While commuting to work in a vehicle that he personally owned, David Redic struck and severely injured a pedestrian crossing the street. Following the collision, the injured pedestrian, Peyman Far-zaneh, brought this civil tort action against Redic’s employer, Merit Construction Company, Inc., seeking to recover damages for his injuries. The trial court granted Merit’s motion for summary judgment, concluding that the uncontroverted evidence showed that Redic was not acting in the course and scope of his employment when he injured Farzaneh, and, therefore, that Merit could not be held liable under the doctrine of respondeat superior. For the reasons discussed below, we affirm.
On appeal from a trial court’s grant of summary judgment, our review of the record is de novo, and we construe the facts and all inferences drawn from them in the light most favorable to the nonmoving party.
Ins. Co. &c. of Pa. v. APAC-Southeast,
The record shows that Merit Construction performs “build outs” of commercial and retail office space and has between 15 to 20 jobs in progress at any given time. Merit has approximately 30 to 35 “field employees,” i.e., laborers who work at assigned job sites. It does not have a central office where all of its field employees report at the
One of Merit’s field employees was David Redic. Beginning on September 30, 2008, Merit assigned Redic to work at a specific job site in Atlanta. 1 On October 3, 2008, Redic was due at the job site at 6:00 a.m. Shortly before that time, while driving directly from his home to the assigned job site, Redic struck and severely injured Farzaneh as he was crossing a street on foot. No one else was in the vehicle with Redic when the collision occurred.
When he struck Farzaneh, Redic was driving his personally owned pickup truck, which he had purchased from Merit in July 2007. Merit had sold the truck to Redic at a price below fair market value and on favorable payment terms. By the time of the collision, Redic had paid in full for the truck, and title had been transferred to him. Redic, not Merit, paid for insurance on the truck. Although Merit would from time to time provide maintenance and repairs for private vehicles its employees used for company-related business, Merit did not arrange for any maintenance or repairs to be performed on Redic’s truck after the sale. The parties dispute whether part of Redic’s compensation included a predetermined “vehicle allowance” or stipend for using his personal truck rather than a company vehicle to perform work-related tasks. According to Merit’s office manager, the stipend was not intended to reimburse employees for travel to and from work in their personal vehicles, but rather for company-related business such as picking up supplies and transporting them to a job site.
In his pickup truck, Redic had a Merit-issued “direct connect” cellular telephone and a Merit-issued power screw gun. 2 He did not make or receive any calls on the phone prior to or at the time of the collision. Redic was not bringing any equipment or supplies to the job site for other Merit employees.
Farzaneh commenced this personal injury suit against Merit, contending that it was liable for his injuries under the doctrine of respondeat superior. Merit answered and denied liability. Following discovery, both parties moved for summary judgment. After briefing and a hearing, Farzaneh withdrew his motion for summary judgment, and the trial court granted Merit’s motion for summary judgment. In its order, the trial court concluded that the uncontro-verted evidence showed that when the collision occurred, Redic was simply commuting to work in a vehicle that he personally owned. As such, the trial court concluded that there was no rebuttable presumption that Redic was acting in the scope and course of his employment under the burden-shifting framework set out in
Allen Kane’s Major Dodge v. Barnes,
Farzaneh contends that the trial court erred in granting summary judgment to Merit because genuine issues of material fact exist as to whether Redic was acting in the course and scope of his employment when the collision occurred. We disagree.
Under Georgia law,
[t]o hold a master liable for a tort committed by his servant, it must appear that at the time of the injury the servant was engaged in the master’s business and not upon some private and personal matter of his own; that is, the injury must have been inflicted in the course of the servant’s employment. 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.
(Citation omitted; emphasis in original.)
Clo White Co. v. Lattimore,
“[I]t is well established that an employee on the way to work is not in the course of his employment but rather is engaged in a personal activity.”
Riel v. Paulding County Bd. of Ed.,
The presumption discussed in
Allen Kane’s Major Dodge
does not apply under the particular facts of this case, and so the burden never shifts to Merit. The uncontroverted evidence shows that when the collision occurred, the pickup truck driven by Redic was personally owned by him. Redic had paid for the truck in full and held its title free and clear of an interest once held by Merit. And although Farzaneh emphasizes that Merit originally owned the truck and previously sold it to Redic at a price below fair market value and on favorable payment terms, the pertinent issue is the status of the truck
at the time of the collision.
See
Clo White Co.,
Given that the presumption of
Allen Kane’s Major Dodge
does not apply, there is an absence of competent evidence to support a finding that the present case falls outside the longstanding rule that commuting to work is a purely personal matter. Nevertheless, Farzaneh contends that this case involves “special circumstances” warranting the imposition of respondeat superior liability upon
Merit. See
Hunter v. Modern Continental Constr. Co.,
Farzaneh also emphasizes that when hired by Merit, Redic was required to execute a form insurance document entitled “Commercial Auto Fleet Safety Policy,” which provided in part: “Operation of motor vehicles is a necessary part of our business operations. Operation of motor vehicles exposes our company to losses, financially through damaged property, and injury to employees or injuries to members of the general public and to our company’s reputation.” The document went on to list criteria that would disqualify a Merit employee from being one of its “authorized drivers,” with that term defined to include “drivers of company owned vehicles, employees operating personal vehicles on company business and any authorized family members.” Farzaneh contends that this policy document shows that employees’ use of their personal vehicles was essential to Merit’s business, and thus indicates that Redic’s driving of his personal vehicle to work fell within the course and scope of his employment. We are unpersuaded. The policy document is simply intended to set out what will disqualify an employee from being an “authorized driver” for Merit and should be read no broader than that. Furthermore, the policy document refers specifically to personal vehicles operated “on company business,” and there is nothing in the document to suggest that merely commuting to work at the beginning of the day was intended to constitute “company business.” Therefore, Redic’s execution of the policy document does not create a special circumstance justifying the imposition of liability upon Merit.
Additionally, Farzaneh contends that this case involves a special circumstance because Redic did not commute to a fixed work location at the beginning of every workday. According to Farzaneh, there should be an exception to the rule that an employee commuting to work is engaged in a purely personal activity, where the employee is traveling from home directly to an assigned work site, as opposed to traveling first to a central office before dispersing to a work site.
4
But Farzaneh’s position is inconsistent with
Braddy,
where we upheld the grant of summary-judgment to the employer, a plumbing and construction company, even though the employee was “driving from his home directly to the work site” at the time of the morning accident.
Farzaneh relies upon
Intl. Business Machines v. Bozardt,
Even if the facts in this case fail to disclose any special circumstances, Farzaneh maintains that this case involves a “special mission” from which a jury could find that Redic was acting within the course and scope of his employment. It is true that an employer can be held liable under respondeat superior principles where the employee has undertaken a special mission at the direction of his employer. See
Hunter,
Lastly, we note that throughout his appellate brief, Farzaneh relies upon workers’ compensation cases in arguing that Merit should be held vicariously liable for the injuries caused by Redic. See, e.g.,
Mark the Mover v. Lancaster,
For these combined reasons, the trial court did not err in granting Merit’s motion for summary judgment. Although the underlying facts of this case are indeed tragic, the uncontroverted evidence shows that at the time of the collision, Redic was engaged in the purely personal matter of commuting to work and, therefore, was not acting in the course and scope of his employment when he injured Farzaneh. It follows that, as a matter of law, Merit cannot be held vicariously liable for Farzaneh’s injuries under the doctrine of respondeat superior.
Judgment affirmed.
Notes
The parties dispute whether Merit assigned Redic to work as a foreman or a carpenter at the job site in question.
The “direct connect” feature allowed Redic to use his cellular phone in a manner similar to a walkie-talkie when speaking with other Merit employees.
Special circumstances do exist where at the time of the collision, an employee is talking on his cell phone discussing matters of company business or is distracted by an incoming business-related call. See
Hunter,
We note that this is not a case where the employee was traveling between job sites once the workday has already begun.
To the extent that
Bailey v.
Murray,