With job perils aplenty, sanitation workers have to be careful. Someone even casually familiar with waste and recycling collection understands that it is a vital service performed under precarious conditions. Besides the risks from handling heavy loads in all kinds of weather, workers may be struck by passing vehicles, injured from falls or from concealed harmful objects, exposed to hazardous materials, and even attacked by foraging animals.
On the flip side, a homeowner might strain their back while lifting a container or slip and fall on their way to the curb. But aside from these common mishaps, does anyone think for a minute that placing items for collection could be dangerous? What’s the likelihood that an encounter with a collection worker could send a homeowner to the hospital? On this, a Georgia couple has a story to tell.
Advanced Disposal Services Atlanta (ADS) provides garbage and recycling pickup services to Mark Marczak and his wife. On a sunny day in March, 2018, Marczak set down a bin of recyclable material by the curb outside of his house for collection. He also put an extra bag of recyclables on top of the bin. At some point, however, a wind gust blew the bag off of the bin and onto the Marczaks' driveway, where it remained.
Later, an ADS recycling truck driven by Lorenzo Bucknor arrived at the Marczak house. Bucknor retrieved the recyclables from their bin, but he did not pick up the loose bag of recycling from the driveway, which, strictly speaking, was not “curbside” and thus not where recyclables had to be placed for collection. The truck had moved a short distance down the street when Marczak noticed that the bag was still on the driveway. He went outside and called out “[t]his goes too,” tossing the bag toward Bucknor who was emptying a bin at a neighboring house. Bucknor replied with an expletive, left the bag on the ground, and got into the cab of his truck.
“No, you take it, it's your job,” yelled Marczak as he threw the bag into the driver's side of the truck cab. Bucknor then jumped out of the truck and hit Marczak in the face. He then returned to the truck cab briefly, but, apparently still enraged, got out again and hit Marczak several more times, leaving him unconscious and face-down on the driveway. Marczak awakened approximately 15 minutes later. By then, police and emergency personnel had arrived, and he was taken to the hospital.
Marczak and his wife sued Bucknor and ADS for damages resulting from his injuries. With respect to ADS, they alleged that the company was vicariously responsible for Bucknor's actions under the theory of respondeat superior. (Respondeat superior – loosely translated from the Latin as “the boss takes the heat” – is a legal doctrine holding an employer liable for the acts of its employees committed in the course of their employment.) The lawsuit also alleged that ADS was directly liable for negligently training and negligently keeping Bucknor on the job.
Taking the position that all critical facts were undisputed and favored the company, ADS moved for summary judgment in its favor, arguing that it was not liable for Bucknor's actions or the Marczaks' damages. The trial court subsequently agreed with ADS on the negligent retention claim, but denied the company judgment as to respondeat superior and negligent training. ADS appealed that adverse ruling. For their part, the Marczaks cross-appealed, challenging the grant of summary judgment on their negligent retention claim.
Under the law in Georgia and most other jurisdictions, an employer is responsible for the conduct of an employee acting within the scope of the employer's business. However, if the employee injures someone or damages property for reasons unrelated to that employment (e.g., for purely personal reasons) the employer is not liable. Whether an employee has acted within the scope of his employment is determined after a trial before a judge or jury, except where the circumstances are unequivocal.
Open and shut, Bucknor was carrying out his ADS duties when he first encountered Marczak. ADS contended, however, that Bucknor suddenly "abandoned” ADS's business of collecting recyclables when he engaged in a physical altercation after Marczak tossed a bag at him. The appeals court was not persuaded.
“It appears that Bucknor's original decision to hit Marczak was a personal reaction to Marczak's conduct,” the opinion stated, and quoting from Bucknor’s testimony: "[Marczak] hit me with the [bag] - you know, I hit him back." However, Bucknor retreated to his truck briefly after that first blow. He then got out of the truck, re-engaged in the altercation, and continued to hit Marczak, causing Marczak to fall and suffer injuries. When asked why he re-engaged, Bucknor testified that he was afraid Marczak would attack him as he tried to finish his recycling route: “I had got out [of the truck] initially and, you know, I had - because he hit me, so I hit him, so now he's walking away, so - and I'm in the area, I've got to finish this whole neighborhood, so I was thinking that he, I don't know, was going to get a weapon or something, honestly, and follow me or something. So yeah, I still felt like I was in danger. He's at home, you know, and I don't know what he's going to get.”
As the appellate panel saw it, Bucknor’s testimony left open the question of whether his actions were purely personal or in some way connected with his desire to finish his recycling route. Whether or not Bucknor “may have been motivated, in part, by personal malice,” a jury could conclude that [he] acted "within the scope of [ADS's] business and in furtherance of its interests," the panel said. For these reasons, the trial court was correct in denying ADS's motion for summary judgment on the respondeat superior claim.
ADS also argued that it was entitled to a ruling tossing out the Marczaks' negligent training claim without a full trial. To establish a negligent training claim, Georgia courts require a plaintiff to demonstrate that inadequate direction and guidance caused a reasonably foreseeable injury. According to ADS, Bucknor's violent response to Marczak was neither reasonably foreseeable nor causally linked to any allegedly inadequate training. The trial judge rejected these contentions, finding that a jury must decide whether ADS properly prepared Bucknor with respect to customer interactions. The appeals court agreed.
ADS's Director of Human Resources testified that drivers are "trained to stay in the truck, roll the windows up, lock the door, contact their supervisor and not to have any altercations with customers." However, Bucknor told a different story. His training related solely to "operation of the truck," focusing on "the ins and outs of the truck compartments, how to pre-trip, post-trip, proper fuels to put in there, how to run the route, stuff like that[.]" ADS’s legal position got no help from Bucknor's operations manager and his supervisor who similarly testified that drivers received no specific training on customer interactions, although a culture of treating customers with respect and professionalism existed, and that drivers were coached about a situation where a customer complained.
“Given this testimony, questions of fact exist as to (1) whether driver-customer confrontations were reasonably foreseeable to ADS; (2) whether Bucknor received the training described by ADS's Human Resources Director regarding how to respond to such confrontations; and (3) whether the training he actually received was adequate,” the appellate panel said. “Factual issues also remain as to the foreseeability of Bucknor's conduct.”
Things don’t look good for the company in the long run based evidence turned up in the trial court proceedings. In February 2018, approximately six weeks before Bucknor's altercation with Marczak, his supervisors confronted him about his failure to perform certain work duties. He responded by arguing and cursing, "became unruly" and walked out of the office. When one of the supervisors followed him, Bucknor told the supervisor "not to walk behind him, he isn't one to be messed with."
Playing down the incident, ADS insisted it provided no notice that Bucknor would hit a customer multiple times outside of the customer's home, adding that Bucknor had no criminal record and that a background check revealed no violent propensities. But that was beside the point. “The Marczaks, however, were not required to prove the foreseeability of the particular consequences of Bucknor's behavior or the precise injuries sustained by Marczak,” the panel declared. “Based on this evidence, a jury could conclude that Bucknor had a similar aggressive response when Marczak confronted him about failing to pick up the bag of recycling. * * *
Although the February 2018 situation did not involve violence, a question of fact remains as to whether ADS should have anticipated that Bucknor would react physically to someone who, like Marczak, continued to ‘mess’ with him.”
The Marczaks argued that the trial court was wrong in granting summary judgment to ADS on the negligent retention claim. Under well-established court precedents in Georgia, an employer’s liability for negligent retention arises when it keeps an employee whom the employer knew or should have known posed a risk of harm to others where it is reasonably foreseeable from the employee's tendencies or propensities that the employee could cause the type of harm sustained by a plaintiff. Indeed, state law expressly requires an employer “to exercise ordinary care in the selection of employees and not to retain them after knowledge of incompetency." Ga. Code Ann. § 34-7-20.
“To avoid summary judgment on this claim, the Marczaks needed to present evidence that ADS retained Bucknor as an employee, despite either actual or constructive knowledge that he posed a reasonably foreseeable risk of causing the type of harm suffered by the Marczaks,” the opinion stated. “The trial court concluded that ADS had no such knowledge here. * * * [H]owever, Bucknor's February 2018 response to his supervisor creates factual questions as to ADS's knowledge, particularly as to whether ADS should have anticipated that Bucknor would react violently and aggressively during an extended confrontation regarding his work performance. Given the factual issues, the jury must resolve this question of knowledge.”
The Marczaks’ claims have survived these initial challenges. The case will proceed to trial unless the parties reach a settlement.
Advanced Disposal Services Atlanta, LLC v. Marczak et al.; and vice versa, Nos. A21A0180, A21A0181, Ga. Ct. App., April 8, 2021.