Can an employer be held liable for an employee's "I'm running late" call?

In Cotton v. Prodigies Child Care Management, LLC, --S.E.2d—; 2022 WL 573355 (Ga. App. February 25, 2022), the Georgia Court of Appeals reversed the trial court’s grant of summary judgment to a driver’s employer. Plaintiff Andrea Cotton filed suit against Bianca Bouie and Bouie’s employer, Prodigies Child Care Management, following an automobile accident.

Bouie was driving her own automobile, when she struck Cotton’s automobile. According to Bouie, she had left Prodigies during her lunch break to attend a puppet show, where she was a volunteer. Bouie was returning to Prodigies when the accident occurred. However, Bouie wanted to call Prodigies to let her manager know that she was running late. According to Bouie, she looked down to scroll through her contacts. When Bouie looked back up, she realized she was in the median. Bouie turned her vehicle back toward her lane but struck Cotton’s vehicle before she could return to her lane.

Prodigies filed a motion for summary judgment contending Bouie was not acting within the scope of her employment. Prodigies contended 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.” The trial court agreed, granting summary judgment to Prodigies.

The Georgia Court of Appeals noted it had previously found 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.” In finding a question for a jury in the instant matter, the court of appeals indicated Prodigies by law and by policy was required to maintain a specific teacher-to-child ratio and-- under a strict attendance policy implemented by Prodigies--employees were required to notify their supervisor if they were late or absent for any reason. Though Bouie did not indicate that the purpose of her call was due to the policy, the Georgia Court of Appeals determined that “Bouie’s subjective motivation in making the call is not the central question.” Rather it was whether Bouie was “‘engaged in the master’s business’ or ‘at that time serving the master’.”

The Georgia Court of Appeals indicated that because Prodigies had stressed the importance of advanced reporting of tardiness and Bouie was in the process of complying with the policy, it was not a “plain and indisputable case of an employee acting entirely outside the scope of their employment.” As such, the “course and scope” question would be left to the jury.