Georgia Supreme Court Agrees That “On Call” Does Not Equal “On The Job”

In Hicks v. Heard,, Jessica Heard was the daughter of the vice president and co-owner of the Mark Heard Fuel Company (“Company”) and a part-time employee of the Company engaged to perform clerical work on an “as needed” basis. For her personal and work-related use, Jessica drove a sport utility vehicle which was owned by the Company. Jessica was involved in an automobile accident while driving home from school and was sued, along with the Company.

Jessica was unquestionably on the personal mission of returning home after finishing an exam at school at the time of the accident. She testified, however, that she was “on call” because she was subject to being called to work at any time.

The Supreme Court applied the burden of proof framework which has long been in place for determining whether an employee of a company who has been issued a company vehicle is “on the job” at the time of an accident. The fact that Jessica was employed by the Company and was driving a vehicle owned by the Company at the time of the accident raised a presumption that Jessica was in the scope of her employment at the time of the collision. The Company then rebutted this presumption by providing uncontradicted testimony that Jessica was not acting within the scope of her employment at the time of the accident. The burden of proof then shifted back to the plaintiff who countered with evidence that Jessica was “on call” at the time of the accident, which was merely circumstantial evidence that Jessica was acting in the scope of her employment. The Supreme Court found that this circumstantial evidence was insufficient to support a verdict that Jessica was acting in the course and scope of her employment.

Three Justices strongly dissented from this opinion and believed that the fact that Jessica was “on call” should have created a question for a jury.

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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.