Coe v. Carroll & Carroll, Inc.

709 S.E.2d 324, 308 Ga. App. 777, 2011 Fulton County D. Rep. 1181, 2011 Ga. App. LEXIS 280
CourtCourt of Appeals of Georgia
DecidedMarch 25, 2011
DocketA10A1717, A10A2338
StatusPublished
Cited by9 cases

This text of 709 S.E.2d 324 (Coe v. Carroll & Carroll, Inc.) is published on Counsel Stack Legal Research, covering Court of Appeals of Georgia primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Coe v. Carroll & Carroll, Inc., 709 S.E.2d 324, 308 Ga. App. 777, 2011 Fulton County D. Rep. 1181, 2011 Ga. App. LEXIS 280 (Ga. Ct. App. 2011).

Opinions

Ellington, Chief Judge.

This personal injury action, pending in the State Court of Chatham County, arose from a vehicular accident in which Christopher Coe (“Coe”) crashed his car into a tractor-trailer that Melvin Williams had parked on the side of the road. Following Coe’s death, the action is now being prosecuted by his widow, Kathleen Coe, against Williams, Griffin Contracting, Inc. (“Griffin”), and Carroll & Carroll, Inc. (“Carroll”). Kathleen Coe appeals a number of interlocutory orders that are adverse to her, and we have consolidated these cases for decision.

The primary issue is whether either Griffin (which employed Williams as a truck driver) or Carroll (a contractor that hired the tractor-trailer and driver from Griffin) can be held derivatively liable for Williams’ alleged negligence in parking the tractor-trailer with its back end protruding into the roadway. The trial court concluded that neither Griffin nor Carroll can be held liable for Williams’ alleged negligence and, therefore, granted their motions for summary judgment, leaving the case pending against Williams only. In ruling on Carroll’s motion for summary judgment, the trial court concluded that, as a matter of law, Williams was not Carroll’s borrowed servant at the time of his alleged negligence and that, therefore, Carroll cannot be held liable for Williams’ conduct. In ruling on Griffin’s motion for summary judgment, the trial court concluded that, by detouring 2.5 miles away from his route in order to pick up lunch, Williams was, as a matter of law, on a purely personal mission at the time of his alleged negligence and was not acting in the scope of his employment with Griffin or furthering Griffin’s business and that, therefore, Griffin cannot be held liable under the doctrine of respon-deat superior. And, based on its conclusion that Williams’ alleged negligence was not committed within the scope of his employment with Griffin, the trial court granted Griffin’s motion for summary judgment on Kathleen Coe’s remaining claim against Griffin, for negligent hiring and retention.

In addition, the trial court overruled in part Kathleen Coe’s objections to certain medical testimony and denied her motion in [778]*778limine to exclude evidence of Coe’s past drug use and the methadone drug therapy he was receiving at the time of the accident.

In Case No. A10A1717, Kathleen Coe appeals from the grant of summary judgment in favor of Carroll. In Case No. A10A2338, she appeals from the grant of summary judgment in favor of Griffin and from the evidentiary rulings. For the reasons explained below, we affirm in part and reverse in part.

Case No. A10A1717

1. In order to prevail on a motion for summary judgment under OCGA § 9-11-56,

the moving party must show that there exists no genuine issue of material fact, and that the undisputed facts, viewed in the light most favorable to the nonmoving party, demand judgment as a matter of law. Moreover, on appeal from the denial or grant of summary judgment the appellate court is to conduct a de novo review of the evidence to determine whether there exists a genuine issue of material fact, and whether the undisputed facts, viewed in the light most favorable to the nonmoving party, warrant judgment as a matter of law.

(Citations omitted.) Benton v. Benton, 280 Ga. 468, 470 (629 SE2d 204) (2006).

Viewed in the light most favorable to the appellant, the record shows the following. In June 2006, Carroll was building a section of Highway 17 in Chatham County under contract with the Georgia Department of Transportation. Carroll in turn hired Griffin to supply, at an hourly rate, a tractor, with a trash trailer, and a driver to haul away debris that was generated by the project. There was no written contract between Carroll and Griffin. Griffin’s owner assigned Williams to the job. Although Carroll lacked the authority to terminate Williams from his employment with Griffin, it had the authority to tell Griffin to send a different driver in place of Williams.

No one from Griffin directly supervised Williams while he was hauling debris for Carroll. Instead, Carroll’s foreman dictated what time Griffin’s driver and tractor-trailer should arrive at the job site and directed Williams in terms of when to take a particular load to a landfill, where to take each load (to which landfill), whether and when to take a break, and when to cease work for the day.

On June 30, 2006, Williams hauled a load of debris from the Carroll job site to the landfill, dumped the load, and then stopped at [779]*779a church to pick up a boxed lunch he had ordered; he planned to eat lunch in his truck while he went back to the job site. According to Williams, he was “on the clock” at the time he parked Griffin’s tractor-trailer at the church. Williams deposed that Griffin’s tractor-trailer drivers, including himself, were not given time to take a break to stop and eat lunch. Instead, they would “steady roll,” by getting take out and eating on the road or back at the job site. Griffin later paid Williams for all the hours he worked that day, without deducting any break time, and Griffin billed, and received payment from, Carroll for all of that time.

At 12:50 p.m., within seconds after Williams parked the tractor-trailer on the side of the road in front of the church, Coe crashed into the rear of the tractor-trailer, which protruded two feet, seven inches into the roadway, and he sustained serious injuries.

In pursuing a claim against Carroll for Williams’ alleged negligence, the appellant contends that, at the time of his alleged negligence, Williams acted as an agent of both Carroll and his employer, Griffin.

Because Carroll hired the use of Griffin’s tractor-trailer and driver, the determination of whether Carroll was vicariously liable for Williams’ negligence is controlled in part by Georgia’s laws governing bailments.1 OCGA § 44-12-62 (b) provides that “[i]f [a] bailor sends his own agents with the thing bailed, the hirer shall not be liable for the acts of such agents but shall only be liable either to the bailor or to third persons for the consequences of his own directions and for gross neglect.” It is undisputed in this case that the bailor (Griffin) sent its own agent (Williams) with the thing bailed (the tractor with attached trash trailer). Thus, under OCGA § 44-12-62 (b), Carroll, as the hirer, is liable only for “the consequences of [its] own directions or for [its] gross negl[igence].” As the Supreme Court of Georgia has explained, “[t]he [statute’s] reference [780]*780to the hirer’s ‘own directions’ . . . refers to the borrowed servant doctrine.” Tim’s Crane & Rigging v. Gibson, 278 Ga. 796, 797 (604 SE2d 763) (2004). In the case of a bailment, such as in the case at bar, an employee of the bailor is a borrowed servant of the hirer (1) if the hirer “had complete control and direction of the [bailor’s employee] for the occasion,” whereas the bailor had no such control, and (2) if the hirer “had the exclusive right to discharge the [bailor’s employee].” (Citation and punctuation omitted.) Id.

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Coe v. Carroll & Carroll, Inc.
709 S.E.2d 324 (Court of Appeals of Georgia, 2011)

Cite This Page — Counsel Stack

Bluebook (online)
709 S.E.2d 324, 308 Ga. App. 777, 2011 Fulton County D. Rep. 1181, 2011 Ga. App. LEXIS 280, Counsel Stack Legal Research, https://law.counselstack.com/opinion/coe-v-carroll-carroll-inc-gactapp-2011.