                              FIFTH DIVISION
                              DILLARD, C. J.,
                          REESE, J., and COOMER, J.

                   NOTICE: Motions for reconsideration must be
                   physically received in our clerk’s office within ten
                   days of the date of decision to be deemed timely filed.
                               http://www.gaappeals.us/rules


                                                                   February 5, 2019




In the Court of Appeals of Georgia
 A16A0772. LUCAS v. BECKMAN COULTER, INC. et al.

      DILLARD, Chief Judge.

      In this civil action, Claude Lucas sued Beckman Coulter, Inc. (“BCI”) and its

employee, Jeremy Wilson, alleging that the defendants are liable for injuries he

suffered when Wilson accidentally shot him with a handgun while on a service call

for BCI at Lucas’s place of employment. Following discovery, BCI moved for

summary judgment, which the trial court granted. On appeal, Lucas contends that the

trial court erred in granting summary judgment, arguing that BCI is not immune from

firearm-related tort liability under OCGA § 16-11-135 and that genuine issues of

material fact remain as to whether BCI is liable for Wilson’s negligent conduct under

theories of respondeat superior and negligent supervision.
      In our previous decision in this matter, we held that the trial court did not err

in finding that, under these particular circumstances, BCI was immune from firearm-

related tort liability under OCGA § 16-11-135 (e) (2) and granting summary judgment

in its favor on that ground.1 Consequently, we did not address Lucas’s remaining

claims of error.2 But after granting Lucas’s petition for certiorari in Lucas v. Beckman

Coulter, Inc.,3 the Supreme Court of Georgia reversed our decision, holding that

“[OCGA § 16-11-135 (e)] cannot be construed as providing immunity to this case.”4

Thus, our Supreme Court remanded the case and instructed this Court to address

Lucas’s assertion that the trial court erred in granting summary judgment to BCI on

his claims of liability under theories of respondeat superior and negligent

supervision.5 For the reasons set forth infra, we adopt the judgment of the Supreme

Court, and affirm the trial court’s ruling granting summary judgment to BCI as to

both of Lucas’s vicarious liability claims.

      1
          Lucas v. Beckman Coulter, Inc., 339 Ga. App. 73, 78 (1) (793 SE2d 119)
(2016).
      2
          Id. at 78-79 (2).
      3
          303 Ga. 261 (811 SE2d 369) (2018).
      4
          Id. at 264.
      5
          Id. at 265.

                                           2
      Viewed in the light most favorable to the nonmovant (i.e., Lucas),6 the record

shows that BCI is a company based out of Southern California that develops,

manufactures, markets, and services biomedical testing equipment for medical

facilities. In furtherance of this business, BCI employs field-service engineers, whose

responsibilities include traveling to clients’ medical facilities, usually in a vehicle

provided by BCI, and performing onsite maintenance and repair of BCI equipment.

At the time of the incident giving rise to this case, Wilson had been employed as a

field-service engineer for BCI since 1999, and serviced accounts in South Georgia,

including the Albany area.

      On July 10, 2013, Wilson traveled in a company van to the Albany Area

Primary Healthcare (“AAPH”) facility to perform maintenance work on BCI

equipment. Upon arriving at the facility around 10:00 a.m., Wilson entered and saw

that the equipment he was there to service was currently in use and, thus, he could not

immediately begin working on it. Consequently, Wilson went back outside to the

facility’s parking lot where he found Lucas—an AAPH lab technician he had known

      6
        See Martin v. Herrington Mill, LP, 316 Ga. App. 696, 697 (730 SE2d 164)
(2012) (“[A] de novo standard of review applies to an appeal from a grant or denial
of summary judgment, and we view the evidence, and all reasonable conclusions and
inferences drawn from it, in the light most favorable to the nonmovant.” (punctuation
omitted)).

                                          3
for several years—taking a personal break. After chatting for a few minutes, the two

men started heading back toward the facility, at which point Lucas mentioned that

several vehicles in the parking lot had been broken into recently. This information

concerned Wilson because, although doing so violated company policy, he regularly

took his personal handgun with him while traveling for BCI. And now worried that

his handgun might be stolen, Wilson retrieved it from the van and followed Lucas

back toward the entrance of the medical facility. Then, shortly after entering the

building, Wilson attempted to clear the weapon, but as he did, the gun discharged,

striking Wilson in the hand and Lucas in the abdomen. Emergency medical personnel

quickly arrived, and both men were transported to a local hospital for treatment. Two

days later, BCI terminated Wilson’s employment for violating company policy by

transporting his handgun in a company vehicle.

      Thereafter, Lucas filed a lawsuit against Wilson and BCI, alleging that

Wilson’s negligence resulted in his injuries and that BCI was liable for Wilson’s

conduct under theories of respondeat superior and negligent supervision. BCI

answered and, following discovery, filed a motion for summary judgment, arguing

that, as a threshold matter, it was immune from firearm-related tort liability under

OCGA § 16-11-135, and that, regardless, it was not liable under Lucas’s claims of

                                         4
respondeat superior or negligent supervision. Lucas responded, and the trial court

held a hearing on the matter, after which it granted summary judgment in favor of

BCI as to all of Lucas’s claims. This appeal follows.

      Summary judgment is proper “if the pleadings, depositions, answers to

interrogatories, and admissions on file, together with the affidavits, if any, show that

there is no genuine issue as to any material fact and that the moving party is entitled

to a judgment as a matter of law.”7 If summary judgment is granted by a trial court,

it enjoys no presumption of correctness on appeal, “and an appellate court must

satisfy itself de novo that the requirements of OCGA § 9-11-56 (c) have been met.”8

Moreover, in our de novo review of a trial court’s grant of a motion for summary

judgment, we are charged with “viewing the evidence, and all reasonable conclusions

and inferences drawn from the evidence in the light most favorable to the

nonmovant.”9 With these guiding principles in mind, we turn now to Lucas’s specific

claims of error.



      7
          OCGA § 9-11-56 (c).
      8
          Cowart v. Widener, 287 Ga. 622, 624 (1) (a) (697 SE2d 779) (2010).
      9
       Holcomb v. Long, 329 Ga. App. 515, 517 (765 SE2d 687) (2014) (punctuation
omitted).

                                           5
      1. As noted in our previous decision, Lucas contends that the trial court erred

in granting summary judgment, arguing that, under the circumstances at issue here,

BCI is not immune from firearm-related tort liability under OCGA § 16-11-135. And

as noted supra, the Supreme Court of Georgia has now held that “[OCGA § 16-11-

135 (e) cannot be construed as providing immunity to this case.”10 Accordingly, we

adopt the judgment of the Supreme Court in this regard and hold that the trial court

erred in granting summary judgment to BCI on this ground.

      2. Lucas also contends that the trial court erred in granting summary judgment

in favor of BCI because genuine issues of material fact remain as to whether BCI is

liable for Wilson’s negligent conduct under the theory of respondeat superior. We

disagree.

      It is well established that two elements must be present to render a master liable

for his servant’s actions under respondeat superior: first, the servant must be in

furtherance of the master’s business; and, second, he must be acting within the scope

of his master’s business.11 Specifically, if a tort is committed by an employee not by

reason of the employment, but “because of matters disconnected therewith, the

      10
           Lucas, 303 Ga. at 264.
      11
           Piedmont Hosp. v. Palladino, 276 Ga. 612, 613 (580 SE2d 215) (2003).

                                          6
employer is not liable.”12 Importantly, summary judgment for the master is

appropriate when “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.”13 But

the question of whether “the servant at the time of an injury to another was acting in

the prosecution of his master’s business and in the scope of his employment is for

determination by the jury, except in plain and indisputable cases.”14

      Here, despite the fact that he traveled to AAPH to perform maintenance work

on behalf of BCI, Wilson’s specific acts of transporting his personal handgun in a

company vehicle, retrieving the weapon from the vehicle based on his fear that it

might be stolen, and then taking it into his client’s facility were not connected to or

in furtherance of his duties and responsibilities at BCI and, therefore, he abandoned




      12
          Id. (punctuation omitted); see Brownlee v. Winn-Dixie Atlanta, 240 Ga. App.
368, 369 (1) (523 SE2d 596) (1999) (“If a servant steps aside from his master’s
business to do an act entirely disconnected from it, and injury to another results from
the act, the servant may be liable, but the master is not liable.”).
      13
           Brownlee, 240 Ga. App. at 369 (1) (punctuation omitted).
      14
           Drury v. Harris Ventures, Inc., 302 Ga. App. 545, 546-47 (1) (691 SE2d 356)
(2010).

                                           7
BCI’s business when he engaged in such conduct.15 In fact, Wilson was well aware

that transporting his handgun in BCI’s company vehicle violated company policy.

Regardless, he chose to do so and then took his weapon into a client’s facility for


      15
         See id. at 547-48 (1) (holding that employer was not liable under respondeat
superior doctrine for injuries sustained by plaintiff during attack by employee, who
grew aggravated with plaintiff’s critique of employee’s work because such conduct
was not in scope of employment or in furtherance of employer’s business); Dowdell
v. Krystal Co., 291 Ga. App. 469, 470-71 (1) (662 SE2d 150) (2008) (holding that
restaurant was not liable under theory of respondeat superior for employee’s fistfight
with plaintiff because act of fighting with plaintiff was not connected to or in
furtherance of employee’s duties); Brownlee, 240 Ga. App. at 369 (1) (finding that
engaging in horseplay and spraying mace was not connected with employee’s
bag-boy duties, and thus, grocery store was not liable to plaintiff injured by employee
under respondeat superior); Morrison v. Anderson, 221 Ga. App. 396, 397 (2) (471
SE2d 329) (1996) (holding that bar was not liable to plaintiff under a theory of
respondeat superior because although bar’s waitress followed plaintiff outside to
collect money from another patron, her hugging plaintiff, which caused him to fall off
a loading dock, was disconnected from bar’s business); Worstell Parking v. Aisida,
212 Ga. App. 605, 606 (1) (442 SE2d 469) (1994) (ruling that defendant’s parking
lot attendant’s altercation with plaintiff and her boyfriend over boyfriend’s failure to
tip was not connected to attendant’s duties for defendant). Cf. Davis v. Childers, 134
Ga. App. 534, 535 (7) (215 SE2d 297) (1975) (holding that summary judgment was
not warranted because factual issue existed concerning whether employee of gas
station, who shot customer prior to actually beginning work but while preparing to
go on duty, was acting in the scope of employer’s business given that employer
encouraged employee to carry gun for his protection while at work); Am. Oil Co. v.
McCluskey, 119 Ga. App. 475, 476-79 (1) (a) (167 SE2d 711) (1969) (holding that
summary judgment for employer was not warranted when evidence showed that
employee carried the pistol with which he accidentally shot the plaintiff for the dual
purpose of defending himself and protecting money and other property entrusted to
his care by his employer).

                                           8
purely personal reasons rather than for any purpose beneficial to BCI.16 Given these

particular circumstances, the trial court did not err in granting summary judgment to

BCI on Lucas’s respondeat superior theory.

      3. Lucas further contends that the trial court erred in granting summary

judgment in favor of BCI because genuine issues of material fact remain as to

whether BCI is liable for Wilson’s negligent conduct under the theory of negligent

supervision. Again, we disagree.

      OCGA § 34-7-20, in part, provides that an “employer is bound to exercise

ordinary care in the selection of employees and not to retain them after knowledge of

incompetency. . . .” Additionally, the Supreme Court of Georgia has more specifically

held that a defendant employer has “a duty to exercise ordinary care not to hire or

retain an employee the employer knew or should have known posed a risk of harm

to others [when] it is reasonably foreseeable from the employee’s tendencies or

propensities that the employee could cause the type of harm sustained by the


      16
         Dowdell, 291 Ga. App. at 471 (1) (finding that restaurant employee fought
with plaintiff for purely personal reasons and therefore restaurant was not liable under
a respondeat superior theory); Aisida, 212 Ga. App. at 606 (1) (finding that the
parking attendant’s altercation with plaintiff and her boyfriend appeared to have been
purely personal and not for any purpose beneficial to defendant, and thus, summary
judgment for defendant was warranted).

                                           9
plaintiff.”17 Indeed, the employer is “subject to liability only for such harm as is

within the risk.”18 And importantly, our Supreme Court has already rejected

“[plaintiff’s] ‘but for’ argument that [the employer] is liable for the negligent hiring

or retention of [the tortfeasor] solely because his employment by [the employer]

provided [the tortfeasor] with the access or opportunity to injure [plaintiff].”19

      In this matter, there is no evidence that Wilson previously engaged in the type

of conduct that resulted in Lucas’s injury. Nevertheless, in support of his argument

that the trial court erred in granting summary judgment as to this claim, Lucas points

to Wilson’s deposition testimony, in which he asserted that his immediate supervisor

and two other co-workers were aware that he kept his handgun in the company




      17
        Munroe v. Universal Health Servs., 277 Ga. 861, 863 (1) (596 SE2d 604)
(2004) (punctuation omitted); accord Dowdell, 291 Ga. App. at 472 (3); see Leo v.
Waffle House, Inc., 298 Ga. App. 838, 841 (2) (681 SE2d 258) (2009) (“An employer
may be held liable for negligent supervision only where there is sufficient evidence
to establish that the employer reasonably knew or should have known of an
employee’s tendencies to engage in certain behavior relevant to the injuries allegedly
incurred by the plaintiff.” (punctuation omitted)).
      18
        Munroe, 277 Ga. at 863 (1) (punctuation omitted) (citing Restatement
(Second) of Agency, § 213 Comment (d).
      19
           Id.

                                          10
vehicle. But assuming, as we must, that Wilson’s testimony is truthful and accurate,20

carrying a handgun in one’s vehicle is not remotely similar to the conduct that lead

to Lucas’s injury, and there is no evidence that BCI should have anticipated such

conduct. In fact, Wilson further testified in his deposition that he had never

previously taken his handgun inside any client’s workplace.

      Lucas also argues that BCI should have been aware of the risk posed by Wilson

in light of deposition testimony by of one of his co-workers, claiming that two of

BCI’s clients—at some point many years before the incident—requested that service

engineers other than Wilson perform the maintenance work on their equipment. But

this same co-worker also acknowledged that he did not know the reasons for these

requests, and “it is well settled that summary judgment cannot be avoided based on

speculation or conjecture[.]”21 Given these particular circumstances, there is no

evidence that Wilson ever engaged in any sort of reckless conduct around fellow

employees or clients, much less any sort of conduct resembling that which injured




      20
           See supra note 6.
      21
        Navy Fed. Credit Union v. McCrea, 337 Ga. App. 103, 106 (1) (786 SE2d
707) (2016) (punctuation omitted).

                                         11
Lucas.22 The trial court did not err, then, in granting summary judgment to BCI as to

Lucas’s negligent supervision claim.

      In summary, although the trial court erred in construing OCGA § 16-11-135

to find that BCI was immune from firearm-related tort liability as a threshold matter

in this case (as we did in our initial opinion), the court correctly ruled that no genuine

issues of material fact supported Lucas’s actual tort claims based on respondeat

superior and negligent supervision. Accordingly, the trial court did not err in

ultimately granting summary judgment in favor of BCI.23

      Judgment affirmed. Reese and Coomer, JJ., concur.




      22
         See Leo, 298 Ga. App. at 841 (2) (ruling that restaurant employee’s conduct
in preparing a concoction containing corrosive dishwasher detergent and daring
plaintiff to drink it, resulting in injuries to plaintiff, did not give rise to actionable
negligent supervision claim against restaurant, absent evidence that restaurant knew
or should have known that employee had engaged in such reckless behavior
previously); Dowdell, 291 Ga. App. at 473 (3) (holding that summary judgment was
proper as to plaintiff’s negligent hiring and retention claim because there was no
evidence that employee had ever shown any propensity to argue with, much less
harm, customers during the tenure of his employment, and, thus, plaintiff failed to
present evidence that restaurant should have known employee posed any risk).
      23
         See Banks v. Brotherhood Mut. Ins. Co., 301 Ga. App. 101, 104 (2) (686
SE2d 872) (2009) (“A grant of summary judgment must be affirmed if right for any
reason. It is the grant itself that is to be reviewed for error, and not the analysis
employed.” (punctuation omitted)).

                                           12
