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Posted by H. Lee Pruett

Jessica Heard, the daughter of an officer and owner of Mark Heard Fuel Company, rear-ended Bonnie Hicks while driving a company car. Ms. 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. Ms. Hicks, the plaintiff, claimed she was injured and filed suit against Ms. Heard and the Company. Plaintiff alleged the Company was liable through vicarious liability and negligent entrustment. Following discovery, the Company filed a motion for summary judgment. Judge David L. Dickinson of the Forsyth County Superior Court granted the motion.

In Hicks v. Heard, Case No. A09A0874 (Ga. Ct. App., May 5, 2009), the Georgia Court of Appeals affirmed summary judgment in favor of Defendant Company. The Court restated the evidentiary rules to be applied to cases involving employer-owned vehicles: If an employee is involved in an accident while driving her 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 is then on the plaintiff to show some other fact that indicates the employee was acting within the scope of employment at the time of the accident. If the “other fact” is direct evidence, the issue goes to the jury. If it is circumstantial, it must be sufficient to support a verdict. Otherwise, the defendant is entitled to summary judgment.

In this case, the Court of Appeals agreed with the trial court that Plaintiff had failed to show an issue of fact. Ms. Heard testified that she was driving home from school when the accident occurred. Her father testified that his daughter had not worked that month because of her school schedule. Thus, Defendant Company presented uncontradicted evidence that Ms. Heard was not acting in the scope of her employment. The Court rejected Plaintiff’s argument that an issue of fact was created because Ms. Heard was considered an “on call,” “as-needed” employee. The mere fact that an employee is on call, the Court held, does not constitute evidence that the employee was acting for the employer at the time of the accident. Summary judgment for the Company, therefore, was appropriate.

The Court also rejected Plaintiff’s argument that Ms. Heard’s driving history created an issue of fact on Plaintiff’s claim against the Company for negligent entrustment. A vehicle owner is liable for negligent entrustment when he lends the vehicle to another person with actual knowledge that the person is incompetent to drive or is habitually reckless. In this case, Plaintiff’s only evidence was the Company’s knowledge that Ms. Heard had a previous ticket for speeding and had been involved in a prior accident for which she was charged with failure to yield. The Court held that this was insufficient as a matter of law to show incompetence or habitual recklessness.