DMAC81, LLC v. Nguyen

358 Ga.App. 170

853 S.E.2d 400

DMAC81, LLC

v.NGUYEN et al.; and vice versa.

A20A1991

A20A1992

Court of Appeals of Georgia.

January 14, 2021

Reconsideration Denied January 27, 2021

Duke Riley Groover, Nathaniel E. Edmonds, Macon, David Seth Cromer, for Appellant in A20A1991.

Caroline Whitehead Herrington, Virgil Louis Adams, Lauren M. Childs, Macon, Charles R. Adams III, Dawn Maynor Lewis, for Appellee in A20A1991.

Caroline Whitehead Herrington, Virgil Louis Adams, Lauren M. Childs, Macon, Charles R. Adams III, Dawn Maynor Lewis, for Appellant in A20A1992.

Duke Riley Groover, Nathaniel E. Edmonds, Macon, David Seth Cromer, for Appellee in A20A1992.

Markle, Judge.

As Gary Kai Cummings drove to work during inclement weather in January 2018, he lost control of his car and struck another vehicle, killing Tuan Minh Nguyen (Tuan) and Tuan's brother-in-law. Tuan's wife, Hong Hoa T. Nguyen (Nguyen) sued Cummings and his employer, DMAC81, LLC, for negligence, respondeat superior, and negligent hiring and retention. DMAC81 moved for summary judgment on the issue of whether the accident occurred while Cummings was in the course and scope of his employment. The trial court granted summary judgment in part and denied it in part, and this Court granted interlocutory review. DMAC81 now appeals from the partial denial of its motion for summary judgment in Case No. A20A1991, and Nguyen appeals from the partial grant of the motion in Case No. A20A1992. For the reasons that follow, we conclude that DMAC81 was entitled to summary judgment on both grounds. Accordingly, we reverse in Case No. A20A1991, and we affirm in Case No. A20A1992.

"On appeal from a trial court's grant or denial of summary judgment, our review of the record is de novo, and we construe the facts and all inferences drawn from them in the light most favorable to the nonmoving party." (Citation and punctuation omitted.) Centurion Indus., Inc. v. Naville-Saeger , 352 Ga. App. 342, 343, 834 S.E.2d 875 (2019).

So viewed, the record shows that, at the time of the accident, Cummings worked for McAllister's Deli, which was owned by DMAC81. His usual job was to work on the grill line, but he also assisted the catering manager with deliveries. If he was scheduled to make a catering delivery, he would usually go into work early and prep the grill line for lunch before making the delivery using his own car. On several occasions, he was called in on his day off to help with catering. As an hourly employee, Cummings was only paid for time once he clocked in, and he had to have the general manager's permission to come in early when there was a delivery scheduled. When he made deliveries, he would receive a cash payout to cover the cost of gas in addition to his hourly pay.

The day before the accident, Cummings worked his usual shift. He was scheduled to work at 10 a.m. the following morning, but the general manager called him around 8 a.m. and asked him if he could make a catering delivery. The area was under a state of emergency due to a winter storm, but Cummings and the general manager did not discuss the weather. Cummings did not feel like he could say no to the general manager's request, and he agreed to make the catering delivery.¹

Cummings left his house a little earlier than usual in order to get to work and prep the grill line before taking the delivery. At about 9:35 a.m., while on the commute into work, Cummings lost control of his car and struck another vehicle that was in the emergency lane, killing Tuan and his brother-in-law. Cummings was only a few minutes away from work when the accident occurred.

A blood test after the accident confirmed that Cummings had marijuana in his system at the time of the accident, and it is undisputed that Cummings took some pain medication and smoked marijuana after his shift the day before the accident. DMAC81's assistant general manager, who was Cummings's friend, knew that Cummings sometimes used marijuana, but DMAC81 did not conduct background checks or review driving histories before allowing employees to make deliveries. It did include a question on its employment application inquiring about any accidents or tickets within the last three years. As such, DMAC81 was unaware that Cummings had prior arrests more than seven years earlier for marijuana possession and traffic tickets for reckless driving and DUI.

After the accident, Nguyen filed suit on behalf of herself and as the administrator of Tuan's estate, claiming that Cummings and DMAC81 were negligent, and that DMAC81 was liable under a theory of respondeat superior as well as for negligent hiring and retention. DMAC81 moved for summary judgment, arguing that Cummings was not acting in the course and scope of his employment at the time of the accident. DMAC81 also asserted that the general rule was that an employer was not liable for conduct that occurred while the employee was commuting to work, and neither the exception for special circumstances nor special mission applied under the facts of this case.

The trial court granted the motion in part and denied it in part, finding that there were no special circumstances that would have imputed liability to DMAC81 because Cummings was commuting to his usual place of work, but that there was a jury question regarding whether Cummings was on a special mission for DMAC81 at the time of the accident. The trial court certified its order for immediate review, and this Court granted the interlocutory application, leading to these appeals, in which both DMAC81 and Nguyen assert that the trial court erred in applying the exceptions.

Before we consider these specific arguments on appeal, we first set out the general law concerning an employer's vicarious liability for the acts of its employees.

Every master shall be liable for torts committed by his servant by his command or in the prosecution and within the scope of his business, whether the same are committed by negligence or voluntarily. When a servant causes an injury to another, the test to determine if the master is liable is whether or not the servant was at the time of the injury acting within the scope of his employment and on the business of the master. The test is not that the act of the servant was done during the existence of the employment, but whether the servant was at that time serving the master. While a jury frequently must resolve whether an employee acted in furtherance of his master's business and within the scope of his employment at the time an injury was inflicted, the evidence in some cases is so plain and undisputable that the court may resolve a respondeat superior claim as a matter of law.... There is a longstanding general rule that an employee is engaged in a purely personal matter while commuting to or from work.

(Citations and punctuation omitted.) Centurion Indus., Inc. , 352 Ga. App. at 344-345 (1), 834 S.E.2d 875 ; see also OCGA § 51-2-2.²

There are exceptions to this general rule that are relevant to this appeal: the special circumstances exception and the special mission exception. We will consider each in turn.

Case No. A20A1992.

1. In Case No. A20A1992, Nguyen argues that the trial court erred in finding that the special circumstances exception did not apply because catering was beneficial to DMAC81's business, Cummings had been called into work early on the day of the accident, and he was not able to decline his employer's special request. We are not persuaded.

"The law is clear that in the absence of special circumstances a servant in going to and from work in an automobile acts only for his own purposes and not for those of his employer." (Citation omitted.) Hargett's Telephone Contractors, Inc. v. McKeehan , 228 Ga. App. 168, 170, 491 S.E.2d 391 (1997). Some relevant factors include whether the employee was carrying work materials or using a cell phone or pager for work-related calls; whether the employee received a stipend for the use of his vehicle; or whether the employee was "on call." Farzaneh v. Merit Constr. Co., Inc. , 309 Ga. App. 637, 641, 710 S.E.2d 839 (2011) ; see also Clo White Co. v. Lattimore , 263 Ga. App. 839, 840, 590 S.E.2d 381 (2003) (employee's use of cell phone for work at time of the accident raised factual question about special circumstances exception); Chappell v. Junior Achievement of Greater Atlanta , 157 Ga. App. 41, 42-43, 276 S.E.2d 98 (1981).

None of those factors are applicable here. Cummings was making his usual commute to the deli at the time of the accident. He was traveling in his own car, and had not yet clocked in. See Dougherty Equip. Co., Inc. v. Roper , 327 Ga. App. 434, 437 (1) (a), 757 S.E.2d 885 (2014) (employee in accident on commute into work was not performing duty for employer but was performing his duty to arrive on time for his job). He was not using a cell phone or conducting any business for his employer during this commute, and, although Cummings would receive additional pay for the delivery to cover the cost of gas, he was not being paid for the time it took him to commute. See Archer Forestry, LLC v. Dolatowski , 331 Ga. App. 676, 679 (3), 771 S.E.2d 378 (2015) (no special circumstances existed to hold employer liable where employee was on commute home with his son in the employer's car, but there was no evidence he was engaged in any work-related phone calls during the drive). Compare Hunter v. Modern Continental Constr. Co. , 287 Ga. App. 689, 691, 652 S.E.2d 583 (2007) (factual question about whether employee was on cell phone with a co-worker during commute to work raised jury question about special circumstances exception); Clo White Co. , 263 Ga. App. at 840, 590 S.E.2d 381.

The fact that Cummings may have been "on call" to make deliveries on other days does not make this a special circumstance, especially where, as here, Cummings was already scheduled to work his regular shift that morning. See Farzaneh , 309 Ga. App. at 641, 710 S.E.2d 839 ; Williams v. Baker County , 300 Ga. App. 149, 153 (1),...