Pavuk v. Western International Hotels

Banke, Judge. Alleging that she was sexually assaulted during the course of her employment as a bartender at the Peachtree Plaza Hotel in Atlanta, the appellant sued Peachtree Hotel Company, as owner of the hotel, and appellee Western International Hotels, the corporation responsible for its management, charging them with negligence in failing to keep the premises safe. Western International Hotels acquired its management duties as assignee of an “operating agreement” between Georgia Western Hotel Company, its wholly owned subsidiary, and the owner, Peachtree Hotel Company. This operating agreement gives Georgia Western complete authority to hire, fire, supervise, and direct hotel employees. The assignment agreement between Georgia Western and Western International, transferred all “right, title, and interest” in the operating agreement to Western International but provided that “all personnel with the exception of certain administrative, supervisory, and executive positions shall remain or become employees of Georgia Western, with Georgia Western being reimbursed for all costs and expenses relating to the employment of the said personnel directly from Peachtree [Hotel Company] as contemplated in the operating agreement.” It is conceded by the parties that the appellant is entitled to receive worker’s compensation benefits as a result of the incident in question. The issue in this appeal is whether this fact precludes her from maintaining a tort action against Western International. Based on the language of the assignment agreement, the appellant contends that her employer was Georgia Western and not Western International. Consequently, she argues that Code Ann. § 114-103 does not bar her from maintaining this negligence action against Western International. Western International, on the other hand, contends that at all times relative to the incident, the appellant was under its direction and control as a “borrowed servant” and that consequently it is protected by § 114-103. The trial court agreed with Western International and granted its motion for summary judgment. Held: In support of the motion for summary judgment, Western International filed affidavits from two of its officers asserting that since the date the operating agreement was assigned to it, it has performed all management duties and responsibilities involved in the operation of the hotel, including the selection, supervision and control of employees such as the appellant, and that Georgia Western’s only function has been to continue to disburse salaries under an arrangement by which it is reimbursed by Peachtree Hotel [83] Company. There is nothing in the record controverting these assertions, and we must accordingly conclude that the appellant was an employee of Western International. It follows that Western International was entitled to summary judgment under Code Ann. § 114-103, without reference to the “borrowed servant” doctrine set forth in Pilcher v. Wise Elec. Co., 129 Ga. App. 92 (198 SE2d 713) (1973). That doctrine applies where the employee leaves the control of the general master for a particular “occasion.” Id. at 93. In,this case, the appellee’s unopposed affidavits establish that it was in supervisory control of the appellant throughout her employment at the hotel. Decided October 16, 1981. James C. Gaulden, Jr., for appellant. William L. Spearman, for appellee. Judgment affirmed. Deen, P. J., and Carley, J., concur specially.