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Dester v. Dester10/19/1999
intoxicated. He also testified that he had fired Mr. Dester in 1988 or 1989 after the prime contractor on a job found marijuana seeds in his car, but that Mr. Dester said they were not his and that he did not use the drug. Jenkins rehired him a couple of years later after Mr. Dester again said he was not involved with drugs.
We have held evidence insufficient to show negligent entrustment when the car owner knew the driver had a drinking problem, and also when the employer knew an employee had beer cans in the company vehicle and drank on the premises, and knew some employees bought beer when they fueled the company trucks. Clark v. Cox, 197 Ga. App. 83, 84 (1) (397 SE2d 598) (1990); Carolina Cable Contractors v. Hattaway, 226 Ga. App. 413, 416 (487 SE2d 53) (1997). As in those case, the evidence Mrs. Dester presented in this case neither shows actual knowledge nor creates a reasonable inference that Jenkins Construction knew Mr. Dester drove while impaired by alcohol. The trial court erred in denying Jenkins Construction's motion for summary judgment on Mrs. Dester's negligent entrustment claim.
3. Finally, Jenkins Construction contends the trial court erred in denying summary judgment on Mrs. Dester's negligent hiring and retention claim. We agree.
In Lear Siegler v. Stegall, 184 Ga. App. 27 (360 SE2d 619) (1987), the defendant's employee had an automobile accident while he was driving a company-supplied vehicle to work. The plaintiff claimed that the defendant was negligent in hiring the employee, but we held that the theory of negligent hiring was conceptually inapplicable when the tortious conduct was committed outside the scope of employment. Id. at 28. In Harvey Freeman & Sons v. Stanley, 259 Ga. 233, 234 (1) (378 SE2d 857) (1989), our Supreme Court explained the rationale of Lear Seigler and created the following exception:
he holding in Lear Siegler acts to shield employers from liability for those torts his employee commits on the public in general, whereas the evidence in this case is that the two minor female plaintiffs probably never would have even met the Clarks or gone to their apartment if the Clarks had been merely tenants, and that their whole relationship began because she was the resident manager. Thus, even aside from the fact that Mrs. Clark was expected to be available to the tenants 24 hours a day, the landlord's potential liability could rest on the special landlord-tenant relationship, even for acts which occurred in other than normal office hours and in other locations than the apartment complex. See also New Madison South Limited Partnership v. Gardner, 231 Ga. App. 730, 734 (2) (499 SE2d 133) (1998).
In this case, Mr. Dester was not acting within the course and scope of his employment, and Mrs. Dester's relationship with Mr. Dester arose out of her marriage to him, not out of his employment with Jenkins Construction. As a result, the trial court erred in denying Jenkins Construction's motion for summary judgment on Mrs. Dester's negligent hiring and retention claim.
Judgment affirmed in A99A0930 and reversed in A99A0931. Blackburn, P. J., and Ellington, J, concur.
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