Hicks v. Heard
Decision Date | 29 March 2010 |
Docket Number | No. S09G1508.,S09G1508. |
Citation | 692 S.E.2d 360,286 Ga. 864 |
Parties | HICKSv.HEARD et al. |
Court | Georgia Supreme Court |
Steven K. Leibel, Dahlonega, for appellant.
Andersen, Tate & Carr, Render C. Freeman, Michael J. Blakely, Jr., Duluth, Schur, McDuffie & Morgan, Jeffrey P. Yashinsky, Atlanta, for appellees.
This case involves a vicarious liability action brought by Bonnie Hicks against Mark Heard Fuel Company (“Company”) for injuries Hicks received from a car collision with Jessica Heard (“Jessica”), an “on call” employee of the Company. In Hicks v. Heard, 297 Ga.App. 689, 678 S.E.2d 145 (2009), the Court of Appeals affirmed the trial court's grant of summary judgment in favor of the Company. In doing so, the Court of Appeals found that Hicks failed to satisfy the required burden to show that Jessica was acting in the scope of her employment with the Company at the time of the collision. We granted certiorari to determine whether the Court of Appeals gave proper weight to an employee's “on call” status during the final step of the burden shifting framework laid out in Allen Kane's Major Dodge, Inc. v. Barnes, 243 Ga. 776, 257 S.E.2d 186 (1979). For the reasons set forth below, we affirm.
(Footnote omitted.) Hicks, supra, 297 Ga.App. at 689-690, 678 S.E.2d 145.
Jessica testified unequivocally and without contradiction that she was on the purely personal mission of returning home after finishing an exam at school at the time that she had a vehicle collision with Hicks. In response to the Company's motion for summary judgment, Hicks countered Jessica's uncontradicted testimony only with Jessica's statement that she was “ on call” at the time of the incident. The mere fact that Jessica could have been called to duty at some point in the future, however, does not contradict Jessica's testimony that, at the time of the collision, she was not acting in the scope of her employment. To the contrary, it is, at best, a “mere inconclusive inference ... insufficient to get [Hicks] by [the Company's] motion for summary judgment.” Allen Kane's Major Dodge, supra, 243 Ga. at 781, 257 S.E.2d 186. Given Hicks' failure to present any satisfactory evidence to contradict Jessica's testimony regarding the nature of her mission, the burden-shifting framework set forth in Allen Kane's Major Dodge supports the trial court's grant of summary judgment in favor of the Company and the Court of Appeals' affirmance of that judgment.
As set forth in Allen Kane's Major Dodge, the general rule of respondeat superior holds:
When a servant causes an injury to another, the test to determine if the master is liable is whether or not the servant was at the time of the injury acting within the scope of his employment and on the business of the master.... Where a vehicle is involved in a collision, and it is shown that the automobile is owned by a person, and that the operator of the vehicle is in the employment of that person, a presumption arises that the employee was in the scope of his employment at the time of the collision, and the burden is then on the defendant employer to show otherwise.... The presumption that the servant is serving his master within the scope of his employment may, unless supported and corroborated by other evidence, be overcome by uncontradicted evidence.
(Citations, punctuation and emphasis omitted.) Id. at 777, 778, 257 S.E.2d 186.
Keeping these standards in mind Allen Kane's Major Dodge sets forth a burden-shifting paradigm to be used in reviewing a motion for summary judgment.
(Citations and punctuation omitted). Id. at 780-781, 257 S.E.2d 186.
The relevant facts of this case reveal that Jessica was a part-time employee of the Company, and Jessica's father was the vice-president and co-owner of the Company. At the time of the accident, Jessica was driving a car belonging to the Company.
Hicks, supra, 297 Ga.App. at 691(1), 678 S.E.2d 145. As a general matter, Jessica's “employment with the Company was described as ‘on call’ and ‘as needed.’ ” Id.
(Emphasis omitted.) Allen Kane's Major Dodge, supra, 243 Ga. at 781, 257 S.E.2d 186. Therefore, the trial...
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...by the movant, then the movant is entitled to summary judgment as a matter of law.”) (citation omitted).20 See Hicks v. Heard, 286 Ga. 864, 865, 692 S.E.2d 360 (2010) (mere fact that individual could have been called to duty at some point in the future, did not contradict individual's testi......
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...servant was at the time of the injury acting within the scope of his employment and on the business of the master." Hicks v. Heard , 286 Ga. 864, 865, 692 S.E.2d 360 (2010) (citation and punctuation omitted). See also OCGA § 51-2-2 ("Every person shall be liable for torts committed by his .......
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