SECOND DIVISION
MILLER, P. J.,
HODGES and PIPKIN, JJ.
NOTICE: Motions for reconsideration must be
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June 25, 2021
In the Court of Appeals of Georgia
A21A0345. HEALTHCARE STAFFING, INC. v. EDWARDS, et al.
A21A0346. HEALTHCARE STAFFING, INC. v. MOORE, et al.
A21A0395. HEALTHCARE STAFFING, INC. v. EDENFIELD, et
al.
HODGES, Judge.
These cases arise from the alleged abuse by Errol Wilkins against three
mentally incapacitated adults at a behavioral health facility. Appellant Healthcare
Staffing, Inc. (“HCS”) employed Wilkins at the time he purportedly abused these
patients of Gateway Behavioral Health Services. Guardians for the patients — Sadie
Edwards, Catherine Moore, and Cheryl Edenfield — sued HCS for failure to train and
supervise, negligent retention, breach of contract, assault and battery, negligent
hiring, and fraud. The parties filed cross motions for summary judgment, which the
trial court denied. HCS sought and obtained a certificate of immediate review in each
case, and this Court granted its interlocutory applications.1 HCS timely appealed,
contending that the trial court erred in (1) denying its motion for summary judgment
for claims arising from vicarious liability for the actions of its employees because the
borrowed servant doctrine precludes liability; (2) denying its motion for summary
judgment on appellees’ direct claims against it for negligent hiring, training, and
retention; and (3) denying its motion for summary judgment on appellees’ breach of
contract claim because the Gateway patients were not third-party beneficiaries of the
contract between HCS and Gateway. For the reasons that follow, in all three cases we
affirm the trial court’s denial of summary judgment as to appellees’ tort claims and
reverse its denial as to the breach of contract claims, and we remand the cases for
further proceedings consistent with this opinion.
To obtain summary judgment,
the moving party must demonstrate that there is no genuine issue of
material fact and that the undisputed facts, viewed in the light most
favorable to the nonmoving [parties], warrant judgment as a matter of
law. A defendant may do this by showing the court that the documents,
affidavits, depositions and other evidence in the record reveal that there
is no evidence sufficient to create a jury issue on at least one essential
1
We have consolidated the appeals for the purpose of issuing this opinion
because they involve identical legal issues.
2
element of [plaintiffs’] case. If the moving party discharges this burden,
the nonmoving [parties] cannot rest on [their] pleadings, but rather must
point to specific evidence giving rise to a triable issue.
(Citation omitted.) Matthews v. Mills, 357 Ga. App. 214 (850 SE2d 424) (2020).
So viewed, the evidence shows that A. E., J. M., and Q. E. (collectively the
“Patients”) are mentally incapacitated adults who were patients at Gateway. Gateway
is “a public agency and instrumentality of the State of Georgia” which provides “core
and specialty mental health, developmental disability and addictive diseases services
to citizens in Bryan, Camden, Chatham, Effingham, Glynn, Liberty, Long, and
McIntosh counties[.]” Gateway contracted with HCS for HCS to provide it with
personnel under specified terms through a Healthcare Staffing Agreement (the
“Staffing Agreement”). Through this arrangement, as will be discussed in greater
detail below, HCS hired Wilkins. In 2016, a co-worker of Wilkins reported that
Wilkins had been physically abusing Q. E. for some time, which resulted in Gateway
conducting an investigation through which the allegations of abuse were
substantiated. It was subsequently alleged that Wilkins also abused A. E. and J. M.,
and Wilkins’ employment was terminated. The legal guardians of the Patients filed
lawsuits against HCS due to the abuse its employee allegedly inflicted on the Patients
3
and the failure of its employees to report this abuse. Ultimately, HCS moved for
summary judgment on all of the claims against it, which the trial court denied in all
three cases. Following this Court’s grant of interlocutory review, HCS now appeals.
1. HCS contends that the trial court erred in denying its motions for summary
judgment as to the claims stemming from vicarious liability for the actions of its
employees because the borrowed servant doctrine precludes liability. We disagree.
All three appellees bring two claims which are premised on vicarious liability
for the actions of Wilkins and other HCS employees who were aware of his alleged
abuse and failed to timely report it: (1) assault and battery; and (2) fraud. HCS argues
that these claims must fail because of the borrowed servant exception to vicarious
liability.2
The ‘borrowed servant’ rule is an exception to the doctrine of respondeat
superior. If a master lends his servants to another, then the master is not
responsible for any negligence of the servant committed within the
scope of his employment by the other. In order for an employee to be a
borrowed employee, the evidence must show that (1) the special master
had complete control and direction of the servant for the occasion; (2)
the general master had no such control[;] and (3) the special master had
the exclusive right to discharge the servant.
2
This is the only argument advanced by HCS as to why these claims fail.
4
(Citations and punctuation omitted.) Odum v. Superior Rigging & Erecting Co., 291
Ga. App. 746, 748 (662 SE2d 832) (2008). “All three prongs of the test must focus
on the occasion when the injury occurred rather than the work relationship in
general.” Howard v. J.H. Harvey Co., 239 Ga. App. 677, 679 (1) (521 SE2d 691)
(1999). And, “where the contract between the two employers explicitly sets forth each
requirement of the borrowed servant doctrine, the contract between the parties is
controlling as to their responsibilities thereunder.” (Citation and punctuation
omitted.) Odum, 291 Ga. App. at 748. As to the third prong, the phrase “exclusive
right to discharge the servant” has been interpreted to mean the unilateral right to
discharge, as opposed to the sole right to discharge. Garden City v. Herrera, 329 Ga.
App. 756, 762 (1) (766 SE2d 150) (2014).
Pretermitting whether the borrowed servant doctrine applies to claims of
intentional torts such as the ones involved in this lawsuit, HCS fails the third prong
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of this analysis.3 Here, the Staffing Agreement4 provides as follows with regard to
termination of HCS employees placed at Gateway:
4.1 Requests for Removal or Transfer of Employees. [Gateway] may
request removal or transfer of [HCS] Personnel at any time, with or
without cause. Requests for removal or transfer may be made either
orally or in writing. All oral requests for removal must be confirmed by
[Gateway] in writing on the next business day to be effective.
4.2 Documentation of Terminations; Unemployment Compensation.
[Gateway] shall effectuate terminations of all Personnel and prepare
appropriate separation notices and other required documentation. [HCS]
shall also be responsible for compliance with applicable unemployment
compensation law, rules and regulations. (Emphasis supplied.)
...
3
Without specifically addressing whether the borrowed servant doctrine shields
a general master from liability for the intentional torts of its employees, this Court has
previously analyzed the applicability of the doctrine to a case involving intentional
torts. Howard, 239 Ga. App. at 680 (2) (rejecting application of the borrowed servant
doctrine in a case concerning assault and battery, false arrest, and intentional
infliction of emotional distress due to failure to establish the third prong).
4
Belatedly in the litigation in the trial court, appellees filed, with no legal
analysis, a “Supplemental Staffing Agreement” which precedes the Staffing
Agreement in time. In the briefing before this Court, the parties both rely on the
Staffing Agreement as the operative contract as opposed to the Supplemental Staffing
Agreement. Accordingly, we rely on the language of the Staffing Agreement in our
analysis as well.
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4. 5 Classification of Personnel. [HCS] shall have the sole authority
to hire and fire Personnel provided to [Gateway], and will be solely
responsible for payment of their wages, related payroll taxes, if any,
related unemployment contributions, and handling any of their
unemployment and workers’ compensation claims. . . . (Emphasis
supplied.)
Missing from the language of the Staffing Agreement is any requirement that
HCS honor the request of Gateway to terminate an employee. While the Staffing
Agreement specifies the steps HCS must take upon deciding to terminate an
employee, it does not specify that Gateway may unilaterally decide to terminate an
HCS employee providing services to Gateway. Indeed, the Staffing Agreement
specifically provides that HCS has the sole authority to fire employees it provides to
Gateway. Accordingly, the borrowed servant doctrine does not shield HCS from
vicarious liability for the actions of its employees, and the trial court did not err in
denying summary judgment to HCS in this regard.
2. HCS argues that the trial court erred in denying it summary judgment on
appellees’ negligent hiring and retention claims. We deem this enumeration
abandoned.
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Appellees contend that HCS was negligent in hiring Wilkins due to prior
violent felony convictions in his background as well as his inaccurate representation
of his educational background in his application. They also contend that HCS was
negligent in retaining Wilkins in light of the knowledge some of his co-workers had
of his purported abuse of the Patients.
On appeal, HCS dedicates minimal attention in its principal brief to counter
that the provisions of the Staffing Agreement gave Gateway authority as to who it
would hire, that Gateway specifically identified Wilkins as an individual to hire
outside of the typical recruitment protocol, and that HCS was not in charge of
supervising Wilkins. Neither HCS’ principal brief nor its reply brief contain any
citation to authority at all in support of this enumeration. As a result, left unaddressed
are pertinent legal questions such as the standards by which this Court analyzes
claims of negligent hiring and retention generally, the extent to which we can rely on
the obligations of the contract between HCS and Gateway to analyze any common
law duties owed by HCS to the Patients, appellees’ allegation that some of the
individuals who failed to properly supervise Wilkins were other employees of HCS,
or the degree to which provisions of the employee handbook are relevant to our
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analysis. Indeed, HCS’ briefing before the trial court lacked such legal authority as
well.
The rules of this Court are clear that “[a]ny enumeration of error that is not
supported in the brief by citation of authority or argument may be deemed
abandoned.” Court of Appeals Rule 25 (c) (2). It is not the job of this Court to find
legal authority to support a party’s claim of error, nor would it be appropriate for us
to do so. Accordingly, this enumeration is deemed abandoned. See Estate of Nixon
v. Barber, 340 Ga. App. 103, 110 (2) (796 SE2d 489) (2017) (“But we need not reach
the propriety of [appellees’s] contention and the trial court’s apparent grant of the
motion to dismiss on this ground because the [appellants] abandoned this
enumeration of error by failing to provide citation to authority in support of same.”)
(footnote omitted).
3. Lastly, HCS argues that the trial court erred in denying its motion for
summary judgment on appellees’ breach of contract claims. We agree.
“The questions presented by this [enumeration] require us to interpret the
contract between [HCS and Gateway]. The interpretation of a contract is normally a
question of law to be resolved by the court, and the orders of the lower court in this
9
case are therefore subject to de novo review.” Willesen v. Ernest Communications,
Inc., 323 Ga. App. 457, 459 (1) (746 SE2d 755) (2013).
As a general rule, one not in privity of contract with another lacks
standing to assert any claims arising from violations of the contract.
Nevertheless, OCGA § 9-2-20 (b) provides an exception to this general
rule insofar as the beneficiary of a contract made between other parties
for his benefit may maintain an action against the promisor on the
contract. A third-party beneficiary contract is one in which the promisor
engages to the promisee to render some performance to a third person.
(Citations and punctuation omitted.) Dominic v. Eurocar Classics, 310 Ga. App. 825,
828 (1) (714 SE2d 388) (2011). However, “in personal injury cases, an injured party
may not recover as a third-party beneficiary for failure to perform a duty imposed by
a contract unless it is apparent from the language of the agreement that the
contracting parties intended to confer a direct benefit upon the plaintiff to protect
him from physical injury.” (Citation and punctuation omitted; emphasis supplied.)
Anderson v. Atlanta Committee for the Olympic Games, Inc., 273 Ga. 113, 117 (4)
(537 SE2d 345) (2000). Indeed, here, the evidence must demonstrate that any benefit
conferred upon the Patients was intentional as opposed to incidental because “[t]he
mere fact that [they] would benefit from performance of the agreement is not alone
10
sufficient.” (Citation and punctuation omitted.) Armor Elevator Co. v. Hinton, 213
Ga. App. 27, 30 (2) (443 SE2d 670) (1994).
On appeal, appellees contend that “[t]he promise of [HCS] to Gateway was to
hire and lease qualified people to provide services to individuals such as [the
Patients]. Hence, [the Patients were] the beneficiar[ies] of the contractual obligations
of [HCS].” This argument appears to rely on the following sections of the Staffing
Agreement:
1.2 Recruiting of Qualified Personnel. [HCS] shall be responsible for
recruiting qualified candidates to fill open positions according to
[Gateway’s] job descriptions and requirements. [HCS] shall pre-screen
the candidates for employment with [Gateway] once qualified
candidates have been identified. Pertinent information on pre-screened
candidates will be reviewed with [Gateway] and [Gateway] will select
the pre-screened candidates they desire to interview and consider for
employment. [Gateway] will make the final selection of all candidates
to be offered available positions and determine the appropriate rate of
pay for each position. [HCS] shall then extend the offer of employment
to the candidate selected by [Gateway] at the chosen rate of pay and
upon acceptance of the offer shall employ the selected candidate.
...
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2.1 Qualifications. [HCS] shall provide [Gateway] Personnel who are
appropriately experienced and qualified to perform the services required
by [Gateway]. All professional Personnel provided by [HCS] will be
properly licensed, certified or registered to practice in the State of
Georgia and [HCS] will maintain appropriate documentation of their
applicable licensing, certification, registration, training, and experience.
These portions of the Staffing Agreement evince no intention to directly benefit
the Patients, and instead indicate merely incidental benefits from the placement of
qualified personnel at Gateway. Under our law, such an incidental benefit is
insufficient to confer third-party beneficiary status to the Patients, and thus the trial
court erred in failing to grant HCS summary judgment on this claim by the appellees.
See, e.g., CDP Event Svcs.v. Atcheson, 289 Ga. App. 183, 185 (1) (656 SE2d 537)
(2008) (finding language in a contract between a security company and the licensee
of a music venue requiring the security company to “prevent fights or other violent
acts among the patrons” was not sufficient to make a patron a third-party beneficiary
of the security contract because the contract did not specify a specific intention to
benefit the patrons) (emphasis omitted); Donnalley v. Sterling, 274 Ga. App. 683, 686
(1) (618 SE2d 639) (2005) (“While the members of the football team may have
incidentally benefitted from [an agreement between a football team and camp for the
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team to provide first aid services when using camp grounds], we find nothing in the
language indicating an intent to confer a direct benefit upon the individual players to
protect them from physical harm.”); Gay v. Ga. Dept. of Corr., 270 Ga. App. 17, 23-
24 (2) (606 SE2d 53) (2004) (“Furthermore, the Contract, when viewed as a whole,
tends to show that the Association’s safety-related promises are not intended to
benefit the inmates [on a work detail]. . . . The Association’s promise to provide a
safe workplace does arguably benefit prisoners assigned to the work details.
However, the benefit is incidental to the Contract.”) (citations and punctuation
omitted); Page v. City of Conyers, 231 Ga. App. 264, 266 (1) (a) (499 SE2d 126)
(1998) (finding language in a government contract that it “will benefit the county and
its residents” does not “evidence an intent to confer third-party rights upon [residents]
. . . [because p]ractically, every contract entered into by a county is for some public
benefit because the only business of the county is public business”) (citation omitted);
compare Green v. Pateco Svcs., LLC, 348 Ga. App. 132, 135 (1) (820 SE2d 285)
(2018) (finding that plaintiff, an employee of DDR, was a third-party beneficiary
because “the language of the contract between Pateco and DDR required Pateco to
report to DDR any problems or defects observed while maintaining the parking lot
and to do so ‘in a manner which will minimize health, safety, legal, and other risks
13
to Owner, and its respective employees, agents, guests, and invitees’”) (punctuation
omitted).
In summary, we affirm the trial court’s denial of summary judgment as to the
tort claims asserted by appellees and we reverse the trial court’s denial of summary
judgment as to the breach of contract claim.
Judgments affirmed in part and reversed in part, and cases remanded with
direction. Miller, P. J., and Pipkin, J., concur.
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