A plaintiff was injured in an auto accident when another driver ran a red light during his commute to a job site for his employer, a construction company. The plaintiff filed a negligence suit against the company, alleging that its employee was acting in the scope of his employment at the time of the accident.
Background
In February 2019, the employee was working as a welder for the construction company at various job sites. On the morning of the accident, he was driving to his job site in the rain when he ran a red light and crashed into the plaintiff’s car in the intersection. The employee wasn’t engaged in any work-related phone calls at the time, and he didn’t make any work-related stops on his commute. He also admitted that the accident was his fault, and he was cited for failure to obey a traffic signal. In addition:
- The employee was driving his personal truck;
- Many of the tools on board belonged to him; and
- There were no markings or signs with the company name on the truck.
The construction company didn’t pay for the truck or the employee’s tools. Instead, they paid a “rig rate,” which compensated the employee for the use of his personal tools, as well as gas and maintenance. They also required the employee to add its name to his personal insurance policy as an additional insured.
The employee was paid hourly for the time he worked, and the clock didn’t start until he was at the job site. On days where he arrived at the job site but was unable to work due to the weather, he received “show up” pay which was equivalent to two hours’ wages to compensate him for the commute. The show-up pay was the same amount regardless of the length of time or the distance of the commute. On the day of the accident, the employee didn’t get the show-up pay because he never made it to the job site.
After the accident, the plaintiff sued the employee and the construction company on the ground that it was vicariously liable for the employee’s conduct. Both the construction company and the plaintiff moved to dismiss the case. The trial court granted the construction company’s motion. The plaintiff appealed, arguing that the trial court erred because the employee admitted he was acting in the scope of his employment, and there were special circumstances that rendered the construction company vicariously liable for his injuries.
Judge Todd Markle wrote in his opinion for the Court of Appeals, quoting a 2021 decision that it’s well-settled that:
[e]very master shall be liable for torts committed by his servant by his command or in the prosecution and within the scope of his business, whether the same are committed by negligence or voluntarily. 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. The test is not that the act of the servant was done during the existence of the employment, but whether the servant was at that time serving the master. While a jury frequently must resolve whether an employee acted in furtherance of his master’s business and within the scope of his employment at the time an injury was inflicted, the evidence in some cases is so plain and undisputable that the court may resolve a respondeat superior claim as a matter of law.
Is an Employee’s Commute Part of “Work”?
Judge Markle explained that there’s a longstanding general rule that an employee is engaged in “a purely personal matter” while commuting to or from work. However, the Court of Appeals has held that there’s an exception to this general rule that allows an employer to be held liable for its employee’s actions while commuting to or from work where there are “special circumstances.”
Here, the plaintiff argued that the employee was in the scope of his employment at the time of the accident because he testified that he was on the clock, and the construction company reimbursed him for his commute in the form of show-up pay. Alternatively, he argued that there were special circumstances that place the employee’s commute in the scope of his employment. However, the Court disagreed.
Again, the general rule is that an employee on his commute to work is not acting in the scope of employment. But the plaintiff contended that the employee’s commute was in the scope of his employment because he received show-up compensation that covered the cost of his commute; he believed that he was on the clock; and his belief can be imputed to the construction company under agency theory. But Judge Markle surprisingly held that none of these circumstances demonstrated that the employee was acting in the scope of his employment.
As to the employee’s belief that he was on the clock, the Court noted that his testimony was equivocal at best, and it failed to establish that he was in the scope of employment at the time of the accident. This is rather contrary to how the courts usually rule and in fact contrary in many ways to sound public policy. He believed he was on the clock, was getting reimbursed, and the Court should have found he was an employee.
However, the Court continued that the employee was not the construction company’s agent for purposes of his testimony. The Court said that there was no evidence that the employee was the construction company’s agent at that time. He never said he was the construction company’s agent. The fact that the construction company’s corporate witness didn’t disagree with the employee’s belief as to the purpose of the show-up pay didn’t provide corroboration of an agency relationship.
Is the Special Circumstances Exception Applicable?
Judge Markle also found that the special circumstances exception wasn’t applicable here. The Court of Appeals has identified various factors relevant to the exception, which include:
- The presence of the employer’s materials in the employee’s vehicle;
- The use of a vehicle stipend; and
- Whether the employee carried a phone for work-related calls during the commute.
However, the Court has never held that such factors, standing alone, were sufficient to impose vicarious liability. Rather, the Court of Appeals has typically required something more— some affirmative act by the employee to benefit the employer to place the commute in the scope of employment.
Here, the plaintiff pointed to the rig rate, the show-up pay, the presence of the construction company’s tools on the truck, and the fact that the employee listed the construction company on his insurance policy to establish special circumstances. However, again very surprisingly Judge Markle found that none of these factors—even though there were several—were enough to establish the special circumstances exception. Instead, Judge Markle said that the employee wasn’t engaged in any activity to benefit his employer during his commute; he wasn’t conducting any business or work-related calls during the drive; and he didn’t make any work-related stops, and as a consequence, there was no special circumstance to say that the employee’s commute was in the scope of his employment.
“To conclude otherwise would effectively subject an employer to liability for every commute, and the exception would swallow the rule,” Judge Markle wrote. “We decline to take that step.”
Accordingly, the Court of Appeals concluded that the trial court properly granted the construction company’s motion for summary judgment to dismiss the case. Stembridge v. Pride Util. Constr. Co., 2022 Ga. App. LEXIS 433 (Ga. App. September 7, 2022).
Our firm disagrees with this finding, but we are not the judges so there’s only so much we can do!
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