Cotton v. Prodigies Child Care Mgmt., LLC

• Decision Date: 25 February 2022
• Docket Number: A21A1457
• Citation: 870 S.E.2d 112
• Parties: COTTON v. PRODIGIES CHILD CARE MANAGEMENT, LLC, d/b/a University Childcare Center.
• Court: Georgia Court of Appeals

870 S.E.2d 112

COTTON

v.PRODIGIES CHILD CARE MANAGEMENT, LLC, d/b/a University Childcare Center.

A21A1457

Court of Appeals of Georgia.

February 25, 2022

Reconsideration Denied March 21, 2022

John Robert Autry, Lawrenceville, Blaine Alexander Norris, for Appellant.

M. Steven Heath, Athens, Matthew Glenn Moffett, Atlanta, Matthew Allen Moseley, Athens, John Karl Schultz Schultz, for Appellee.

Gobeil, Judge.

Following an automobile collision, Andrea Leah Cotton filed a personal injury complaint against Bianca Bouie and Bouie's then-employer, Prodigies Child Care Management, also known as University Childcare Center ("University Childcare"). Ultimately, the trial court granted summary judgment to University Childcare, rejecting Cotton's theory of respondeat superior. Cotton appeals, arguing that the trial court erred in granting summary judgment because there was sufficient evidence in the record to render the question of respondeat superior a jury issue. For the reasons set forth below, we agree with Cotton and reverse the trial court's judgment.

On a ruling of a motion for summary judgment, this Court reviews de novo the law and the evidence, viewing the facts and inferences in favor of the nonmoving party. Holbrook v. Stansell , 254 Ga. App. 553, 553, 562 S.E.2d 731 (2002). The record in this case shows that on January 26, 2018, Bouie, driving a Toyota Camry, caused an accident with a Toyota Tacoma being driven by Cotton. At that time, Bouie was enrolled in a college course in order to advance her education. She had been employed as a daycare teacher at University Childcare since July 2016. University Childcare recently had made Bouie a lead teacher based on her continuing education, but it did not require Bouie to attend any college classes or pay her tuition. To earn extra credit for her college class, Bouie volunteered to perform in a puppet show, and she used her lunch break from work on the day of the accident to attend the show.

When the accident occurred, Bouie was returning to University Childcare from the puppet show, and she was running late. According to Bouie, she had a coworker who had been critical of her, and Bouie feared that this coworker would use her lateness from lunch as a reason to criticize her. Bouie had her phone in her hand while driving. Intending to call University Childcare to let her manager know that she was going to arrive later than anticipated, Bouie looked away from the road to scroll through the contacts on her phone¹ to find the number for University Childcare. Bouie never actually found the phone number she was seeking, nor initiated an actual phone call with her employer.

By the time Bouie looked back at the road, her vehicle was in the median. Trying to avoid a collision, Bouie turned her vehicle more fully, but the oncoming vehicle struck her passenger side. Cotton's truck hit Bouie's car at 2:24 p.m. Bouie admitted that the accident was "a hundred percent" her fault, and Bouie was cited for distracted driving and failure to maintain lane.

Cotton filed a complaint, initially against only Bouie, but later adding University Childcare as a defendant. The amended complaint asserted that University Childcare was responsible for Bouie's actions under a theory of respondeat superior, as she was acting within the scope of her employment and in furtherance of University Childcare's business at the time of the accident. Specifically, Cotton asserted that, although on her lunch break, Bouie was attending an event related to her educational degree during that break, which Cotton asserts was connected to Bouie's employment. And University Childcare had "strict teacher-child classroom ratios to maintain throughout the day," which made Bouie's attempted call to her employer "necessary and in the interest of [University Childcare's] business and personal affairs." Cotton also raised a claim of negligent training and supervision against University Childcare.

After conducting discovery, University Childcare moved for summary judgment. It argued that Bouie was on her lunch break, off the clock, in her own personal vehicle, and using her own personal cell phone at the time of the accident, meaning that she was acting on her own personal business and not within the scope of her employment. After a hearing, the trial court granted University Childcare's motion for summary judgment. This appeal followed.

Summary judgment is proper "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, ... show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law...." OCGA § 9-11-56 (c). Here, Cotton sued University Childcare under a theory of respondeat superior. Under the doctrine of respondeat superior, employers are liable for an employee's tortious conduct when, at the time of the injury, the employee is acting within the scope of her employment and furthering her employer's interests. OCGA § 51-2-2 ; Allen Kane's Major Dodge, Inc. v. Barnes , 243 Ga. 776, 777, 257 S.E.2d 186 (1979).

Whether an employee is acting within the scope of employment is normally a question for the jury "except in plain and undisputable cases." Hankerson v. Hammett , 285 Ga. App. 610, 612 (1), 647 S.E.2d 319 (2007) (citation omitted). "[S]ummary judgment for the employer is appropriate where the evidence and all reasonable inferences drawn therefrom show that the employee was not engaged in furtherance of the employer's business, but was on a private enterprise of the employee's own."

Chorey, Taylor & Feil, P.C. v. Clark , 273 Ga. 143, 144, 539 S.E.2d 139 (2000) (citation omitted).

Georgia law has consistently held that employees do not act within the scope of employment when they are commuting to and from work, see, e.g., Centurion Indus., Inc. v. Naville-Saeger , 352 Ga. App. 342, 345 (1), 834 S.E.2d 875 (2019), nor when they are on their lunch break, Nelson v. Silver Dollar City, Inc. , 249 Ga. App. 139, 145 (4), 547 S.E.2d 630 (2001). There are, however, exceptions to this general rule. In this appeal, the exception at issue² is whether "special circumstances" existed such that Bouie was acting within the scope of her employment while traveling to work. Clo White Co. v. Lattimore , 263 Ga. App. 839, 840, 590 S.E.2d 381 (2003).

Under Georgia law, the "special circumstances" exception may arise when factors such as the following are present during an employee's work commute: (1) carrying work materials in the employee's car; (2) using a phone for work-related calls; (3) receiving a stipend from an employer for a vehicle; or (4) being "on call." DMAC81, LLC v. Nguyen , 358 Ga. App. 170, 173 (1), 853 S.E.2d 400 (2021) (citations omitted). This court has found sufficient evidence of special circumstances to raise a jury question where an employee gets into a car accident while commuting to work when they are on the phone regarding business-related matters or are distracted by an incoming business-related call. See Hunter v. Modern Continental Constr. Co. , 287 Ga. App. 689, 691, 652 S.E.2d 583 (2007) ; Clo White , 263 Ga. App. at 840, 590 S.E.2d 381.

Relying primarily on Clo White and Hunter , Cotton argues that Bouie's use of her cell phone in trying to find her employer's number in order to report her late arrival from lunch constituted "special circumstances" such that she was acting within the scope of her employment at the time of the accident, or at least there is a question of fact for the jury to decide. In Clo White , phone records showed that an employee driving to work made three calls to his employer around the time that he caused a car accident. 263 Ga. App. at 839, 590 S.E.2d 381. The purpose of at least one of the calls was "to inform the night supervisor of [the employee's] arrival time, and to obtain information that would assist [the employee] in fulfilling his duties at the office." Id. We held that evidence showing that the employee "may have" been on the phone regarding matters of company business at the time he caused the car accident was sufficient to create a jury question on the issue of special circumstances rendering him within the scope of employment while driving to work. Id. at 840, 590 S.E.2d 381.

In Hunter , phone records reflected that an employee driving to work made a call to a coworker just before causing a car accident. 287 Ga. App. at 690, 652 S.E.2d 583. The coworker also testified that he called the employee around the time of the accident, but the employee did not answer. Id. The purpose of these calls was business-related. Id. We held that evidence showing that the employee "may have been on his cell phone regarding company business when the accident occurred or that he might have been distracted by an incoming call from [the coworker]" was sufficient to raise a jury question as to the existence of special circumstances and the potential for vicarious liability for the employer. Id.

In arguing that Bouie's use of her cell phone was a special circumstance, Cotton stresses that University Childcare was required by law and internal policy to maintain specific teacher-to-child ratios, and the daycare implemented a strict attendance policy to ensure that those ratios were respected.³ See Ga. Comp. R. & Regs. 591-1-1-.32 (administrative code setting teacher-to-child ratios based on age). Under this attendance policy, teachers were required to notify their supervisor if they were going to be late or absent for any reason. Simply notifying a supervisor was not enough, the attendance policy required that teachers actually speak to their supervisor to report any absence or tardiness to ensure that the supervisor received the notification.

On the day of the accident, Bouie clocked out for lunch at 12:53 p.m. Bouie anticipated that the puppet show might take a little more than an hour, and asked her supervisor before leaving if she could return a little late, "like 2[:00], a little...