Staying on top of the Georgia Appellate decisions that affect our practice is always a good idea and here is a summary of the most recent decisions.
A23A0430. PHILLIS GRAHAM, as surviving spouse of O’BRIAN
GRAHAM, Deceased v. HOSPICE SAVANNAH, INC.
This is a motorcycle fatality case stemming from the negligent driving of a lady who was on her way to work at a Hospice. It is pretty well settled in Georgia law that when an employee is commuting to and from work, they are not in the course and scope of their employment and therefore the employer cannot be vicariously liable for harm committed. Farzaneh v. Merit Constr. Co., 309 Ga. App. 637, 639 (710 SE2d 839) (2011); Archer Forestry, LLC v. Dolatowski, 331 Ga. App. 676, 679 (3) (771 SE2d 378) (2015)
In this case, the Plaintiff’s attorneys got creative and because the employee was called on Friday to work the Monday Memorial Day shift, they argued that this request put the drive to work on Monday into the “special mission” exception. No, this isn’t a spy operation, it just means that the boss asked the employee to divert and drive somewhere beyond the commute.
“The special-mission exception applies when the employee, before or after customary working hours, is on his way from his home to perform some special service or errand or the discharge of some duty incidental to the nature of his employment in the interest of, or under direction of, his employer, and an injury arises en route from the home to the place where the work is performed, such injury is considered as arising out of and in the course of the employment.”
DMAC81, LLC v. Nguyen, 358 Ga. App. 170, 174 (2) (853 SE2d 400) (2021)
Our Firm argued a similar approach, that when the employee drove to the employers bookkeeping office to put her paycheck on direct deposit, that it was a special mission for the employer. In our case, it became clear the trial court was going to rule that since direct deposit did not really benefit the employer, only the employee, that it was not a mission for her boss and they were going to throw out our claim. We settled with the employer for a fair sum. Sometimes recognizing when you have won enough is the smart play for the client.
Nonetheless, in the 2023 case, the Court of Appeals agreed with the trial judge such that simply asking someone to work on a non scheduled day does not make the commute a “special mission” and they threw out the claim against the employer.
Here is an excerpt from our Brief in our case responding to the Defenses’ Motion for Summary Judgment.
“The question of whether a servant by whose act another is injured was acting within the scope of his employment is ordinarily one to be determined by a jury; but if the facts are so clear that only one conclusion can reasonably be reached, the court may decide it as a matter of law and enter summary judgment.” The general rule is that an employer is not liable for a collision involving an employee when the employee is on her way to or from work; however, the Special Mission Doctrine creates an exception to this general rule.
Under the Special Mission exception, an injury caused by an employee before or after customary working hours is considered “arising out of and in the course of employment” when the employee is on her “way to perform some special service or errand or the discharge of some duty incidental to the nature of her employment in the interest of, or under the direction of, her employer.” Ownership of the automobile and whether the employee is paid for the special errand are irrelevant, so long as it appears the employee was operating under the course of her employment. Broken down, the Special Mission exception applies when: 1) the commute is before or after customary working hours; 2) the employee is in route to or from performing some special or uncustomary errand or discharging of some duty incidental to the nature of her employment; and 3) the mission is under the direction of OR in the interest of her employer.
- Defendant Washburn’s commute was after customary working hours:
It is undisputed that Defendant Washburn’s customary hours were Monday to Friday from 6:30 am to 2:45 pm. Likewise, there is no dispute that this wreck occurred on her way to Defendant Nadia, Inc’s corporate office after she clocked out at the Kia plant.
- Defendant Washburn was commuting to perform an uncustomary errand or perform an uncustomary task incidental to her employment:
The following is undisputed: Defendant Washburn’s assigned job site was the Kia plant, where she commuted to and from her house on a daily basis. At the time of the wreck, she was traveling from her assigned job site to Defendant Nadia, Inc.’s office, not to her house; This was an uncustomary commute, as it was the first time she drove from the Kia plant to the LaGrange office.
Farzaneh v. Merit Constr. Co. a case relied on by Defendants, involves a fact pattern entirely different from the undisputed facts here. In Farzaneh, the Court of Appeals held the special mission exception did not apply because the employee was commuting to an assigned job site as he did every day of the work week. The errand or mission could not be characterized as special or uncustomary. Here, Defendant Washburn was not driving between her house and the Kia plant, as she did every day of the work week. She was driving from the Kia plant to Defendant Nadia, Inc.’s LaGrange office, which she had never done beforehand.
Finally, even aside from the uncustomary commute, she clearly was in route to perform an errand incidental to her employment. Defendant Nadia, Inc. admitted that it was responsible for payroll for assigned employees. Payroll is a core principle of the employment relationship. As Defendant Nadia, Inc. testified, the payroll structure is very important to the function of the company because it keeps the employees working hard which in turn keeps Defendant Nadia, Inc.’s clients happy. Payroll is a key component to employment and is essential to Defendant Nadia, Inc. maintaining its business and generating a profit.
- Ms. Washburn’s mission was at the direction of or in the interest of her employer:
Under this element, Plaintiffs only need to show evidence Defendant Washburn acted at the direction of her employer OR acted in the interest of her employer. Defendant Washburn testified Defendant Nadia, Inc. directed her to come to the office to bring a to fill out the paperwork necessary for setting up direct deposit and drop off a voided check. Her testimony alone creates a genuine issue of a material fact. This is true even if Defendant Nadia, Inc. had admissible evidence that was contrary to Defendant Washburn’s testimony. But, it does not. Rather, Defendant Nadia, Inc. concedes that she may have been directed to come to the office, but then speculates that it is unlikely because she could have faxed it. Notwithstanding whether she even owned a fax machine or the issue of sending bank account information by fax, Defendant Nadia, Inc.’s speculation is certainly not grounds for summary judgment, particularly in light of Defendant Washburn’s testimony.
Though the evidence that Defendant Nadia, Inc. directed Defendant Washburn to come to the office is alone sufficient to defeat summary judgment, it is worth noting her special mission was likewise in the interest of her employer. Defendant Nadia, Inc. admitted it prefers employees use direct deposit for security reasons. It also testified that direct deposit is less burdensome than the payroll card. For example, when employees lose a payroll card, Defendant Nadia, Inc. is forced to meet with the employee in the office, issue a new card, and then input all new information on its system, “which takes time to do.” As Defendant Nadia, Inc. testified, the process is as time-consuming as walking a mile.
Additionally, Defendant Nadia, Inc. testified that it incurred more costs associated with the payroll card than with direct deposit. The company is assessed the exact same fee by its bank for transferring funds by direct deposit and to the payroll card, but this is the only cost associated with direct deposit. With the payroll card, however, the company incurs this transfer fee, the cost of the actual payroll card (between $2.00 and $2.50 per card), shipping costs, and the wages paid to an hourly employee to go through the lengthy process of inputting the new information for each new and replacement card. Defendant Nadia, Inc. admitted it loses nearly ten dollars ($10.00) for each new and replacement card after the costs of the actual card, shipping, and employee time/wages are added together.
Defendant Nadia, Inc. relies on Gassaway v. Precon, Corp., in support of its argument that the Special Mission Doctrine does not apply. However, that case likewise involves a drastically different fact pattern than the present case. In Gassaway, the Court of Appeals held the special mission exception did not apply because the employee was commuting back from a lunch break, which was not uncustomary, and the employee unilaterally decided to undertake a personal errand that neither was at the direction of his employer nor in the interest of his employer. Unlike that case, Defendant Washburn’s commute was uncustomary, she was doing so at the direction of Defendant Nadia, Inc., and it was in the interest of Defendant Nadia, Inc.