Not So Special! Georgia Court of Appeals Clarifies Special Circumstance and Special Mission Exceptions to Vicarious Liability

• Jurisdiction: Georgia,United States
• Publication year: 2022
• Citation: Vol. 73 No. 3

Not So Special! Georgia Court of Appeals Clarifies Special Circumstance and Special Mission Exceptions to Vicarious Liability

Samantha Thompson

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Not So Special! Georgia Court of Appeals Clarifies Special Circumstance and Special Mission Exceptions to Vicarious Liability

Samantha Thompson^*

I. Introduction

The ever-increasing mobility of today's workforce threatens employers with a risk of vicarious liability for injuries arising from their employees' driving under the doctrine of respondeat superior.¹ Although common law protects employers from liability for injuries arising from an employee's commute to or from work,² the special circumstance exception and the special mission exception can create vicarious

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liability for a Georgia employer.³ These exceptions bring an employee's commute within the scope of employment when an employee acts under a special circumstance or in furtherance of a special mission at the time of an automobile accident; this creates vicarious liability for employers. In DMAC81, LLC v. Nguyen,⁴ the Georgia Court of Appeals clarified when a special circumstance or special mission creates vicarious liability for employers.

II. Factual Background

Gary Cummings (Cummings) was commuting to work one morning when he lost control of his vehicle and crashed into another car, killing two individuals.⁵ Cummings was employed by McAlister's Deli (McAlister's) in Macon, Georgia, where he worked on the grill line and assisted with catering deliveries as needed.⁶ If Cummings was scheduled to assist with catering, he would arrive at work early to prepare the grill line before making deliveries. Cummings was paid hourly after clocking in each day, required a general manager's permission to come in early, and received a cash payout to cover the cost of gas when he assisted with deliveries.⁷ Although Cummings was occasionally called in to assist on his day off, DMAC81, LLC (DMAC), the owner of the Macon McAlister's location, did not have a policy which disciplined employees for refusing to assist on their days off.⁸

On the morning of the accident, Cummings was scheduled to begin his regular shift at 10:00 a.m. However, the general manager called at 8:00 a.m. to ask Cummings to make a catering delivery.⁹ Although Macon was under a state of emergency due to inclement weather,¹⁰

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Cummings felt he could not deny this request. Cummings agreed to make the delivery and began his morning commute a little early to prepare the grill line.¹¹ Cummings sped and drove in the center lane, a few minutes from work, when he lost control of his vehicle and tragically killed two individuals parked in an emergency lane.¹² A blood test revealed marijuana and pain medication in Cummings's system at the time of the accident.¹³

The estate of Mr. Nguyen initiated a wrongful death suit in Bibb County Superior Court against both Cummings and his employer, DMAC.¹⁴ Specifically, the plaintiff alleged DMAC was liable for negligent hiring and retention of Cummings, and vicariously liable for Cummings's negligent conduct under the doctrine of respondeat superior.¹⁵ DMAC argued that common law rule immunizes employers from liability when injuries arise during an employee's regular commute to work.¹⁶

DMAC moved for summary judgment alleging: the special circumstance exception to the common law rule did not create vicarious liability; the special mission exception also did not apply; and DMAC was not negligent in its hiring and retention practices.¹⁷ The trial court agreed that no special circumstance created vicarious liability. However, the trial court found that a dispute of fact existed as to whether the special mission exception applied; thus, it denied DMAC's motions for summary judgment relating to the special mission exception and the alleged negligent hiring and retention practices.¹⁸ On interlocutory appeal,¹⁹ the court of appeals considered DMAC's three

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motions and affirmed the trial court's decision in part and reversed the decision in part. Ultimately, the court of appeals determined that DMAC was not liable under the doctrine of respondeat superior and granted each of DMAC's motions for summary judgment.²⁰

III. Legal Background

Employers can be held liable for torts committed by their employees under the doctrine of respondeat superior. This common law doctrine creates vicarious liability when two elements are satisfied: (1) an employee causes injury to another; (2) while acting in furtherance of the employer's business and within the scope of their employment.²¹ An employer can be vicariously liable if an injury arises at the time and in the scope of an employee's service to the employer, regardless of whether the employer intended the tortious conduct to result.²² The Georgia General Assembly codified this doctrine to create liability when torts are committed by the employer's command or in the prosecution²³ and within the scope of the employer's business.²⁴

The test for vicarious liability turns on whether an employee is serving its employer at the time of injury.²⁵ For vicarious liability to result, a tort must occur while an employee is accomplishing the ends of employment.²⁶ If an employee exercises their independent business and is not subject to their employer's immediate control at the time of injury, employers are generally not vicariously liable.²⁷ An employer is

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not vicariously liable if an employee is engaged in a purely personal mission at the time of injury.²⁸

An employer generally will not be liable for an automobile accident that occurs during an employee's commute to or from work.²⁹ For example, in Gassaway v. Precon Corporation,³⁰ an employee caused an automobile accident while commuting back to a job site after taking a lunch break. The employee was found to be on a "purely personal mission" and not acting within the scope of employment.³¹ Specifically, at the time of injury, the employee ran a personal errand, not for the benefit of his employer; did not act in obligation to his employer; did not operate under his employer's direction; and received the primary benefits of his conduct.³² However, there are exceptions to this general rule.³³ If a commuting employee acts under a special circumstance or in furtherance of a special mission at the time of an automobile accident, vicarious liability can be created by the special circumstance exception or the special mission exception.³⁴

A. Special Circumstances Exception

Although an employee acts for their own purpose when commuting to or from work,³⁵ a special circumstance can arise during the employee's commute which brings the commute within the scope of employment.³⁶ A special circumstance can arise during an employee's commute when the employee conducts some manner of business, drives their employer's vehicle, or acts out of a duty to their employer while on

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call.³⁷ This creates vicarious liability for the employer under the special circumstance exception.

1. Conducting Some Manner of Business

An employee that conducts some manner of company business during their commute acts within the scope of their employment.³⁸ Relevant caselaw establishes parameters governing what behavior is sufficient to bring a commute within the scope of employment under the special circumstance exception. Several conditions are indicative of whether the employee was conducting "some manner of company business"³⁹ during a commute.

Courts have examined the extent to which an employee's accessibility to their employer during their commute is sufficient to warrant the special circumstance exception. An employee carrying an employer-issued phone is not sufficient to create a special circumstance; mere accessibility is not enough.⁴⁰ However, evidence that an employee is on the phone with their employer at or around the time of an automobile accident can create a special circumstance; this is sufficient to bring an employee's regular commute within the scope of employment and create vicarious liability.⁴¹ For example, an employee in Clo White Co. v. Lattimore⁴² called their employer three times during their commute. Several conditions supported the court's determination that the employee acted within the scope of employment during the automobile accident: the calls were work-related; the calls occurred outside of regular work hours; and the calls took place while the employee was not "on the clock."⁴³ Since the employee "conduct[ed] the

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[employer's] business at the time of the accident," the employer could be vicariously liable for resulting injuries.⁴⁴

Also, courts have examined whether the work location to which the employee commutes impacts the analysis of whether the special circumstance exception applies. Ultimately, courts have determined that an employee's commute to a work site rather than a central office is not sufficient to warrant an application of the special circumstance exception.⁴⁵ An employee in Farzaneh v. Merit Construction Co., Inc.⁴⁶ was instructed to arrive at a job site at 6:00 a.m. While commuting to the job site, his automobile struck and severely injured a pedestrian.⁴⁷ Ultimately, this commute was deemed a "purely personal matter," which fell out of the employee's scope of employment under the general rule.⁴⁸ Thus, an employee's commute to or from work does not warrant an application of the special circumstance exception, regardless of whether the employee commutes to a central office or a different assigned work location.⁴⁹

2. Driving an Employer's Vehicle

An employee driving their employer's vehicle at the time of an automobile accident is presumed to act within the scope of their employment, warranting an application of the special circumstance exception.⁵⁰ This presumption exists because employers typically provide vehicles to enable employees to conveniently perform duties within the scope of their employment;⁵¹ the provision of an employer vehicle ultimately benefits...