Employee On The Way To Work Is Not In The Scope Of Employment

David Redic was driving to a construction site in his own truck when he struck and severally injured Farzaneh, a pedestrian crossing the street. Farzaneh sued Redic’s employer, Merit Construction Company (“Merit”), seeking to recover damages for his injuries. The trial court granted Merit’s motion for summary judgment concluding that the evidence showed that Redic was not acting in the course and scope of his employment when he injured Farzaneh and, therefore, Merit could not be held liable under the doctrine of respondeat superior. The Court of Appeals agreed.

Merit performs build-outs of commercial and retail office space and has numerous “field employees,” i.e., laborers who work at assigned job sites. Merit does not have a central office where its field employees report at the beginning of the work day. Redic was assigned to a specific job site in Atlanta at the time of the accident and was due at the site at 6:00 a.m. Shortly before that time, the accident occurred.

Redic had previously purchased the truck from Merit at a discount but it had been paid off and was titled in Redic’s name. Redic, not Merit, paid for insurance on the truck. Merit did not perform any maintenance on the truck after it was sold. In his truck at the time of the accident, Redic had a Merit issued “direct connect” cellular telephone and a Merit issued power screw gun. He did not make or receive any calls on the phone prior to or at time of the collision. Redic was not bringing any equipment or supplies to the job site for other Merit employees.

Georgia courts have established that an employee on the way to work is not in the course of his employment but rather is engaged in a personal activity. If, however, the employer owns the vehicle driven by the employee, a presumption arises that the employee was acting in the course and scope of his employment and the burden shifts to the employer to rebut it through uncontradicted evidence showing that the employee was not acting on behalf of the employer. That presumption did not arise in this case but based on these facts even if Redic had been driving a truck owned by Merit, summary judgment would likely have been granted.

Farzaneh argued that the “direct connect” phone and tool in the truck and the fact that Redic might have received a vehicle allowance as part of his compensation created “special circumstances.” This argument was rejected. The Georgia courts have previously found that the fact that an employee is “on call” and driving a truck “loaded with parts and materials” does not create liability for the employer; the fact that an employee receives a vehicle stipend does not create liability; the fact that an employee is driving a truck with a two-way radio installed for communicating to an employer and containing parts and tools for use of other employees does not create liability; and the fact that an employee has a beeper does not create liability.

Farzaneh also argued that when Redic was hired by Merit, Redic completed an insurance form indicating that he was an “authorized driver.” The Court was not persuaded that this created any liability on behalf of Merit for the accident.
Finally, Farzaneh relied on workers’ compensation cases in arguing that Merit should be held vicariously liability for the injuries caused by Redic. Several years ago the Court of Appeals rejected this argument in a case of mine, Gassaway v. Precon, and found that the laws governing workers compensation and negligence are different and an employee can be said to be within the scope of employment for workers’ compensation purposes and not within the scope of employment for negligence purposes.

This opinion is another in a long line of cases indicating the Court of Appeals’ reluctance to establish liability for an employee driving to and from work, especially when the employee is in his personal vehicle. In most such cases, the employer should be able to obtain summary judgment.

Please let me know if you would like a copy of the opinion.

About the Author

Michael Rust graduated from Emory University in 1980 and Emory University School of Law in 1983 where he was Notes and Comments editor of the Emory Law Journal (Law Review). Since that time, he has maintained an active trial practice in the state of Georgia both in State and Federal Courts. Mr. Rust teaches litigation as part of Emory University School of Law’s annual Trial Practice Program. He has received AV rating from Martindale Hubble, the highest rating afforded to lawyers by their peers.