dissenting.
Crane Brothers is not being subjected to punitive damages for any act or omission it committed. Rather, it is being held liable for punitive damages based solely on the wrongful acts of its employee. Under long-established Georgia law, the jury would be able to consider the wrongdoer’s prior criminal conviction for the same conduct in deciding whether to impose additional punishment in the form of punitive damages. Because the majority places Crane Brothers in a worse position in a tort action than the wrongdoing employee would have been, I dissent.
For all causes of action arising after April 14, 1997, Georgia’s punitive damages statute allows punitive damages only in tort actions “in which it is proven by clear and convincing evidence that the defendant’s actions showed willful misconduct, malice, fraud, wantonness, oppression, or that entire want of care which would raise the presumption of conscious indifference to consequences.”4 Although May’s cause of action arose after April 14, 1997, his claim for punitive damages does not rest on any act or omission by the employer. He made no claim for negligent hiring, supervision, retention, or any other theory that involved wrongdoing on Crane Brothers’ part.5
Rather, May’s claim for punitive damages is based entirely on the acts of a Crane Brothers’ employee, who assaulted and battered May, and May imputes that employee’s wrongdoing to Crane Brothers under the doctrine of respondeat superior.6 Contrary to the majority’s view, punitive damages are intended to punish and deter both *283conduct and defendants. Specifically, punitive damages are intended to “punish, penalize, or deter” a defendant from engaging in particularly egregious tortious conduct.7 Here, however, the defendant is not facing punitive damages because it engaged in any wrongdoing; instead, it is liable only because it employed the person who committed the tortious conduct. Thus, as the court of appeals correctly noted, Crane Brothers is being subjected to punitive damages solely for the conduct of its employee and not for anything that it has done.
Decided March 3, 2003. Healy & Svoren, Timothy P. Healy, for appellant. Stockton & Stockton, L. Allyn Stockton, Jr., for appellee.Since 1857, the law in Georgia has been that a person may show the jury in a civil action that he has already been punished by the criminal justice system for the same conduct that is the basis for imposing punitive damages.8 If May had sued the employee who had attacked him, that employee would be able to offer his criminal conviction in mitigation (not exoneration) of any punitive damages that a jury may be inclined to impose. Likewise, if an employer is going to be subjected to damages that are designed to punish, penalize, or deter based solely on its employee’s wrongful conduct, then the employer should be able to present the same evidence of mitigation that the actual wrongdoer is entitled to present. Otherwise, there is no reasoned ground for holding the employer liable for punitive damages when the sole basis for imposing punitive damages is the employee’s wrongdoing.
OCGA § 51-12-5,1 (b) (emphasis supplied), (h).
In this case, one of the tortfeasor-employees was a part-owner of Crane Brothers. Neither tortfeasor was discharged following the assaults.
Brown v. Who’s Three, Inc., 217 Ga. App. 131, 132 (457 SE2d 186) (1995) (“The negligence of the master [in a respondeat superior case] is entirely derivative from the servant’s negligence.”).
OCGA § 51-12-5.1 (b), (c).
Cherry v. McCall, 23 Ga. 193 (1857); Cheevers v. Clark, 214 Ga. App. 866, 869 (449 SE2d 528) (1994); White v. Taylor, 157 Ga. App. 328, 329 (277 SE2d 321) (1981).