In this personal injury case, we granted Georgia Messenger Service, Inc.’s (“GMS”) application for interlocutory appeal in order to review whether the trial court erred in denying GMS’s motion for summary judgment. For the reasons noted infra, we affirm.
Viewing the evidence in the light most favorable to the non-movant, Vernetta Bradley, 1 the record shows that on the afternoon of September 20, 2005, courier John W S. Wise, Jr. arrived in front of the Palisades Office Park in Dunwoody to make one of his many deliveries that day on behalf of GMS. Wise attempted to park in the service parking spot designated for deliveries, but it was occupied at that time by Bradley’s security-guard vehicle, which she refused to move. Under time pressure and with many more scheduled deliveries, Wise parked directly in front of the building, “waved-off’ Bradley’s vocalized objections to his doing so, and then ran inside to deliver the package. Less than a minute later, Wise emerged from the building to find Bradley applying a “boot” to his vehicle. Wise asked Bradley not to place the boot on his car, but she refused to accommodate his request. At this point, Bradley claims that Wise “violently kicked [her] in the head,” 2 threw the boot into the bushes, and then drove away. Wise continued making deliveries for GMS until 10:00 or 11:00 p.m. that evening.
Thereafter, Bradley sued Wise for assault and battery, and further asserted that GMS was both vicariously liable under the doctrine of respondeat superior for Wise’s conduct and independently liable for its negligent hiring, negligent retention, and negligent entrustment of Wise. In Georgia Messenger Service, Inc. v. Bradley, 3 we reversed the trial court’s denial of summary judgment to GMS on Bradley’s negligence claims after concluding that they failed as a matter of law, 4 but then remanded the case to the trial court to consider whether Wise was an employee of GMS and, if so, whether he was working within the scope of that employment at the time of the incident so as to extend vicarious liability to GMS. 5 On remand, the trial court denied GMS’s motion for summary judgment, concluding that genuine issues of material fact remained as to whether (1) GMS controlled the time, manner, and method of Wise’s delivery services, such that he was an employee rather than an independent contractor, and (2) Wise’s allegedly tortious conduct was within the scope of that employment relationship. This appeal follows.
1. GMS contends that the trial court erred in denying summary judgment as to Bradley’s claims, arguing that it cannot be held vicariously liable for the alleged actions
In considering GMS’s argument, we begin by noting that an employer is generally not liable for the torts of an independent contractor. 6 The historical reason for this common-law rule is that because “the employer has no right of control over the manner in which the work is to be done, it is to be regarded as the contractor’s own enterprise, and he, rather than the employer, is the proper party to be charged with the responsibility for preventing the risk[.]” 7 To this end, when a “contract of employment clearly denominates the other party as an independent contractor, that relationship is presumed to be true unless the evidence shows that the employer assumed such control.” 8
The test for determining whether an employer is exercising a degree of control over an independent contractor’s work such that the law will deem the independent contractor to be a servant of that employer — thus making the employer vicariously liable for any wrongful acts committed by the contractor — is whether
the contract gives, or the employer assumes, the right to control the time, manner, and method of the performance of the work, as distinguished from the right to merely require certain definite results in conformity with the contract. 9
Put another way, “the test is essentially whether the contractor has a bona fide existence apart from the employer or functions instead as the employer’s alter ego.” 10
Here, the employment contract between Wise and GMS designates Wise as an independent contractor. Nevertheless, we agree with the trial court that there is a genuine issue of material fact as to whether the degree of control exercised by GMS over Wise’s delivery services was such that GMS may be held liable for Wise’s allegedly tortious actions against Bradley. Specifically, Wise maintains that, as a practical matter, he (1) “was to perform duties on behalf of [GMS] as the duties were assigned to [him],” (2) “had no choice as to which jobs [he] performed,” 11 and (3) “could only work for [GMS], and that [he] could work for no other courier companies[.]” Moreover, despite the fact that GMS’s contract with Wise designated him as an independent contractor, Wise’s claim that he was only permitted to work for GMS is substantiated, to some degree, by this same contract, which prohibited him from allowing his vehicle “to be used by anyone other than [GMS].” Thus, the trial court did not err in denying GMS summary adjudication on this particular basis. 12
2. Next, GMS argues that even if Wise was its servant at the time he allegedly harmed Bradley, it is still not liable for Wise’s actions because they were not done in the scope of his employment or in furtherance of GMS’s business. We disagree.
And here, we conclude that a genuine issue of material fact remains as to whether, at the time of the alleged assault on Bradley, Wise was acting in furtherance of GMS’s business and within the scope of same. Specifically, Wise testified that, at the time of his altercation with Bradley, he was under an enormous amount of pressure from GMS, claiming that (1) his supervisor at GMS had been “riding his ass,” (2) he was rushing to get the packages assigned to him by GMS delivered, and (3) he had been assigned more packages than he could possibly deliver within the time allotted by GMS. 17 Wise maintains that this is why, that at the time of the incident in question, he illegally parked his vehicle in order to timely deliver the package, and why he then confronted Bradley about placing a boot on his vehicle for having done so. 18 Indeed, Wise testified that after he made contact with Bradley and she fell backwards, he pulled off the boot, tossed it in the bushes, and drove away, so that he could “get out of there” and “finish his deliveries.” In this respect, it matters not that Wise’s altercation with Bradley may have been motivated, in part, by personal malice. 19 Wise’s statement that his “concern was to get out of there and . . . finish [his] deliveries,” which were all for GMS and which were being done under intense time pressure imposed on him by GMS, is enough for a jury to conclude that Wise’s alleged assault of Bradley was done within the scope of GMS’s business and in furtherance of its interests. 20
I was pissed because ... I was in a real hurry and I knew I was going to be — this the second day of — I had worked fifteen hours the day before, I was working eighteen hours that day and, you know, tired, in a hurry, you’re not thinking . . . . I just think I was under a lot of pressure and with a lack of sleep and, you know, a lot of pressure to get stuff done.
For all of the foregoing reasons, we affirm the trial court’s denial of GMS’s motion for summary judgment.
Judgment affirmed.
Notes
See, e.g., Werner Enters. v. Lambdin,
In contrast, Wise asserts only that he “pushed [Bradley] with his foot.”
Id. at 249-50 (2).
We were precluded from conducting meaningful review of these issues because GMS failed to timely file the deposition transcripts of both Bradley and Wise. Id. at 249 (1).
See OCGA § 51-2-4 (“An employer generally is not responsible for torts committed by his employee when the employee exercises an independent business and in it is not subject to the immediate direction and control of the employer.”).
Peachtree-Cain Co. v. McBee,
McGuire v. Ford Motor Credit Co.,
Slater v. Canal Wood Corp. of Augusta,
Id.
During his deposition, Wise noted that on days when he was not scheduled to work he would sometimes receive calls from GMS asking him if he was available to make deliveries, and that he always agreed to do so when he received such requests “because if you don’t, then you don’t get any more work . . . they just stop calling.”
Cf. American Ass’n of Cab Cos., Inc. v. Parham,
Drury v. Harris Ventures, Inc.,
Drury,
See, e.g., Drury,
Drury,
During his deposition, Wise stated
During his deposition, Wise was asked whether GMS had a policy addressing how couriers were “to handle a situation when a vehicle was booted.” In response, he noted that while GMS had no such policy, “[GMS] would prefer you not get booted because it would slow you down.”
See, e.g., Rogers v. Fred R. Hiller Co. of Ga.,
See, e.g., Brown v. AMF Bowling Centers,