What is the Special-Mission Exception to Holding an Employer Liable for Their Worker’s Actions in a Car Crash?

A widow filed suit against an employee and his employer (a hospice) for the fatal injuries her husband sustained as a result of an automobile accident. The employee’s vehicle collided with her husband’s motorcycle while the employee was on her way to work. The hospice moved for summary judgment—which the trial court granted. On appeal, the plaintiff argued that the trial court erred in finding that the hospice was not liable under a theory of vicarious liability.


The hospice provides hospice services and palliative care for patients around the Savannah area, and it employs certified nursing assistants (“CNAs”) to help registered nurses with care. The hospice’s job description for CNAs provides: “A full time position works a 30-40 hour work week, rotating days, evenings, or weekends, with occasional requests to work additional days/hours/holidays as needed.” The job description further requires CNAs to participate in “holiday rotation” and “use their personal vehicles to perform home visits [which] may require extensive driving.”

The employee started her shift with the hospice as a CNA in January 2021. Her normal work began at 7am and ended at 3pm, Monday through Friday. Each morning, she commuted using her own vehicle to a healthcare facility—known as “The Social”—for her regular shift. Then, after caring for three patients there, she typically drove to two other facilities to assist with other patients until her shift ended. Under the hospice policy, the employee—as with all CNAs—was reimbursed for any mileage incurred when driving between facilities after her shift began. But she wasn’t reimbursed for mileage during her commute to or from work.

On Friday, May 28, 2021, the employee’s supervisor at the hospice asked if she was available to work her normal Monday shift on May 31 (which was the Memorial Day holiday), and the employee agreed to do so. As was the case every Monday, the employee’s work shift on May 31, 2021, started at 7am, at The Social. So she began her commute that morning at the normal time. But not far from The Social, the employee allegedly made a left turn against a traffic light and struck  the plaintiff’s husband, who was operating his motorcycle, causing severe injuries that resulted in his death.

The motorcyclist’s spouse filed suit against the employee and the hospice, alleging her husband’s death was the result of the employee’s negligence and that the hospice was liable for the employee’s negligence on the ground of vicarious liability. The hospice filed a motion for summary judgment, arguing that the employee wasn’t on a special mission, so she wasn’t acting within the scope of her employment at the time of the accident. Further, the hospice asserted that it wasn’t vicariously liable for her negligence. The trial court granted summary judgment in favor of the hospice. This appeal followed.

The plaintiff claimed that the trial court erred in granting summary judgment on her claim of vicarious liability against the hospice. Specifically, she argued that genuine issues of material fact existed as to whether the employee’s commute to work that holiday morning constituted a special mission and, thus, whether she was acting within the scope of her employment at the time of the accident.

What is Respondeat Superior?

Presiding Judge Stephen Dillard wrote that under the common-law theory of respondeat superior (under which vicarious liability may be imposed), 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, if an employee commits a tort not by reason of employment, but because of an unrelated matter, the employer isn’t liable. Significantly, 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 isn’t liable. And under this theory, an employee traveling to or from work generally isn’t “in the course of his employment but rather is engaged in a personal activity.” As such, the employer won’t be held liable for an injury that occurs while the servant is en route to or from his work. However, Judge Dillard cautioned that as with most rules, there’s an exception to consider here.

What is a Special Mission?

The plaintiff maintained that the employee’s commute in her personal vehicle constituted a “special mission,” and so the employee was acting within the scope of her employment at the time of the accident with the plaintiff’s husband. But Judge Dillard explained that the special-mission exception applies when:

the employee, before or after customary working hours, is on his way from his home to perform some special service or errand or the discharge of some duty incidental to the nature of his employment in the interest of, or under direction of, his employer, and an injury arises en route from the home to the place where the work is performed, such injury is considered as arising out of and in the course of the employment.

Importantly, for this exception to apply, the special mission “must be made at the employer’s request or direction.” It’s not enough that “the commute is ‘incidental to’ or ‘in the interest of’ the employer,” the judge emphasized. Rather, the narrow focus of inquiry is “on the mission itself and whether it is ‘special’ or ‘uncustomary’ and ‘made at the employer’s request or direction.’”

Judge Dillard found that here, the employee was scheduled to work her normal weekday shift the morning of the accident, she began her commute that morning at the normal time, and was en route to the healthcare facility—as she did at the beginning of every weekday shift. And as always, she wasn’t being compensated for her commute time. In fact, nothing about her actions that morning before the accident were special or uncustomary. While the employee hadn’t initially been scheduled to work that day because it was the Memorial Day holiday, the hospice asked her to work.  And this request was unremarkable as the job description for CNAs explicitly provides that working on holidays will occasionally be required.

As a result, the trial court did not err in granting the hospice’s motion for summary judgment. Graham v. Hospice Savannah, Inc.,  2023 Ga. App. LEXIS 267, 2023 WL 3913961 (Ga. App. June 9, 2023).

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