February 2018 response to his supervisor creates factual questions as to ADS's knowledge, particularly as to whether ADS should have anticipated that Bucknor would react violently and aggressively during an extended confrontation regarding his work performance.

It would appear the truck driver and the ADS HR director in this matter may have been prepared for deposition in a manner that did not understand what facts or disputed facts could create issues for summary judgment. In other words, “garbage in, garbage out.” Needless to say, the astute plaintiff attorney understood the law and was able to recycle the claims the trial court had discarded.