The Georgia Court of Appeals recently held that a car dealership was properly granted summary judgment because the employee’s deposition testimony showed the employee wasn’t acting within the scope of employment with the car dealership at the time of the accident. The employee was sent home by a supervisor, he stopped at a restaurant to pick up takeout food, and then was driving home when he rear-ended the plaintiff.
The plaintiff and his wife filed suit against the employee and his employer, the car dealership for injuries he sustained from an automobile accident, in which the employee rear-ended his car while driving a dealership-owned vehicle. The car dealership moved for summary judgment, which the trial court granted. On appeal, the plaintiff argued the trial court erred in finding that the car dealership was not liable under a theory of vicarious liability.
The employee started working for the car dealership as a finance manager in October 2016. On May 24, 2017, the car dealership provided the employee with a company car, which it called a “demonstrator vehicle.” There were no company logos, names, stickers, or signs on the front or side of the vehicle assigned to the employee. He wasn’t required to use a demonstrator vehicle as a condition of his employment, but after deciding to do so, the dealership had him sign the “Demonstrator Policy,” which governed his use of the vehicle.
On January 22, 2018, the employee arrived at the car dealership at 9am to start his work day. Then, around 2pm, he and the dealership’s finance director got into an argument over a commission, which ended with the finance director telling him to go home for the day. So, the employee left work in his demonstrator vehicle. But rather than go straight home, he first drove approximately 45 minutes to a Mexican restaurant on Peachtree Industrial Boulevard to get takeout. After picking up his food, he began driving toward his home, traveling on Interstate 285 in heavy, slow-moving traffic. Then, before reaching his exit, he turned his attention away from the road for a brief moment—worried that his food was about to slide off the seat—and looked back up in time to see that traffic had come to a stop but too late to avoid rear-ending the plaintiff’s vehicle.
The plaintiff and his wife later filed suit against the employee and the car dealership, alleging that he suffered injuries and his wife loss of consortium as a result of the employee’s negligence. In doing so, they alleged the dealership was liable for the employee’s negligence on the ground of vicarious liability. The car dealership filed a motion for summary judgment, arguing that the employee wasn’t acting within the scope of his employment at the time of the accident, and therefore, the dealership wasn’t vicariously liable for his negligence. The trial court granted the car dealership’s motion. This appeal followed.
The plaintiff contended that the trial court erred in granting summary judgment on his claim of vicarious liability against the car dealership. Specifically, he argued that genuine issues of material fact existed as to whether the employee was acting within the scope of his employment at the time of the accident.
The Court of Appeals Disagrees With the Plaintiff
Presiding Judge Stephen Dillard of the Georgia Court of Appeals explained in his opinion that under the common law theory of vicarious liability, 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.” In other words, a tort is committed by an employee not by reason of the employment, but “because of matters disconnected therewith, the employer is not liable.” And if a tortious act is committed not in furtherance of the employer’s business, but “rather for purely personal reasons disconnected from the authorized business of the master, the master is not liable.” As a result, an employee traveling to or from work is “not in the course of his employment but rather is engaged in a personal activity.”
When a tort happens as a result of a vehicle collision in which the employee is driving his employer’s vehicle, the employer’s liability must then be examined under a burden-shifting analysis. Under this analytical framework, there’s a presumption that arises that the employee was acting in the course and scope of his employment at the time of the collision, and the burden is on the employer to show that he or she wasn’t. The employer can overcome this presumption by presenting uncontradicted evidence demonstrating that the employee wasn’t acting in the course and scope of his employment. If so, the employer is entitled to summary judgment unless other facts are provided that create a question for the jury.
Here, the employee testified in his deposition that he wasn’t acting within the course and scope of his employment with the car dealership at the time of the accident. He said that he’d been sent home by his boss, stopped a restaurant to get a takeout order, and was driving to his home when he rear-ended the plaintiff’s vehicle. The Court found that this uncontradicted evidence was enough to rebut the presumption that—because he was driving a the car dealership demonstrator vehicle—the employee was acting within the scope of his employment at the time of the accident. Consequently, the burden shifted to the plaintiff to show some other fact demonstrating that the employee was acting within the scope of his employment.
On appeal, the plaintiff argued that the language in the dealership’s Demonstrator Policy overcame the employee’s testimony and created a genuine issue of material fact as to whether he was acting within the scope of his employment when driving the demonstrator vehicle. The plaintiff specifically claimed that certain language in the policy—e.g., “[a]s part of the high visibility effort the employee is required to use the demonstrator vehicle in his personal travels within the sales area (up to [a] 75 mile radius)” and “use of any demonstrator is purely for the convenience and benefit of the car dealership”—was evidence that any use of the demonstrator vehicle by an employee within the 75-mile radius of the dealership fell within the scope of employment regardless of the employee’s intended purpose or destination. However, the Court of Appeals and Judge Dillard were unpersuaded.
First, the Demonstrator Policy was an internal company document whose primary purpose was to govern an employee’s work and personal use of a dealership vehicle. The idea that it somehow resulted in the car dealership assuming liability for any action taken by an employee in operating such a vehicle—no matter how far afield it may be from the scope of his or her employment—”strains credulity and has no basis in Georgia law,” Judge Dillard wrote.
Moreover, even if Georgia law allowed for a document like the Demonstrator Policy to impose a third-party beneficiary type of liability on a company (which it didn’t), the basis for doing so here would be especially tenuous—i.e., the incidental advertising benefit derived by the car dealership from an employee driving one of its demonstrator vehicles around or near the sales area. The minimal advertising benefit the car dealership derived from the employee driving a demonstrator vehicle within the designated sales area—regardless of whether it was acknowledged in a written company policy—didn’t create a genuine issue of material fact in the face of the employee’s uncontradicted testimony that he was simply on his way home after picking up food and not acting within the scope of his employment when the accident occurred.
Accordingly, the trial court did not err in granting summary judgment in favor of the car dealership. Campbell v. Courtesy Ford, Inc., 2023 Ga. App. LEXIS 104 (Ga. App. February 28, 2023).
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