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GEORGIA COURT OF APPEALS FINDS NO VICARIOUS LIABILITY WHERE PLAINTIFF INJURED BY COUNTY EMPLOYEE

Posted by Susan J. Levy

In Williams v. Baker County, 2009 Ga. App. LEXIS 1110 (September 22, 2009), Defendant William Land admitted causing an accident that injured Plaintiff when his vehicle struck her vehicle.

At the time of the accident, Land and his supervisor, Tommy Williams, were employed by Baker County as maintenance workers, but also routinely performed work for the City of Newton as part of a shared arrangement. Land worked daily from 9:00 a.m. to 5:00 p.m. and carried a radio provided by the County so that the County Manager could keep in touch with him during business hours. Typically, Land was required to take lunch from 12:00 p.m. to 1:00 p.m., using his personal vehicle. At 1:00 p.m., Land would then go back on duty in the City truck while Tommy Williams took his lunch. Then, at 2:00 p.m., Land and Tommy Williams would meet at a local hardware store in a space rented by the City to discuss the afternoon’s schedule.

On the date of the accident, Land was authorized to drive the County truck to Albany, but he returned too late for his usual noon lunch. Subsequently, he received permission to take a late lunch a little before 2:00 p.m. Land still met Tommy Williams at the hardware store at 2:00 p.m. Both then drove back to City Hall to get a City vehicle to begin the afternoon’s work. As Land followed Tommy Williams in Land’s personal vehicle, he struck Plaintiff.

Georgia law provides that “[w]hen a vehicle involved in a collision is owned by an employer and operated by an employee, a presumption arises that the employee was acting in the scope of his employment at the time of the collision.” (quoting Hankerson v. Hammett, 285 Ga. App. 610, 612 (2007)). However, the Court in this case noted that since the evidence was undisputed that Land was driving his own personal vehicle, no such presumption ever arose that he was acting within the course and scope of his employment with the county. Plaintiff’s argument that Land’s county-issued radio tipped the balance fell on deaf ears: “This Court has repeatedly held that the mere fact that an employee was “on call” does not constitute evidence that he was in the service of his employer when the collision occurred.” Williams at *9. (quoting Hicks v. Heard, 297 Ga. App 689, 691 (2009)).

Finally, the Court articulated the bottom line inquiry: “The test is not that the act of the servant was done during the existence of employment, but whether the servant was at that time serving the master.” Williams at *9. (quoting Curtis, Inc. v. Kelley, 167 Ga. App. 118, 199 *1983)).

This case signifies a victory for the county employer. The Court reaffirmed precedent that an employee’s “on call” status did not trigger vicarious liability. The Court also refused to allow the complex facts regarding the shared work agreement to raise a jury issue as to whether Land was acting within the scope of his employment with the County.