Atlanta Injury Lawyer Blog

Articles Posted in Vicarious Liability

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photo_21759_20120610Although employers are not liable for every injury caused by an employee, the doctrine of respondeat superior does make an employer liable for certain injuries caused by an employee acting within the scope of his or her employment. As to be expected, however, there are certain exceptions to application of respondeat superior doctrine that will shield an employer from liability even when the employee is negligent and acting within the scope of employment. Among these various exceptions is the borrowed-servant rule, which insulates an employer from liability when the employer lends the employee to another, and the employee commits a negligent act while engaged in work for the other party. In a recent decision, Garden City v. Herrera , the Georgia Court of Appeals examined the applicability of the borrowed-servant rule to a motor vehicle accident involving a police officer.

The motor vehicle collision at issue in this case occurred in July 2010, when a car being driven by a police officer employed by the Garden City Police Department collided with a car being driven by another. The officer had been employed with the city since 2007 and since the nascent period of his employment was part of a multi-jurisdictional narcotics task force. The task force was created in 1994, when Chatham County entered into agreements with various municipal law enforcement agencies. Per these agreements, local law enforcement agencies assigned officers to a 27-month tour with the countywide Counter Narcotics Team, which was run by a commanding officer employed by the county. At the time of the accident, the officer was driving from the location of one task force operation to another, under the orders of a supervising task force officer. Following the accident, a lawsuit was brought on behalf of the seriously injured driver against Garden City, Chatham County, and several other defendants. Following the close of discovery, Garden City moved for summary judgment, arguing that it could not be held liable because the accident occurred when the employee was a borrowed-servant of the county. The trial court denied the motion for summary judgment, finding that there was an issue of material fact concerning whether the county retained exclusive authority to fire the officer. If the county did not retain such authority, the borrowed-servant doctrine would not apply.

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Tractor trailer wheelsAnyone who drives in Atlanta knows that Interstate 75 is a busy highway and that accidents along this stretch of road are far from unusual. Among the sorts of motor vehicle accidents that are particularly common are those involving tractor-trailers traveling to or through the metropolitan area. Given their size, tractor-trailers pose unique risks to other motorists and require particular care in their operation. In fact, in a recent case, Dogan v. Buff, the Georgia Court of Appeals addressed whether it was appropriate for a trial court to grant summary judgment in favor of a tractor-trailer driver and his employer following a multi-vehicle accident on I-75.

The accident at issue in this case occurred on February 18, 2009. One driver was heading north on I-75 near Roswell Road in a van owned by his employer, Royalty Transportation. The driver had just taken a patient at Emory Hospital and was heading back to retrieve a different patient. It had just rained, and the road was wet. At the same time, a second driver was hauling various dialysis supplies to Chattanooga in a tractor-trailer owned by his employer, Rockwell Transportation. The trailer was loaded with 80,000 pounds of goods, and Rockwell’s trucking manual required that its drivers maintain one truck length between the tractor-trailer and the vehicle in front of it for every 10 mph the trailer is traveling. The tractor-trailer was following the van operated by the first driver when two other vehicles traveling along the road collided as a result of an errant merging of lanes. The driver of the van changed lanes and slammed the brakes to avoid hitting the cars that collided, and the driver of the tractor-trailer, which was only traveling behind the van by three passenger car lengths, did the same but rear-ended the van. Both vehicles sustained moderate damage, and the driver of the van was taken from the scene to receive medical care. Following the accident, the first driver sued the tractor-trailer driver and Rockwell, alleging that his injuries were a result of the tractor-trailer driver’s negligent and reckless operation of the vehicle. Following the conclusion of discovery, the defendants moved for summary judgment, and the trial court granted the motion.

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photo_9359_20090128Most cases of negligence feature only a single defendant whose conduct is at issue. However, there are instances when the independent negligent conduct of multiple third parties leads to a single injury, and such cases can create confusion for assigning liability. This type of predicament is featured in a recent case from the Georgia Court of Appeals, Granger v. MST Transportation, LLC. In this case, a driver’s car was errantly struck by a negligent driver and, as a result, was sent careening into a tractor-trailer that had been negligently left on the side of the road by a different driver who ran out of fuel.

Prior to the accident, the driver of the trailer, who is employed by MST Transportation, had returned from a trip to Florida and deposited his trailer at the employer’s depot. As he was driving the trailer to the storage site in Atlanta, the driver ran out of gas while driving along the right lane of Mooreland Avenue. The driver turned off the trailer’s flashers, placed three reflective cones near the trailer, called the employer to let it know of the situation, and set off to retrieve fuel. He returned to the trailer several times with fuel before the accident but was unable to start it. While the truck driver was away on his third trip for fuel, the plaintiffs were headed down Mooreland Avenue with their 10-month-old son. The car was in the middle lane as they approached the trailer and were suddenly struck in the rear by another driver and propelled into the trailer, which was only 30 to 40 feet away at the time they were rear-ended. The two plaintiffs and their son were injured in the crash.

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OLYMPUS DIGITAL CAMERAAlthough many organizations seek and openly welcome volunteer support, a recent decision from the Georgia Court of Appeals, Allen v. Zion Baptist Church of Braselton, shows that one should always be cautious about those who offer their time. In Allen, the Court of Appeals needed to determine whether it was appropriate for the trial court to grant summary judgment in favor of Zion Baptist Church in a suit involving the alleged sexual assault of a minor by one of the church’s volunteers.

The alleged act of sexual assault occurred on the afternoon of October 24, 2010 following the church’s homecoming festival. The volunteer, who became a member of the church only weeks before requesting to volunteer, gave in an application to participate in the church’s youth ministry on September 15, 2010. The application detailed Zion’s child protection policy, which required that all aspiring volunteers set to work with preschool, children, or youth were required to maintain church membership for three months prior to volunteering and submit two reference forms and written consent to a background check. An administrative assistant at Zion Baptist found the application suspicious, sensed that something was odd about the volunteer, and voiced these concerns to the youth pastor. However, the youth pastor took no further action with the application, although the youth pastor maintains that he did not receive the application until October 20, 2010.

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photo_1622_20060531Although cases involving employer liability based on either direct or vicarious theories of tort law are far from uncommon, the Georgia Court of Appeals recently rendered a decision concerning a novel issue regarding employer liability and O.C.G.A. § 51-12-33 (c) of Georgia’s Apportionment Statute. The case, Zaldivar
 v.
 Prickett (PDF-downloadable link), dealt with whether a defendant in a personal injury suit could invoke O.C.G.A. § 51-12-33 (c) to apportion damages against a non-party employer whom the defendant claimed negligently entrusted the vehicle to the plaintiff.

Zaldivar arose from a motor vehicle accident on October 9, 2009, when the plaintiff and the defendant in this case collided at an intersection. The plaintiff asserted that he was clearing the intersection by turning left after the light turned red, and the defendant claimed that the plaintiff turned left in front of her as she entered the intersection on a yellow light. Both parties were injured in the accident, and it is undisputed the plaintiff was driving his employer’s vehicle at the time of the collision, which took place as the plaintiff was headed to a sales call. A little less than two years thereafter, the plaintiff filed the complaint in this action, to which the defendant answered. Although the defendant had also been injured in this case, she did not assert any counterclaims. However, the defendant did assert non-party fault as an affirmative defense and filed a “Notice of Fault of Non-Party” pursuant to O.C.G.A. § 51-12-33 (d)(1). The defendant asserted that the plaintiff’s employer was at fault by negligently entrusting the vehicle to the plaintiff despite having received several calls in the past complaining about the plaintiff’s driving.

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Road goes into the distanceIn a recent decision, the Georgia Court of Appeals looked at common questions concerning when an employer may be held liable for the acts of an employee. The facts underlying this decision, CGL Facility Management, LLC v. Wiley, are incredibly unfortunate. While driving to Augusta in a pickup truck provided by his employer, the employee at issue in the litigation crossed the center line on a stretch of highway and collided head-on with a vehicle being driven by the decedent. Shortly after the accident, the employee underwent a blood test that came back positive for the presence of both amphetamine and methamphetamine. The decedent’s husband, acting as a personal representative for her estate, brought a wrongful death suit against both the driver and his employer, CGL Facility Management.

At the trial level, the plaintiffs predicated the employer’s responsibility in this case on several differing theories of vicarious liability, including respondeat superior and negligent hiring, retention, training, entrustment, and maintenance. Following discovery, CGL moved for summary judgment, arguing that it could not be held liable based on the plaintiff’s proffered theories of liability. Without explanation, the trial court denied the motion for summary judgment but granted CGL’s application for immediate review by the appellate court on the issue. The appeals court reversed the trial court determination on the claims of respondeat superior and negligent hiring, retention, training, and maintenance, but it agreed with the trial court that the employer could be liable under a negligent entrustment theory of liability.

Undoubtedly, Georgia law does not make an employer liable for any and all injuries caused by the acts of employees. Instead, an injured party must demonstrate that an employee’s conduct falls within some applicable theory of vicarious liability that would make the employer liable for the harmed caused. The most common form of employer vicarious liability is known as respondeat superior, which essentially makes an employer liable for injuries that occur within the employee’s scope of employment. In Georgia, when an employee is involved in a collision while operating a vehicle owned by an employer, a presumption is created that the employee was acting within the scope of his or her employment. However, this is a rebuttable presumption, and the appeals court concluded that CGL had rebutted the presumption, since the evidence showed that the employee was driving to work at the time of the crash and not actively engaged in any business for the employer. In fact, the employee held a supervisory position and would rarely use the vehicle while on the job. Since the plaintiff did not proffer additional direct or circumstantial evidence demonstrating that the employee was acting within the scope of his employment, summary judgment in favor of CGL was appropriate.

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