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In an appeal before the Supreme Court of Georgia involving two multi-million dollar judgments, the Georgia Defense Lawyers Association tapped FMG Attorneys Phil Savrin and Alexia Roney to author an amicus brief on the scope of foreseeability for injuries arising from the criminal conduct of an off-duty employee and whether that employee acted under “color of employment”. FMG’s attorneys argued that the court should exercise its inherent authority to determine as a matter of law that an injury is too remote to allow recovery and that the employee was outside the color of employment. In its decision of May 3, 2021, the Supreme Court agreed.
The two cases arose when a car washer at a car rental company named Byron Perry snuck onto the lot after it had closed and stole a vehicle, intending to sell it. Hours later, while fleeing from police in the same vehicle, Perry struck a wall and critically injured the two plaintiffs. In separate trials against the company, juries awarded $47 million and $7 million in damages which were apportioned among several parties. The trial court’s denial of a motion for judgment notwithstanding the verdict was reversed by the Court of Appeals after which the plaintiffs sought review by the Supreme Court.
In affirming the Court of Appeals’ decision, the Supreme Court ruled that judgment should have been granted as a matter of law because “the subsequent accident caused by Perry’s criminal conduct was not a probable or foreseeable consequence that could have been reasonably foreseen by the defendants.” Separately, the Supreme Court found the defendants could not be liable under a “color of employment” theory because Perry’s theft and subsequent accident “were not connected to his employment duties and were not accomplished by virtue of his employment.”
In so concluding, the Supreme Court agreed with FMG’s arguments that judges need to decide, in the first instance, whether an injury is too remote from a party’s conduct for a claim to proceed a jury and that Perry’s conduct was not under “color of employment.”
The reported decision can be found at Johnson v. Avis Rent a Car System, LLC, 2021 Ga. LEXIS 199 (Ga. May 3, 2021).