Coe v. Carroll & Carroll Inc.Coe v. Griffin Contracting Inc.

• Decision Date: 17 October 2011
• Docket Number: Nos. A10A1717,A10A2338.,s. A10A1717
• Court: Georgia Court of Appeals
• Parties: COEv.CARROLL & CARROLL, INC.Coev.Griffin Contracting, Inc.

308 Ga.App. 777

709 S.E.2d 324

11 FCDR 1181

COE

v.CARROLL & CARROLL, INC.Coe

v.Griffin Contracting, Inc.

Nos. A10A1717

A10A2338.

Court of Appeals of Georgia.

March 25, 2011.Certiorari Denied Oct. 17, 2011.

Savage & Turner, R.B. Turner, Ashleigh Ruth Madison, Savannah, for Coe.Ellis, Painter, Ratterree & Adams, Kimberly Cofer Harris, Ryburn Clay Ratterree, Savannah, for Carroll & Carroll, Inc.Barrow & Ballew, Walter W. Ballew III, Travis D. Windsor, Savannah, R. Stephen Sims, Springfield, for Griffin Contracting, Inc.ELLINGTON, Chief Judge.

This personal injury action, pending in the State Court of Chatham County, arose from a vehicular accident in which Christopher Coe (“Coe”) crashed his car into a tractor-trailer that Melvin Williams had parked on the side of the road. Following Coe's death, the action is now being prosecuted by his widow, Kathleen Coe, against Williams, Griffin Contracting, Inc. (“Griffin”), and Carroll & Carroll, Inc. (“Carroll”). Kathleen Coe appeals a number of interlocutory orders that are adverse to her, and we have consolidated these cases for decision.

The primary issue is whether either Griffin (which employed Williams as a truck driver) or Carroll (a contractor that hired the tractor-trailer and driver from Griffin) can be held derivatively liable for Williams' alleged negligence in parking the tractor-trailer with its back end protruding into the roadway. The trial court concluded that neither Griffin nor Carroll can be held liable for Williams' alleged negligence and, therefore, granted their motions for summary judgment, leaving the case pending against Williams only. In ruling on Carroll's motion for summary judgment, the trial court concluded that, as a matter of law, Williams was not Carroll's borrowed servant at the time of his alleged negligence and that, therefore, Carroll cannot be held liable for Williams' conduct. In ruling on Griffin's motion for summary judgment, the trial court concluded that, by detouring 2.5 miles away from his route in order to pick up lunch, Williams was, as a matter of law, on a purely personal mission at the time of his alleged negligence and was not acting in the scope of his employment with Griffin or furthering Griffin's business and that, therefore, Griffin cannot be held liable under the doctrine of respondeat superior. And, based on its conclusion that Williams' alleged negligence was not committed within the scope of his employment with Griffin, the trial court granted Griffin's motion for summary judgment on Kathleen Coe's remaining claim against Griffin, for negligent hiring and retention.

In addition, the trial court overruled in part Kathleen Coe's objections to certain medical testimony and denied her motion in limine to exclude evidence of Coe's past drug use and the methadone drug therapy he was receiving at the time of the accident.

In Case No. A10A1717, Kathleen Coe appeals from the grant of summary judgment in favor of Carroll. In Case No. A10A2338, she appeals from the grant of summary judgment in favor of Griffin and from the evidentiary rulings. For the reasons explained below, we affirm in part and reverse in part.

Case No. A10A1717

1. In order to prevail on a motion for summary judgment under OCGA § 9–11–56,

the moving party must show that there exists no genuine issue of material fact, and that the undisputed facts, viewed in the light most favorable to the nonmoving party, demand judgment as a matter of law. Moreover, on appeal from the denial or grant of summary judgment the appellate court is to conduct a de novo review of the evidence to determine whether there exists a genuine issue of material fact, and whether the undisputed facts, viewed in the light most favorable to the nonmoving party, warrant judgment as a matter of law.

(Citations omitted.) Benton v. Benton, 280 Ga. 468, 470, 629 S.E.2d 204 (2006).

Viewed in the light most favorable to the appellant, the record shows the following. In June 2006, Carroll was building a section of Highway 17 in Chatham County under contract with the Georgia Department of Transportation. Carroll in turn hired Griffin to supply, at an hourly rate, a tractor, with a trash trailer, and a driver to haul away debris that was generated by the project. There was no written contract between Carroll and Griffin. Griffin's owner assigned Williams to the job. Although Carroll lacked the authority to terminate Williams from his employment with Griffin, it had the authority to tell Griffin to send a different driver in place of Williams.

No one from Griffin directly supervised Williams while he was hauling debris for Carroll. Instead, Carroll's foreman dictated what time Griffin's driver and tractor-trailer should arrive at the job site and directed Williams in terms of when to take a particular load to a landfill, where to take each load (to which landfill), whether and when to take a break, and when to cease work for the day.

On June 30, 2006, Williams hauled a load of debris from the Carroll job site to the landfill, dumped the load, and then stopped at a church to pick up a boxed lunch he had ordered; he planned to eat lunch in his truck while he went back to the job site. According to Williams, he was “on the clock” at the time he parked Griffin's tractor-trailer at the church. Williams deposed that Griffin's tractor-trailer drivers, including himself, were not given time to take a break to stop and eat lunch. Instead, they would “steady roll,” by getting take out and eating on the road or back at the job site. Griffin later paid Williams for all the hours he worked that day, without deducting any break time, and Griffin billed, and received payment from, Carroll for all of that time.

At 12:50 p.m., within seconds after Williams parked the tractor-trailer on the side of the road in front of the church, Coe crashed into the rear of the tractor-trailer, which protruded two feet, seven inches into the roadway, and he sustained serious injuries.

In pursuing a claim against Carroll for Williams' alleged negligence, the appellant contends that, at the time of his alleged negligence, Williams acted as an agent of both Carroll and his employer, Griffin.

Because Carroll hired the use of Griffin's tractor-trailer and driver, the determination of whether Carroll was vicariously liable for Williams' negligence is controlled in part by Georgia's laws governing bailments.¹ OCGA § 44–12–62(b) provides that “[i]f [a] bailor sends his own agents with the thing bailed, the hirer shall not be liable for the acts of such agents but shall only be liable either to the bailor or to third persons for the consequences of his own directions and for gross neglect.” It is undisputed in this case that the bailor (Griffin) sent its own agent (Williams) with the thing bailed (the tractor with attached trash trailer). Thus, under OCGA § 44–12–62(b), Carroll, as the hirer, is liable only for “the consequences of [its] own directions or for [its] gross negl[igence].” As the Supreme Court of Georgia has explained, “[t]he [statute's] reference to the hirer's ‘own directions' ... refers to the borrowed servant doctrine.” Tim's Crane & Rigging v. Gibson, 278 Ga. 796, 797, 604 S.E.2d 763 (2004). In the case of a bailment, such as in the case at bar, an employee of the bailor is a borrowed servant of the hirer (1) if the hirer “had complete control and direction of the [bailor's employee] for the occasion,” whereas the bailor had no such control, and (2) if the hirer “had the exclusive right to discharge the [bailor's employee].” (Citation and punctuation omitted.) Id. Conversely, where there is a rental of a motor vehicle together with a driver, the driver is not a borrowed servant of the hirer if the hirer has no supervision or control of the driver's operation of the vehicle and has “no right to discharge the driver and take over the operation of the vehicle himself or put it in the hands of another to operate[.]” (Citation and punctuation omitted.) Montgomery Trucking Co. v. Black, 231 Ga. 211, 213, 200 S.E.2d 882 (1973). Under such circumstances, “the owner of the vehicle who employs the driver[ (that is, the bailor) ], rather than the hirer, is responsible for the driver's negligence.” (Citation and punctuation omitted.) Id.

With regard to the first factor, that is, the control and direction of the employee, Georgia courts have held that a bailor's employee is a borrowed servant of the hirer as a matter of law where an express contract between the hirer and the bailor “explicitly sets forth each requirement of the borrowed servant doctrine[,]” that is, where the contract grants the hirer the right to control the manner, method, and means of the employee's execution of the work and the right to terminate the employee from the hirer's job. (Citations and punctuation omitted.) Tim's Crane & Rigging v. Gibson, 278 Ga. at 798, 604 S.E.2d 763. In such a case, the hirer accepts the status of an employer for the duration of the contract. Id.² A bailor's employee is not a borrowed servant of the hirer as a matter of law, on the other hand, where, by an express contract between the hirer and the bailor, the bailor acknowledges that it retains control of its employee and the hirer “waive[s] or renounce[s]” responsibility for the negligence of the bailer's employee. (Citation omitted.) Id. Because “the contract between the parties is controlling as to their responsibilities thereunder,” where an express contract establishes that a bailor's employee is, or is not, the hirer's borrowed servant, the amount of control actually exercised by the hirer or by the bailor over the bailor's employee is not in issue and summary judgment will often be appropriate. Montgomery Trucking Co. v. Black, 231 Ga. at 213, 200 S.E.2d 882.

In cases where each requirement of the borrowed servant doctrine is not explicitly set forth in an express contract, however, such as the instant case, the relationship between the hirer and...