Verdict - Summer 2011 - (Page 40)

lessons from the listserver Is Defendant Driver History Permissible? BY TEDRA CANNELLA HOBSON AND ANNA WILLIAMS Editor’s Note: Lessons from the Listserver is a regular installment in the Verdict that provides additional depth and research to a recent GTLA “Members Discuss” topic of interest to younger lawyers. W here a defendant driver has an egregious history of reckless driving, a jury will seldom hear about it because the general rule in actions arising out of automobile collisions is that a defendant’s prior and subsequent bad driving history is inadmissible. Grannemann v. Salley, 95 Ga. App. 778, 779, 99 S.E.2d 338, 340 (1957) (“the issue is the negligence or non-negligence of the operator at the time and place of the event, and each such transaction is to be ascertained by its own circumstances and not by the reputation or character of the parties” (quoting Healan v. Powell, 91 Ga. App. 787, 790, 87 S.E.2d 332, 335 (1955)). Claims for negligent entrustment and negligent hiring and retention are two of the exceptions to this rule. In these cases, evidence of the driver’s prior recklessness is “essential” to proving the case. Thomason v. Harper, 162 Ga. App. 441, 442, 289 S.E.2d 773, 777 (1982). A cla im for negl igent entrustment lies where one entrusts a motor vehicle to someone with knowledge that the person to whom he has entrusted the motor vehicle “is incompetent by reason of his age or inexperience, or his physical or mental condition, or his known habit of recklessness.” Viau v. Fred Dean, Inc., 203 Ga. App. 801, 803, 418 S.E.2d 604, 607 (1992) (citation omitted). Generally, the entrustor must have actual, as opposed to mere constructive, knowledge of the pattern of recklessness. Thomason, 162 Ga. App. at 446, 289 S.E.2d at 780; Carolina Cable Contractors, Inc. v. Georgia Trial Lawyers Association Hattaway, 226 Ga. App. 413, 416, 487 S.E.2d 53, 55 (1997). Where actual knowledge is required, the plaintiff may prove it by circumstantial evidence and in fact typically must prove it by circumstantial evidence, since a defendant will rarely admit actual knowledge. Ed Sherwood Chevrolet, Inc. v. McAuley, 164 Ga. App. 798, 799, 298 S.E.2d 565, 567 (1982); Hattaway, 226 Ga. App. at 416, 487 S.E.2d at 55. Constructive knowledge is, however, sufficient to create liability in two circumstances. First, where the law imposes a duty on the entrustor to make an investigation into the driver’s qualifications an action for negligent entrustment will lie even where the entrustor has no actual knowledge of the driver’s incompetency. Smith v. Tommy Roberts Trucking Co., 209 Ga. App. 826, 829, 435 S.E.2d 54, 57 (1993) Employers and entrustors who ignore the risk of allowing dangerous drivers on the road place lives in danger. (trucking company required to make inquiries into driver’s qualifications and driving record); Jones v. Dixie Drive It Yourself Sys., 97 Ga. App. 669, 674, 104 S.E.2d 497, 501 (1958) (statute placed a duty on rental company “to ascertain whether or not the driver has an operator’s license, and to withhold the vehicle unless such license is exhibited to him”). Second, in a negligent hiring and retention claim, there is no requirement that the employer have actual knowledge of the employee’s incompetency. An employer has a duty to “exercise ordinary care in the selection of employees and not to retain them after knowledge of incompetency.” O.C.G.A. § 34-7-20. Thus, an employer is liable where he “knew or should have known the employee was not suited for the particular employment.” Western Indus., Inc. v. Poole, 280 Ga. App. 378, 382, 634 S.E.2d 118, 121 (2006) (employer’s failure to follow its own policy of obtaining driving record before hiring drivers created a fact question on negligent hiring and retention claim); Cherry v. Kelly Services, Inc., 171 Ga. App. 235, 235, 319 S.E.2d 463, 464 (1984). One issue that frequently arises in claims for negligent entrustment and negligent hiring and retention is how to admit prior instances of incompetent driving against the entrustor or employer without unfairly prejudicing the co-defendant driver. Establishing the entrustor’s liability requires admission of prior instances of defendant-driver’s reckless driving. Thomason, 162 Ga. App. at 442, 289 S.E.2d at 776. Yet, that same evidence is irrelevant and potentially prejudicial to the determination of the driver’s negligence. Id. In cases where claims for negligent entrustment are brought with a simple negligence claim against the driver, the court may grant a limiting instruction to the jury to consider prior instances of reckless driving only for the purpose of 40

Table of Contents for the Digital Edition of Verdict - Summer 2011

Let the Jurors Be Heard
A Rule Needing Limits: The “Right For Any Reason” Rule
Speaking Out of Turn: Ex Parte Interviews With Plaintiff’s Treating Physicians
GTLA 2011 President’s Gala: In Pictures
Legislative Relationships: The Key to Legislative Results
Welcome to the Federal Rules of Evidence: Georgia’s New Evidence Code
Judicial Spotlight: Reflections from the Bench
Book Review: The Fall of the House of Zeus
How I Obtained Justice for My Client: Cranford v. Ernest Homes
Technology Update: Securing Justice for Victims of Negligence? There’s an App for That!
Lessons from the Listserver: Is Defendant Driver History Permissible
Recent Updates in Workers’ Compensation
Welcome New GTLA Members!
Profile Listings

Verdict - Summer 2011