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GEORGIA SUPREME COURT RULES EMPLOYEE’S “ON CALL” STATUS ALONE DOES NOT CREATE JURY ISSUE OF RESPONDEAT SUPERIOR

Posted by H. Lee Pruett

Last May, the Georgia Court of Appeals decided Hicks v. Heard, Case No. A09A0874 (Ga. Ct. App., May 5, 2009), affirming summary judgment in favor of a defendant employer on the issue of respondeat superior liability. See our May 18, 2009 blog post, “Georgia Court of Appeals Renders Sensible Ruling on Employer Liability and Negligent Entrustment.” In this case, while driving a company car, the daughter of an officer and owner of Mark Heard Fuel Company caused a rear-end collision which injured the plaintiff.

Jessica Heard was employed by the company as a clerical worker on a part-time, as-needed basis. At the time of the accident, she was driving home from school. Plaintiff alleged the company was responsible through vicarious liability and negligent entrustment. Following discovery, the trial court granted the defendant company’s motion for summary judgment, and the Court of Appeals affirmed.

The Georgia Supreme Court granted cert and instructed the parties to submit briefs on the issue of whether the Court of Appeals had given “proper weight to an employee’s ‘on call’ status during the final step of the burden shifting framework laid out in Allen Kane’s Major Dodge, Inc. v. Barnes, 243 Ga. 776, 257 S.E.2d 186 (1979).” Hicks v. Heard, Case No. S09G1508 (Ga. S. Ct., March 29, 2010). Under this framework, the court must consider the following: If an employee is involved in an accident while driving the employer’s vehicle, a presumption arises that the employee was acting within the course and scope of her employment. The employer can overcome the presumption by presenting uncontradicted evidence that the employee was not acting within the scope of her employment. The burden then shifts to the plaintiff to show some other fact that indicates the employee was acting within the scope of employment at the time of the accident.

In a 4-3 decision, the Court affirmed the grant of summary judgment in favor of the defendant company. With an exhaustive review of the pertinent case law, the Court considered whether the “other fact” of the employee being on call would be direct or circumstantial evidence of respondeat superior liability. If the “other fact” is direct evidence, the issue goes to the jury. If it is circumstantial evidence, however, “it must be evidence sufficient to support a verdict in order to withstand the defendant’s motion for summary judgment.” Such evidence must “tend in some proximate degree to establish the conclusion he claims; and for this, the facts shown must not only reasonably support that conclusion, but also render less probable all inconsistent conclusions.” Here, when the burden shifted to the plaintiff, the plaintiff could offer only the circumstantial evidence of the employee’s on call status. The “inferences to be drawn” from this evidence, however, “cannot, as a matter of law, support a verdict against the Company in the face of direct testimony that Jessica was on the purely personal mission of driving home after a school exam and that she had not performed any work for the Company in a month.” The defendant company, therefore, was entitled to summary judgment.

The dissent argued that the employer’s ownership of the vehicle, coupled with the employee’s on call status, was sufficient evidence for the issue of vicarious liability to go to the jury. Despite the close decision, however, the majority’s opinion is now the law of the land. Employers can rest a bit easier, knowing an employee’s “on call” status alone will not subject the employer to potential liability.