283 So.3d 34
Miss.2019Background
- Senah Carter, a "jack driver" for Mar-Jac, regularly drove himself to work and for ~3 weeks drove coworkers Keannie Love and Lishanay Wilks to the plant; they paid him small amounts for gas.
- On September 22, 2015, while Carter was driving to work with Love and Wilks as passengers, his vehicle hit a school bus; both passengers died.
- Plaintiffs sued Carter and Mar-Jac (respondeat superior) for negligence/wrongful death, relying on testimony that a supervisor (Leo Barnes) told Carter to "bring them on down" when Carter sought jobs for the women.
- At summary judgment, Carter repeatedly testified he was not required, paid, or disciplined for transporting the women; his later affidavit claiming the rides were directed by Mar-Jac contradicted his deposition and was discredited.
- The trial court denied Mar-Jac's summary-judgment motion; the Mississippi Supreme Court (majority) reversed, holding Carter was not acting in the course and scope of employment as a matter of law.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Mar-Jac is vicariously liable under respondeat superior for Carter’s driving when the accident occurred | Carter was on a "special mission" for Mar-Jac; Barnes authorized/expected Carter to bring the women, and the rides directly benefitted Mar-Jac | Carter was not performing work "of the kind" he was employed to do, not paid or on the clock, and testified he was not required to provide transportation | Reversed trial court; summary judgment for Mar-Jac — undisputed evidence shows Carter was not acting within scope of employment |
| Whether affidavits create a genuine fact issue to defeat summary judgment | Carter’s and Patricia Love’s affidavits state the rides were directed by Mar-Jac and part of Carter’s normal duties | Carter’s deposition contradicts his affidavit; Patricia Love’s affidavit contains hearsay and lacks personal knowledge admissibility | Affidavits were insufficient: Carter’s affidavit contradicted his deposition; Patricia’s was hearsay and inadmissible for summary-judgment purposes |
| Applicability of "coming-and-going" rule / special-mission exception | Plaintiffs: exception applies because Carter transported needed employees at employer’s request, directly benefiting Mar-Jac | Mar-Jac: transportation was ordinary commute (home to work), off the clock and not of the kind authorized by employer | Majority: coming-and-going rule bars vicarious liability here; special-mission exception not shown by admissible evidence |
| Standard for summary judgment when deposition/affidavit conflict exists | Plaintiffs: factual disputes (including supervisory statements) warrant jury determination | Mar-Jac: nonmovant cannot create a genuine issue by submitting an affidavit that directly contradicts prior deposition testimony without explanation | Court holds that prior deposition controls; nonmovant cannot manufacture dispute via contradictory affidavit — summary judgment appropriate |
Key Cases Cited
- Commercial Bank v. Hearn, 923 So. 2d 202 (Miss. 2006) (respondeat superior requires employee act be of kind employed to perform; indirect employer benefit insufficient)
- Marter v. Scott, 514 So. 2d 1240 (Miss. 1987) (adopts Restatement (Second) of Agency § 228 scope-of-employment factors)
- White’s Lumber & Supply Co. v. Collins, 191 So. 105 (Miss. 1939) (doctrine of respondeat superior tied to employer’s right to direct and supervise performance)
- Brown v. Bond, 1 So. 2d 794 (Miss. 1941) (master-servant relation does not exist during ordinary travel between home and workplace)