BLACKWELL, Judge.
Hunter Bennett sued B-T Two, Inc., which does business as Buffalo's Café, to recover damages for injuries that he sustained at the hands of a Buffalo's employee and another unidentified person, who together assaulted Bennett at a party. Bennett contends that Buffalo's is liable under the doctrine of respondeat superior for the tort of its employee, and Bennett also claims that Buffalo's is liable for its own negligence in sponsoring a party at which unlimited alcohol was served and inadequate security was provided. After the trial court denied Buffalo's motion for
Summary judgment is warranted when the pleadings and record evidence establish that the material facts are undisputed and these facts entitle the moving party to judgment as a matter of law. See OCGA § 9-11-56(c); see also Marcum v. Gardner, 283 Ga.App. 453, 454, 641 S.E.2d 678 (2007); Smith v. Atlantic Mut. Cos., 283 Ga.App. 349, 350, 641 S.E.2d 586 (2007). We review the denial of a motion for summary judgment de novo. And on appeal, we assess the record evidence in the same way as the trial court, viewing it in the light most favorable to the nonmoving party. See McCaskill v. Carillo, 263 Ga.App. 890, 589 S.E.2d 582 (2003).
So viewed, the evidence shows that, on the evening of September 30, 2006, several individuals hosted a party at a private residence in Laurens County. The hosts intended to raise money at the party for a Buffalo's manager, who was moving away to attend to the medical needs of his sick child. Several Buffalo's employees attended the party, and some of these employees wore Buffalo's uniforms. Flyers advertising the party were posted at a Buffalo's restaurant in Laurens County, which read:
There is no evidence that Buffalo's owned or leased the residence at which the party was held, paid for any expenses of the party, provided food or alcohol for the party, received any revenues collected at the party, or placed any Buffalo's signs or other promotional materials at the location of the party.
Bennett learned of the party from his cousin, and they attended the party together. When they arrived, they saw a young woman wearing a Buffalo's shirt and selling wristbands, the purchase of which entitled the buyer to unlimited beer. Instead of buying a wristband, however, Bennett obtained one from another partygoer, who was leaving the party at the time Bennett and his cousin arrived.
After he arrived at the party, Bennett began playing billiards, but he later walked to a bar inside the residence and asked the bartender for a beer. The bartender—the wife of Justin King, a Buffalo's employee— refused to serve Bennett, falsely claiming that there was no more beer. Bennett demanded a beer or a refund of the cost of a wristband, and after another person intervened, the bartender relented and gave Bennett a beer.
Bennett then returned to his billiards game but found a man, with whom he was unacquainted, sitting on the edge of the billiards table. When Bennett asked the man to move, the man became angry and started toward Bennett. To avert a confrontation, Bennett explained that he did not mean to offend and only wanted to play billiards, and the man walked away. As Bennett resumed his billiards play, Bennett's cousin walked to the bar to get a beer. When his cousin returned, he warned Bennett that the bartender had said that, if Bennett were looking for a fight, he would get one. Not believing that he was in danger, Bennett continued to play billiards.
About 30 minutes later, the unknown man whom Bennett previously had found sitting on the billiards table returned and apologized for the earlier confrontation. Bennett did not notice that, as the unknown man approached and spoke with him, Justin King also was approaching him from the other side. Without warning, King struck Bennett in the head with such force that Bennett fell to the floor. While Bennett was down, King and the unknown man began hitting and kicking him. Bennett's cousin and other partygoers intervened to stop the assault, and Bennett was taken to the hospital, having sustained serious injuries.
In September 2008, Bennett filed this lawsuit, asserting claims against Buffalo's under
After discovery, Buffalo's moved for summary judgment on each claim that Bennett asserts against it. In support of its motion, Buffalo's offered an affidavit, in which a representative of the company stated that Buffalo's did not own or lease the residence at which the party was held and did not supply any food or alcohol for the party. After a hearing, the trial court denied the motion, finding that genuine issues of material fact precluded summary judgment. Buffalo's then asked for immediate review in this Court, which we allowed, and this appeal followed.
1. Buffalo's contends that it is not liable to Bennett under the doctrine of respondeat superior because the assault upon Bennett by a Buffalo's employee was neither within the scope of his employment nor in furtherance of Buffalo's business. We agree and reverse the denial of summary judgment on the respondeat superior claim.
Under the doctrine of respondeat superior, a master is liable for the tort of its servant only to the extent that the servant committed the tort in connection with his employment by the master, within the scope of his employment, and in furtherance of his master's business. See Piedmont Hosp. v. Palladino, 276 Ga. 612, 613-614, 580 S.E.2d 215 (2003); see also Dowdell v. Krystal Co., 291 Ga.App. 469, 470(1), 662 S.E.2d 150 (2008). As we have said before, "the general rule for determining whether the master is liable for the acts of an employee is `not whether the act was done during the existence of the employment, but whether it was done within the scope of the actual transaction of the master's business for accomplishing the ends of his employment.'" Brownlee v. Winn-Dixie Atlanta, 240 Ga.App. 368, 369(1), 523 S.E.2d 596 (1999). Although a jury often must resolve whether a servant, at the time he committed a tort, was acting within the scope of his employment and in furtherance of his master's business, the evidence in some cases is so plain and undisputable that the court properly may decide a respondeat superior claim as a matter of law. See Leo v. Waffle House, 298 Ga.App. 838, 842(3), 681 S.E.2d 258 (2009); see also Drury v. Harris Ventures, 302 Ga.App. 545, 546(1), 691 S.E.2d 356 (2010) ("Summary judgment for the master is appropriate where the evidence shows that the servant was not engaged in furtherance of his master's business but was on a private enterprise of his own.").
Even assuming that Buffalo's sponsored the party and that King attended the party in connection with his employment by Buffalo's, there is no evidence in the record that the assault upon Bennett was within the scope of his employment or in furtherance of Buffalo's business. There is nothing in the record, for instance, from which a jury properly might infer that assaulting a partygoer without provocation was even arguably among the responsibilities that King owed his employer or that the assault upon Bennett had, or was intended to have, any business purpose whatsoever. Whatever King's reasons for assaulting Bennett, there is no evidence from which a jury might conclude that the assault had anything to do with Buffalo's business. In cases presenting similar facts and involving similar claims, we
2. Buffalo's also contends that it is entitled to summary judgment on the negligence claim. Bennett has advanced two distinct theories of negligence, and we turn first to his contention that Buffalo's was negligent because it sponsored a party at which unlimited alcohol was served and that the service of alcohol to partygoers was a proximate cause of his injuries. As Buffalo's correctly observes, this theory of negligence is squarely foreclosed by OCGA § 51-1-40, which provides that, except in limited circumstances not presented in this case,
3. We turn now to Bennett's second theory of negligence, that Buffalo's was negligent for sponsoring a party without furnishing adequate security. Buffalo's contends that this theory of negligence fails because Bennett has come forward with no evidence showing that Buffalo's had any knowledge, much less superior knowledge, of the danger that Bennett might be assaulted at the party. See OCGA § 9-11-56(e) ("When a motion for summary judgment is made and supported as provided in this Code section, an adverse party may not rest upon the mere allegations... of his pleading, but his response ... must set forth specific facts showing that there is a genuine issue for trial."). We agree that such evidence is absent from the record and is fatal to Bennett's second theory of negligence. For this reason, as well as the reasons set forth in Division 2, supra, we reverse the denial of summary judgment for Buffalo's on the negligence claim.
To prove a claim of negligence, of course, a plaintiff must prove that "the defendant did something that it should not have done or failed to do something that it should have done pursuant to the duty owed the plaintiff." Parker v. Hovers, 255 Ga.App. 184, 186(1), 564 S.E.2d 795 (2002). Pursuant to OCGA § 51-3-1, an owner or occupier of land owes a duty of ordinary care to keep the premises safe for persons whom he invites or induces to come upon the land.
In prior cases, this Court and our Supreme Court have been required to decide whether this duty of ordinary care required an owner or occupier of land to keep an invitee safe from the criminal act of a third party,
Applying these principles to this case, to support his second theory of negligence, Bennett must come forward with evidence from which a jury could conclude that Buffalo's had knowledge of circumstances that would lead a reasonable person to anticipate a criminal assault at the party and that Buffalo's had more knowledge of the possibility of such an assault than Bennett had. Even viewing the record evidence in the light most favorable to Bennett, as we must, it is apparent that Bennett has not carried this burden. See Lau's Corp., supra, 261 Ga. at 491, 405 S.E.2d 474.
A variety of circumstances might lead a reasonable person to anticipate a criminal act at a particular location or event. For instance, a history of similar criminal acts at or near the same location or event might be enough. See, e.g., Wade v. Findlay Mgmt., 253 Ga.App. 688, 690, 560 S.E.2d 283 (2002). Knowledge that a specific third party will be present at the location or event, accompanied by knowledge that the same third party has a history of violence, might also be enough. See, e.g., Mason v. Chateau Communities, 280 Ga.App. 106, 113, 633 S.E.2d 426 (2006). But there is no such evidence in the record here. There is, for instance, no evidence that Buffalo's had any knowledge that would have indicated King or any other partygoer had a propensity for violence, and there is no evidence that Buffalo's had knowledge that violence had broken out at any similar party or gathering in the area. Because Bennett has the burden of coming forward with some evidence showing that Buffalo's knew of some circumstances that would have led a reasonable person to anticipate the assault, the absence of such evidence in the record is fatal to his claim.
Even if we were to assume it to be "common knowledge" that, when alcohol is served, some people may become intoxicated and that, when people become intoxicated, some of them may become violent, it would not save Bennett's claim. In this case, even if Buffalo's knew that alcohol would be served at the party and could have anticipated that
Even if we thought the record could support Bennett's assertion that Buffalo's could have reasonably foreseen the criminal assault against Bennett, he has failed to come forward with any evidence from which a jury could conclude that Buffalo's had superior knowledge of the risk of criminal wrongdoing. Because such a showing is an essential element of Bennett's claim that Buffalo's was negligent in failing to furnish security for the party, and because Bennett's other theory of negligence is fatally flawed for the reasons discussed in Division 2, supra, we reverse the denial of summary judgment for Buffalo's on the negligence claim.
4. Bennett sought punitive, as well as compensatory, damages from Buffalo's. "In accordance with OCGA § 51-12-5.1, punitive damages can only be awarded as additional damages." Nelson v. Glynn-Brunswick Hosp. Auth., 257 Ga.App. 571, 580(5), 571 S.E.2d 557 (2002). Here, because Bennett has failed to demonstrate that he has any viable claim against Buffalo's, the trial court also should have awarded summary judgment to Buffalo's on the demand for punitive damages. See Dowdell, supra, 291 Ga.App. at 473(4), 662 S.E.2d 150.
Judgment reversed.
DILLARD, J., concurs.
BARNES, P.J., concurs specially.
BARNES, Presiding Judge, concurring specially.
While I agree with the results in this case, I do not agree with all that is said, and thus concur specially.
Bennett contends that Buffalo's is responsible for his injuries under theories of respondeat superior and negligence. The record contains only circumstantial evidence that Buffalo's sponsored or participated in giving the party. The flyer said the party was to "help Buffalo's say farewell" to one of its managers, and some of the party attendees wore restaurant work shirts. One witness testified that he had seen flyers for the party at the restaurant a week beforehand, but did not recall whether they were posted on a wall, being handed out, or stacked on a table. He did not recall the specifics of the flyer and attended the party because a girl he knew invited him. All of the other witnesses, including Bennett and his mother, who investigated the issue after the fight, had only second- or third-hand knowledge of Buffalo's possible involvement. In fact, in his response to Buffalo's motion for summary judgment, Bennett cited to his complaint as support for the proposition that his attacker was a Buffalo's manager, and cited to the indictment against the attacker for the proposition that the company sponsored the party.
In contrast, a stockholder of the company that owns Buffalo's submitted an affidavit stating that Buffalo's did not sponsor the party and did not buy food or beverages for the party. He also averred that no one used Buffalo's beer or liquor licenses to buy alcohol for the party, and that none of the Buffalo's employees who attended the party was working for the restaurant at the time.
(Citations omitted.) Copeland v. Houston County Hosp. Auth., 215 Ga.App. 207, 208, 450 S.E.2d 235 (1994).
The circumstantial evidence of the flyer itself and its presence at the restaurant is not inconsistent with the direct evidence that Buffalo's did not sponsor the party. Accordingly, Buffalo's was entitled to summary judgment on all of Bennett's claims. Discussion of whether the assault was committed by an employee acting within the scope of his employment, whether sponsoring a party where unlimited alcohol was served without adequate security might lead to liability, whether the criminal assault on Bennett was foreseeable, and whether Bennett had "superior knowledge" of the impending assault is not necessary to resolve this appeal.
For these reasons, I concur specially in the majority opinion.