But, these too are questions of fact for the jury. U. S. Shoe Corp. v. Jones , 149 Ga. App. 595, 597 (2), 255 S.E.2d 73 (1979) ("The determination of whether the defendant acted with reasonable prudence or whether the manner and length of the detention were reasonable were matters for the jury, not the court, to determine."); see also Simmons v. Kroger Co. , 218 Ga. App. 721, 723 (2), 463 S.E.2d 159 (1995) ("This court has repeatedly held that a determination of whether the merchant acted reasonably is a matter for jury consideration."), overruled on other grounds by Ferrell , 295 Ga. App. at 333 (2), 672 S.E.2d 7 ; Todd v. Byrd , 283 Ga. App. 37, 45-46 (6), 640 S.E.2d 652 (2006) (factual question for the jury where employees suspected the girl shoplifted some clothing), overruled on other grounds by Ferrell , 295 Ga. App. at 333 (2), 672 S.E.2d 7 ; Williams v. Food Lion, Inc. , 213 Ga. App. 865, 865-866 (2), 446 S.E.2d 221 (1994) ; Fields v. Kroger Co. , 202 Ga. App. 475, 414 S.E.2d 703 (1992). Here, the video shows Carnegay taking a plastic bag containing several grocery items out
1. At the outset we need to address the appellants' contentions that OCGA §§ 51-2-4 and 51-2-5 provide a rule of nonliability of an employer for the torts of an independent contractor, except in six exclusive exceptions relating to negligent torts, thus precluding any imposition of employer liability for the intentional torts of an independent contractor. For this reason, the appellants contend that the Court of Appeals' decisions in the instant case and in United States Shoe Corp. v. Jones, 149 Ga. App. 595 ( 255 S.E.2d 73) (1979) should be overruled. We disagree.
Further, a personal and nondelegable duty imposed by statute cannot be avoided by a management company employing the security company to protect only the owner's property; the owner is liable for the torts of an independent contractor in protecting its premises. O.C.G.A. § 51-3-1; Peachtree-Cain Co. v. McBee, 254 Ga. 91, 94 (2) ( 327 S.E.2d 188) (1985). U.S. Shoe Corp. v. Jones, 149 Ga. App. 595, 596 (1) ( 255 S.E.2d 73) (1979), is distinguishable from this case, because it was based not upon negligence, but upon an intentional tort committed upon the owner's premises in protecting merchandise. This action, however, is based in negligence; therefore, the dicta from foreign case law regarding negligence of an independent contractor, i.e., the security guard, has no application to this case.
An employer can only be held liable under the doctrine of respondeat superior for the intentional torts of an independent security guard when they are committed in the scope of his employment against the employer's invitees. United States Shoe Corp. v. Jones, 149 Ga. App. 595, 596 (1) ( 255 S.E.2d 73) (1979). See also Peachtree-Cain Co. v. McBee, 254 Ga. 91, 94 (2) ( 327 S.E.2d 188) (1985).
This is not such a case and a jury must determine the reasonableness of Smith's actions on the false imprisonment and false arrest counts. United States Shoe Corp. v. Jones, 149 Ga. App. 595, 597 ( 255 S.E.2d 73) (1979); OCGA § 9-11-56 (e). Summary judgment must be reversed on the assault and battery claim as well. Notwithstanding Cub's argument to the contrary, any unlawful touching of a person's body, even though no physical injury ensues, violates a personal right and constitutes a physical injury to that person.
OCGA § 51-7-60 insulates a merchant and his agents from liability for words spoken in the course of an arrest or detention only if there was a basis for a reasonable belief that the person detained was in fact engaged in shoplifting in the store. Swift v. S.S. Kresge, 159 Ga. App. 571, 573 ( 248 S.E.2d 74) (1981). This court has repeatedly held that a determination of whether the merchant acted reasonably is a matter for jury consideration. Bi-Lo Inc. v. McConnell, 199 Ga. App. 154, 156 (3) ( 404 S.E.2d 327) (1991); United States Shoe Corp. v. Jones, 149 Ga. App. 595, 597 (2) ( 255 S.E.2d 73) (1979). Judgment reversed.
Where an owner does not exercise control over security services hired as independent contractors to provide security on the premises, generally the hirer is not liable for the negligence of the independent security service. U.S. Shoe Corp. v. Jones, 149 Ga. App. 595, 596 ( 255 S.E.2d 73) (1979). Even if the Coliseum Authority were not insulated by the independent contractor status of the APD, there is no support in the record for a claim that inadequate security measures at the concert caused the injury. Generally, an owner is under no duty to anticipate a criminal assault against an invitee by a third party; however, the general rule does not apply where the owner has reasonable grounds for knowing that such a criminal act would be committed. Grandma's Biscuits v. Baisden, 192 Ga. App. 816, 817 ( 386 S.E.2d 415) (1989).
[Cits.]" United States Shoe Corp. v. Jones, 149 Ga. App. 595, 597 (2) ( 255 S.E.2d 73) (1979). 4.
The additional exception to the general rule of nonliability for the torts of an independent contractor, as set forth in Peachtree-Cain Co. v. McBee, 170 Ga. App. 38 ( 316 S.E.2d 9) (1984), aff'd, 254 Ga. 91 (2) ( 327 S.E.2d 188) (1985), applies only to intentional torts of a security agency hired by the owners to protect the premises. See also United States Shoe Corp. v. Jones, 149 Ga. App. 595 ( 255 S.E.2d 73) (1979). Contrary to plaintiff's argument, the additional exception of Peachtree-Cain does not apply to the case at hand.
Since an examination of the transcript reveals that no such objections or requests for corrective action were made at the trial level, this enumeration of error is without merit. See United States Shoe Corp. v. Jones, 149 Ga. App. 595, 598 (6) ( 255 S.E.2d 73) (1979). Judgment reversed. Carley and Benham, JJ., concur.