Facts
Plaintiff Brett Hasty was a customer at Elevation Chophouse restaurant. While there, he and a friend ordered martinis prepared with liquid nitrogen. An Elevation employee brought the drinks, along with a pitcher of liquid nitrogen to Hasty’s table. At the table, the Elevation employee told Hasty that he and other employees had put their hands in liquid nitrogen and that three seconds was the longest anyone had kept a hand in the liquid. The Elevation employee then offered to pay Hasty’s dinner bill if Hasty could hold his hand in the liquid nitrogen for more than three seconds. Hasty accepted the dare and stuck his right hand in the pitcher of liquid nitrogen and kept it there for four seconds. The Elevation employee paid both Hasty and his friend’s drinks and dinner bill. Two hours later, Hasty developed chemical burns to his hand and went to the hospital and burn center for treatment.
Hasty sued Friendship Enterprises, Inc. d/b/a Elevation Chophouse restaurant for personal injuries asserting claims for premises liability, nuisance, negligent hiring, negligent supervision, negligent retention, respondeat superior, punitive damages, and attorney fees.
Elevation moved for summary judgment as to all of Plaintiff Hasty’s claims. The trial court denied Elevation’s motion and an appeal followed. The Court of Appeals reversed the trial court’s denial of summary judgment on the respondeat superior, premises liability, nuisance, and negligent training claims. The Court of Appeals did not address the other claims as there were not enumerations of error challenging the trial court’s denial of summary judgment as to negligent hiring, negligent retention, and negligent supervision.
Issues & Holdings
The issues in this case were as follows:
- Whether the employer could be held liable under a theory of respondeat superior for the employee’s actions?
- Whether the restaurant could be held liable under a theory of premises liability?
- Whether the restaurant could be held liable under a nuisance theory?
- Whether the restaurant could be held liable for negligent training.
- Whether the Plaintiff assumed the risk of his injuries as a matter of law?
- Whether the restaurant was entitled to summary judgment on the claims for punitive damages and attorney’s fees?
The Court of Appeals answered each question as follows.
- The restaurant was entitled to summary judgment on the respondeat superior claim.
- The restaurant was entitled to summary judgment on the premises liability claim.
- The restaurant was entitled to summary judgment on the nuisance claim.
- The restaurant was entitled to summary judgment on the negligent training claim.
- Summary judgment was properly denied on the assumption of risk defense.
- The restaurant did not show it was entitled to summary judgment on the claims for punitive damages and attorney’s fees.
Reasoning
Respondeat Superior
The Court of Appeals recited the two-part test for respondeat superior liability. First, the employee has to be acting in furtherance of the employer’s business, and second, the employee must be acting with the scope of his employer’s business. See Lucas v. Beckman Coulter, Inc., 348 Ga. App. 505, 508 (2019). In holding that the restaurant employee was not acting in furtherance of the restaurant’s business, or the scope of his employment, the Court relied on its decision in Leo v. Waffle House, 298 Ga. App. 838 (2009).
In Leo, a Waffle House employee was joking with customers and offered one $5 to drink a mixture of dishwasher detergent and several other non-edible items. The customer accepted the offer and sustained internal injuries as a result of drinking the concotion. The Court of Appeals in that case affirmed the trial court’s grant of summary judgment to Waffle House because the employee was not acting in further of Waffle House’s business, or within the scope of his employment.
The Court of Appeals analogized the facts before it to the facts in Leo. The Court of Appeals observed there was no evidence that the employee’s duties included offering customers money for sticking their hands in liquid nitrogen. In fact, the evidence showed the exact opposite as the employee was specifically trained to never put anything in liquid nitrogen and to never let customers touch it.
Premises Liability
The crux of a premises liablity claim in Georgia is the proprietor’s superior knowledge of a dangerous condition on its premises. Dowdell v. Krystal Co., 291 Ga. App. 469 (2008). Here, there was no evidence to support a finding of superior knowledge because there was no evidence of a prior incident involving a customer putting a hand in liquid nitrogen, or of any employee–including the one involved in this case–encouraging or allowing customers to make deliberate contact with it. As a result, the Plaintiff failed to show that the restaurant had actual or constructive knowledge of the dangerous condition, and therefore, the restuarant was entitled to summary judgment on the premises liability claim.
Nuisance
Like the premises liability theory, the nuisance theory required evidence that the restaurant had notice or knowledge of the dangerous condition. See Bolton v. Golden Bus., 348 Ga. App. 761, 764 (2019). Because there was no such evidence, summary judgment was also appropriate on the nuisance theory.
Negligent Training
“To establish a negligent training claim, a plaintiff must demonstrate that inadequate training caused a reasonably foreseeable injury.” Advanced Disposal Svcs. Atlanta, LLC v. Marczak, 359 Ga. App. 316 (2021). In this case, the evidence showed that employees were expressly instructed not to allow customers to touch liquid nitrogen. The employees were trained that one of the main rules was to “never let guests touch liquid nitrogen.” Employees were also trained on the dangers of liquid nitrogen. Based on this evidence, the Court of Appeals held that there was no genuine issue of material fact regarding the adequacy of the training
Assumption of the Risk Defense
The test for assumption of the risk is well established. The three-part test requires that a defendant show that “the plaintiff (i) had knowledge of the danger; (ii) understood and appreciated the risks associated with such danger; and (iii) voluntarily exposed himself to those risks.” Giddens v. Metropower, Inc., 366 Ga. App. 15, 17-18 (2022). The plaintiff’s knowledge does not refer to a general knowledge of non-specific risks. Id. Instead, the defendant must show that the plaintiff has subjective knowledge of “the specific, particular risk of harm associated with the activity or condition that proximately causes injury.” Id.
In this case, the Court of Appeals observed that the evidence was conflicting on the Plaintiff’s knowledge of the specific risk of harm of putting his hand in liquid nitrogen. The Plaintiff denied received any warnings from the restaurant employee about the dangers. There was no warnings posted in the restaurant either. The Plaintiff testified that the first time he ever encountered liquid nitrogen was at Elevation, he did know he could get burned by putting his hand in the substance, and he assumed it was not dangerous based on the employee’s statements. As a result, the Court of Appeals concluded that restaurant was not entitled to summary judgment on the assumption of the risk defense.
Punitive Damages and Attorney’s Fees
The Defendant’s sole basis for asserting it was entitled to summary judgment on the punitive damages and attorney’s fees claims was that the damages were derivative of the underlying claims, and that it was entitled to summary judgment on the underlying claims. However, the Court of Appeals noted that three underlying claims still remained: the claims for negligent hiring, negligent retention, and negligent supervision. The Court of Appeals noted that these claims were three separate theories of recovery and that they could be used to support punitive damages and attorney’s fees.
Conclusion
This case shows that not every action by an employee, while at work, imputes liability to the employer. This case also shows the important of pleading multiple theories of recovery and pursuing discovery to support each one. When an employee commits a negligent act, it is important to name the employee, as well as the employer. Even if the theories of recovery against the employer fail, you will still be able to pursue your claims against the employee (who is almost certainly insured under the employer’s liability coverage).
To learn more about The Champion Firm and the personal injury practice areas we cover, visit our main website here. If you’re an attorney seeking to refer a case or partner with us as co-counsel, learn more here.
Citation: Friendship Enterprises, Inc. v. Hasty, No. A23A0520 (Ga. Ct. App. June 6, 2023)
