Court of Appeals Considers the Special Circumstance Related to Imputed Employer Liability

The Court of Appeals in DMAC81, LLC v. Nguyen, Docket No. A20A1991, recently reviewed the special circumstance and special mission exceptions to the general rule that employees commuting to work are not acting in the course and scope of their employment. During inclement weather in January 2018, Gary Cummings lost control of his car and struck Tuan Nguyen’s vehicle, killing Nguyen. Nguyen’s wife sued Cummings and his employer, DMAC81, LLC. DMAC81 moved for summary judgment on the issue of whether Cummings was in the course and scope of his employment at the time of the accident. The trial court concluded that there was a jury issue as to whether Cummings was on a “special mission” for DMAC81 at the time of the accident.

Cummings was employed as a grill cook at McAllister’s Deli, a franchise location owned by DMAC81. In addition to his grilling duties, he assisted the catering manager with deliveries. If he was scheduled to make a delivery on a certain day, he would go in early to prep the grill before making the delivery in his personal vehicle. Sometimes he was called in on his day off to help with catering. He was paid for the deliveries and had to have his general manager’s permission to come in early when a delivery was scheduled.

On the date of the accident, Cummings was called at around 8:00 a.m. to make a catering delivery later that day. The area was under a state of emergency due to the winter storm. While the weather was not discussed, Cummings did not feel like he had the option to decline the delivery so he agreed to do it.

While on his way to work early to prep the grill, the accident occurred. Cummings had marijuana in his system at the time and was taking pain medication. DMAC81 knew that Cummings used marijuana but did not conduct background checks or review driving histories for Cummings (or any employee who made deliveries).

"The law is clear that in the absence of special circumstances a servant in going to and from work in an automobile acts only for his own purposes and not for those of his employer." (Citation omitted.) Hargett's Telephone Contractors, Inc. v. McKeehan, 228 Ga. App. 168, 170 (1997). As such, the appellate court looked to see if there were special circumstances to impute liability to DMAC81. Because Cummings was making his usual commute, had not clocked in, was not using a cell phone or conducting business, and was not being paid for his commute time, the court did not find any special circumstance. This is true even though Nguyen argued that Cummings was “on call” at the time of the accident, citing case law that allowed imputed liability where an on-call employee was responding to a call. In doing so, the court noted that Cummings was already scheduled to work that day and was not making a special trip to the deli for the purpose of a delivery.

Nguyen also argued that Cummings’s commute that day was a “special mission.” Under this exception, where an employee, either before or after normal working hours, is on his way from his house to perform some special errand for the employer and an injury arises en route to the errand, the injury should be considered as arising out of the course and scope of the employment.

The Court held that the exception did not apply because Cummings was headed into the deli to perform his normal duties, i.e. prepping the grill, before undertaking the special errand of catering delivery. “To expand the special mission exception to these facts would result in the exception swallowing the rule.” The opinion can be found at https://efast.gaappeals.us/download?filingId=c5a0f317-f49b-49ed-84b6-5d17d56f0d9a