Dougherty Equip. Co. v. Roper

327 Ga.App. 434

757 S.E.2d 885

DOUGHERTY EQUIPMENT COMPANY, INC.

v.ROPER.

No. A14A0620.

Court of Appeals of Georgia.

May 1, 2014.

Reconsideration Denied June 2, 2014.

Brannen, Searcy & Smith, Jordon Dean Morrow, Savannah, for Appellant.

Jones, Boykin & Associates, Noble Louis Boykin Jr., Savannah, for Appellee.

MILLER, Judge.

Adam Garland, a former employee of Dougherty Equipment Company, Inc. (“Dougherty”), was driving a company vehicle on his way to work when he was involved in an automobile accident with Linda Roper's vehicle. Roper sued Dougherty alleging that Dougherty was vicariously liable for Garland's actions under the doctrine of respondeat superior and directly liable for its negligent entrustment and hiring of Garland.¹ Dougherty moved for summary judgment on the vicarious liability claim on the ground that Garland was acting outside the scope of his employment at the time of the accident and that there was insufficient evidence to support the remaining claims. The trial court denied Dougherty's motion, and we granted Dougherty's application for interlocutory review.

On appeal, Dougherty contends that the undisputed evidence shows that Garland was not acting within the course and scope of his employment when he was driving to work and, as a result, it was entitled to summary judgment on the vicarious liability and negligent hiring claims. Dougherty also contends that the evidence did not support a negligent entrustment claim. For the reasons that follow, we agree that Dougherty was entitled to summary judgment on Roper's claims for vicarious liability and negligent hiring, and, therefore, we reverse the denial of summary of judgment as to these claims. We affirm the trial court's denial of summary judgment as to the negligent entrustment claim, however, because issues of fact remain.

In order to prevail on a motion for summary judgment under OCGA § 9–11–56,

the moving party must show that there exists no genuine issue of material fact, and that the undisputed facts, viewed in the light most favorable to the nonmoving party, demand judgment as a matter of law. Moreover, on appeal from the denial or grant of summary judgment the appellate court is to conduct a de novo review of the evidence to determine whether there exists a genuine issue of material fact, and whether the undisputed facts, viewed in the light most favorable to the nonmoving party, warrant judgment as a matter of law.

(Citations omitted.) Benton v. Benton, 280 Ga. 468, 470, 629 S.E.2d 204 (2006).

So viewed, the evidence shows that Dougherty employed Garland in July 2006 as a forklift technician. At that time, Garland's driver's license was under suspension because of a 2004 DUI conviction. Garland also had a DUI conviction in the late 1990s. Garland testified that Dougherty was aware that his driver's license had been suspended as a result of his 2004 DUI conviction. Garland was not allowed to drive a Dougherty company vehicle or his own vehicle for any business purpose because of his driving record.

In February 2007, Garland received a restricted driving permit for six months. Dougherty cleared Garland to drive for the company in March 2007 after obtaining a motor vehicle report (the “2007 MVR”) from the State that reflected Garland's driving history for the previous three years. The 2007 MVR showed that Garland had a restricted driver's permit, and a 2004 conviction for failure to maintain lane. The 2007 MVR also included a notation under a section “miscellaneous/state specific information” that stated “Limited Permit 2DUI.” Garland's driving privileges were fully restored in August 2007.

After Garland's driver's license was restored, Dougherty assigned him a company van equipped with tools and equipment so that Garland could travel to various job sites to perform on-site maintenance and repair of forklifts. Dougherty also allowed technicians, such as Garland, to take company vans home because technicians could be called out for a service call at any time, including after business hours and on weekends. On occasion, technicians would travel directly from their homes to a customer's location. The vans were to be used only for company business,and Dougherty issued Garland a company credit card to pay for fuel and other expenses related to the use of the company van.

Around 6 a.m. on the morning of May 16, 2008, Garland left his home in Dougherty's company van and drove toward the company office to receive his assignments for the day. A few miles from his residence, Garland was involved in an automobile accident with Roper when he failed to properly yield to oncoming traffic after coming upon a stop sign.

1. Dougherty contends that the trial court erred in concluding that it could be vicariously liable for Garland's actions because the evidence showed, at the time of the accident, that Garland was on his way to work and he was not acting on behalf of or performing a duty for Dougherty. Dougherty also contends that, because Garland was not acting within the scope of his employment, Roper's negligent hiring claim must also fail. We agree.

(a) “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.” (Citation and punctuation omitted.) Hicks v. Heard, 286 Ga. 864, 865, 692 S.E.2d 360 (2010). “[W]here a tort occurs while an employee has stepped aside from his employer's business to do an act entirely disconnected from that business, the employer has no liability.” (Citation omitted.) Nelson v. Silver Dollar City, Inc., 249 Ga.App. 139, 145(4), 547 S.E.2d 630 (2001). Moreover, “[i]t is well established that an employee on the way to work is not in the course of his employment but rather is engaged in a personal activity.” (Citation and punctuation omitted.) Farzaneh v. Merit Const. Co., Inc., 309 Ga.App. 637, 639–640, 710 S.E.2d 839 (2011).

Where a tort occurs as a result of a vehicle collision in which the employee was driving his employer's vehicle, however, the employer's liability must be analyzed under the burden-shifting framework espoused by the Supreme Court of Georgia in Allen Kane's Major Dodge, Inc. v. Barnes, 243 Ga. 776, 257 S.E.2d 186 (1979). Under this framework, a presumption arises that the employee was acting in the course and scope of his employment at the time of the collision, and the burden is then on the employer to show otherwise. Hicks, supra, 286 Ga. at 865, 692 S.E.2d 360. An employer may overcome this presumption as a matter of law by presenting uncontradicted evidence showing that the employee was not acting in the course and scope of his employment. Id. at 865–866, 692 S.E.2d 360; see also Farzaneh, supra, 309 Ga.App. at 639, 710 S.E.2d 839.

The employer is thereafter entitled to summary judgment unless “other facts” are proffered—that is, additional evidence other than the fact that the vehicle was owned by the employer—from which a jury could reasonably infer that the employee was acting within the course and scope of his employment when the accident occurred. Where the “other facts” are direct evidence, such is sufficient for the case to go to the jury. Where the “other facts” are circumstantial, however, such evidence will not defeat the employer's motion for summary judgment, unless it is sufficient to support a verdict in the plaintiff's favor.

(Footnotes omitted.) Littlefield Const. Co. v. Bozeman, 314 Ga.App. 601, 603–604(1), 725 S.E.2d 333 (2012).

In this case, it is undisputed that Garland was driving Dougherty's company van on the morning the accident occurred, and this created the presumption that Garland was acting in the course and scope of his employment. It is also undisputed, however, that Garland had not yet begun work at that time as he was traveling from home to the company office to receive his daily assignments. Since the uncontradicted evidence shows that Garland had not yet begun work at the time of the accident, Dougherty rebutted the presumption that Garland was acting in the course and scope of his employment. See Betsill v. Scale Systems, Inc., 269 Ga.App. 393, 395(1), 604 S.E.2d 265 (2004) (the general rule is that an employee is deemed to act only for his own purposes while commuting to work unless he undertakes a special mission at the employer's direction); see also Matheson v. Braden, 310 Ga.App. 585, 586–587, 713 S.E.2d 723 (2011) (although employee was driving employer's truck, the uncontradicted evidence showed that the employee was returning home to lunch at the time of the accident and, thus, was not acting in the course and scope of his employment). Accordingly, the burden shifted to Roper to show some “other fact” indicating that Garland was acting within the scope of his employment. Roper failed to do so.²

While the evidence shows that Garland was an “on call” technician, an employee's “on call” status is, at best, circumstantial evidence that Garland was...