                               FOURTH DIVISION
                                DILLARD, C. J.,
                             RAY, P. J., and SELF, 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


                                                                  September 6, 2017




In the Court of Appeals of Georgia
 A17A1083. CITY OF KINGSLAND v. GRANTHAM.

      RAY, Presiding Judge.

      Destini Grantham brought this action against the City of Kingsland (the “City”)

and its police officer, Vincent Bryant, after she sustained injuries when a patrol car

driven by Officer Bryant collided with the car in which she was riding. The City

appeals from the denial of its motion for a partial judgment on the pleadings, arguing

that the trial court erred in concluding that Grantham’s claims against the City for

negligent training, negligent supervision, and negligent entrustment were not

redundant to her claims against the City for respondeat superior. For the following

reasons, we reverse.
      This Court reviews de novo a trial court’s decision on a motion for judgment

on the pleadings. Mills v. Allstate Ins. Co., 288 Ga. App. 257, 257-258 (XX) (2007).

When ruling on a motion for a judgment on the pleadings, the issue

      is whether the undisputed facts appearing from the pleadings entitle the
      movant to judgment as a matter of law. All well-pleaded material
      allegations by the nonmovant are taken as true. . . . Where the movant
      does not introduce affidavits, depositions, or interrogatories in support
      of the motion, such motion is the equivalent of a motion to dismiss the
      complaint for failure to state a claim upon which relief can be granted.
      The motion to dismiss should not be granted unless the averments in the
      complaint disclose with certainty that the plaintiff would not be entitled
      to relief under any state of facts which could be proved in support of the
      plaintiff’s claim.


(Citation omitted.) Mills, supra at 257-258.

      Grantham’s complaint alleges that on June 14, 2015, Destini Grantham was a

passenger in a vehicle driven by a non-party on I-95 in Camden County. At the same

time, Officer Bryant was “conducting radar speed detection on vehicles traveling on

I-95.” As Grantham’s vehicle approached Officer Bryant’s location on I-95, Officer

Bryant abruptly pulled out of the median and into the lane of travel occupied by

Grantham’s vehicle. As a result, Grantham’s vehicle struck Officer Bryant’s police

cruiser and then overturned. Grantham sustained injuries as a result of the collision.

                                          2
      Grantham sued Officer Bryant and the City to recover for her injuries.

Grantham’s complaint asserted claims for negligence and negligence per se under

various code sections, and contended that the City was vicariously liable for Officer

Bryant’s acts because he was acting in the course and scope of his employment.

Grantham also asserted a claim against the City for negligent training, negligent

supervision, and negligent entrustment of Bryant.

      The City filed a motion for partial judgment on the pleadings on Grantham’s

claim for negligent training, negligent supervision, and negligent entrustment. In that

motion, the City argued that the claims for negligent training, negligent supervision,

and negligent entrustment should be dismissed as redundant because they seek

recovery that is duplicative of that sought under respondeat superior. In her response,

Grantham argued that these claims should not be dismissed because the City’s

liability could differ from Officer Bryant’s under Georgia’s new apportionment

statute, OCGA § 51-12-33. The trial court entered an order denying the City’s motion

for partial judgment on the pleadings, but certified it for immediate review. This

Court granted the City’s application for an interlocutory appeal from that order.

      It is true that, prior to 2005, Georgia cases held that if a defendant employer

concedes that it will be vicariously liable under the doctrine of respondeat superior

                                          3
for the negligence of its employee, the employer is entitled to summary judgment on

the plaintiff’s claims for negligent entrustment, negligent hiring, negligent training,

and negligent supervision, unless the plaintiff has also brought a valid claim for

punitive damages against the employer for its own independent negligence

(hereinafter, the “Respondeat Superior Rule”). See Kelley v. Blue Line Carriers, LLC,

300 Ga. App. 577, 580 (2) (685 SE2d 479) (2009); Durben v. American Materials,

Inc., 232 Ga. App. 750, 751 (1) (503 SE2d 618) (1998); Bartja v. Nat. Union Fire Ins.

Co. of Pittsburgh, Pa., 218 Ga. App. 815, 817 (2) (463 SE2d 358) (1995). The

rationale underlying the Respondeat Superior Rule “is that, since the employer would

be liable for the employee’s negligence under respondeat superior, allowing claims

for negligent entrustment, hiring, and retention would not entitle the plaintiff to a

greater recovery, but would merely serve to prejudice the employer.” (Citation

omitted.) Durben, supra. Such prejudice could be caused by, inter alia, allowing the

introduction of unfairly prejudicial information about the employee’s prior

employment history. See Kelley, supra. That line of cases held that “[w]here no

punitive damages are sought, . . . a defendant employer’s admission of liability under

respondeat superior establishes the liability link from the negligence of the driver .



                                          4
. . rendering proof of negligent entrustment unnecessary and irrelevant.” Bartja,

supra.

         In 2005, the Georgia General Assembly enacted tort reform legislation. Laws

2005, Act 1 §12. As part of that reform, the General Assembly passed Georgia’s

apportionment statute, OCGA § 51-12-33, eliminating joint and several liability.

Georgia’s apportionment statute, OCGA § 51-12-33 (b), states in pertinent part:

         Where an action is brought against more than one person for injury to
         person or property, the trier of fact . . . shall . . . apportion its award of
         damages among the persons who are liable according to the percentage
         of fault of each person. Damages apportioned by the trier of fact as
         provided in this Code section shall be the liability of each person against
         whom they are awarded, shall not be a joint liability among the persons
         liable, and shall not be subject to any right of contribution.


OCGA § 51-12-33 (b). See also McReynolds v. Krebs, 290 Ga. 850. 852 (1) (b) (725

SE2d 584) (2012). Accordingly, the General Assembly has now expressly determined

that fault must be apportioned between all negligent parties whose negligence caused

or contributed to cause a plaintiff’s injuries.

         Grantham argues, and the trial court agreed, that in the wake of Georgia’s

abolishment of joint and several liability through the enactment of the apportionment

statute, OCGA § 51-12-33 (b), the Respondeat Superior Rule is no longer applicable.

                                               5
In support of this argument, Grantham cites to Little v. McClure, 2014WL 4276118

(M.D. Ga., decided August 29, 2014). In Little, the United States District Court for

the Middle District of Georgia held that Georgia’s apportionment statute superseded

the Respondeat Superior Rule. The Little court held that “[b]ecause the jury must

apportion separate percentages of damages to each party at fault [under OCGA § 51-

12-33 (b)], the employer’s liability will no longer necessarily be coextensive with the

employee’s simply because respondeat superior applies.” (Emphasis omitted.) Id. at

*3 (II) (B). That court explained that

      [u]nder a system of joint and several liability, both the employer and
      employee would be liable for the entire amount of the plaintiff’s
      damages if respondeat superior applies, regardless of whether the
      employer was also independently negligent. However, under Georgia’s
      apportionment statute, an employer would be separately responsible for
      its degree of fault, if any, based on its independent negligence. A
      defendant is only liable for the percentage of a plaintiff’s damages
      attributable to his apportioned fault, so the employee’s negligence (for
      which the employer would be liable by virtue of respondeat superior)
      would be apportioned separately from the employer’s independent
      negligence. See OCGA § 51-12-33 (b).




                                          6
(Emphasis omitted.) Id.1

       However, in Schreckengast v. Carollo, 2017 WL 2702543 (S. D. Ga., decided

June 22, 2017), the United States District Court for the Southern District of Georgia

declined to extend the holding in Little, supra, and found that the plaintiff’s negligent

hiring claim was redundant to the plaintiff’s claim for respondeat superior in that

case. Id. at *2-*3 (II) (A). Accord Downer v. Boyer, 2017 WL 1093167, *2 (III) (N.

D. Ga., decided March 23, 2017) (“Under Georgia law, respondeat superior and

negligent hiring, training, and supervision are mutually exclusive theories of

liability”).

       “As a state appellate court, we are not bound by the decisions of the federal

district courts. To the contrary and as a general matter, this Court adopts such federal

decisions only when they are not in conflict with our own legal precedent.” (Citations

and punctuation omitted.) RES-GA Hightower, LLC v. Golshani, 334 Ga. App. 176,

180 (1) (a), n. 8 (778 SE2d 805) (2015). Accordingly, we decline to adopt the

reasoning set forth in Little, supra, because we are bound by this Court’s recent

       1
        See Alfano, Jr., Michael David, EMPLOYER ESCAPE HATCH CLOSED IN
GEORGIA: HOW THE INTERPRETATION OF GEORGIA’S APPORTIONMENT STATUTE IN
ZALDIVAR PROHIBITS EMPLOYERS FROM USING RESPONDEAT SUPERIOR TO ESCHEW
DIRECT NEGLIGENCE CLAIMS, 50 Ga. L. Rev. 1233, 1249-1255 (III) (A)-(B) (Summer
2016) for a discussion of the Little, supra, and conflicting case law.

                                           7
decision in Hospital Auth. of Valdosta/Lowndes County v. Fender, __ Ga. App. __

(802 SE2d 346) (2017), which rejected it. Id. at *8 (2), n. 4. In Fender, supra, this

Court considered the issue of whether the 2005 passage of Georgia’s apportionment

statute superseded the Respondeat Superior Rule. Id. at *7-*8 (2). In concluding that

it did not, this Court ruled that claims based on respondeat superior and claims based

upon negligent hiring, supervision, and retention of an employee “are derivative of

the underlying tortious conduct of the employee. Thus, where, as here, the employer

has admitted respondeat superior liability and the plaintiff is not seeking punitive

damages, the claims for negligent hiring, training, supervision, and retention are

merely duplicative of the respondeat superior claim.” (Citations and punctuation

omitted.) Fender, supra at *8 (2).

      In the instant case, the City admitted that Officer Bryant was acting within the

scope of his employment at the time of the accident. Thus, a factual basis for

respondeat superior has been admitted. Further, Grantham has no valid claim for

punitive damages since punitive damages are not allowed against a governmental

entity. See Metro. Atlanta Rapid Transit Auth. v. Boswell, 261 Ga. 427, 427-428 (405

SE2d 869) (1991). As we are bound by this Court’s ruling in Fender, supra, that the

Respondeat Superior Rule has not been nullified by the 2005 passing of Georgia’s

                                          8
apportionment statute, we reverse the trial court’s denial of the City’s motion for a

partial judgment on the pleadings.

      Judgment reversed. Dillard, C. J., and Self, J., concur.




                                         9
