Thompson v. Club Group, Ltd.

553 S.E.2d 842, 251 Ga. App. 356, 2001 Fulton County D. Rep. 2598, 2001 Ga. App. LEXIS 949
CourtCourt of Appeals of Georgia
DecidedAugust 9, 2001
DocketA01A1173
StatusPublished
Cited by2 cases

This text of 553 S.E.2d 842 (Thompson v. Club Group, Ltd.) 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
Thompson v. Club Group, Ltd., 553 S.E.2d 842, 251 Ga. App. 356, 2001 Fulton County D. Rep. 2598, 2001 Ga. App. LEXIS 949 (Ga. Ct. App. 2001).

Opinion

Miller, Judge.

There are two issues presented on appeal. The first is the question of whether at the time of a collision the negligent driver was acting as an employee or independent contractor for any or all of the three corporate defendants. The second issue is whether the driver’s actions as an employee were within the course and scope of his employment. The evidence showed that although it was his day off from his regular employer, at the time of the collision the driver was acting at his employer’s behest in picking up and delivering certain documents to the employer and that the employer controlled his actions in this regard. The evidence was undisputed that the other two defendants did not employ the driver nor control his actions during such document deliveries and thus at most had only an independent contractor relationship with him at the time of the collision. Thus, we reverse that portion of the judgment granting summary judgment in favor of the regular corporate employer and affirm the remainder of the judgment granting summary judgment to the other two defendant corporations.

In 1989, Club Group, Ltd. hired James Gray as a bellman for a resort it operated on Hilton Head Island, South Carolina. Gray’s responsibilities included greeting and assisting guests and running various errands, including the distribution of office mail between the resort and Club Group’s general administrative office. Beyond operating a resort, Club Group also provided administrative functions such as payroll and accounting for two affiliated entities — CGL of Savannah, Inc. and Low Country Golf Investors, Inc., each operating a golf course in Savannah and Hardeeville, respectively. CGL and Low Country would regularly deliver documents to Club Group so Club Group could perform the accounting and payroll services, which deliveries the manager of the Savannah golf course performed for a period of time.

When the manager moved, the controller for Club Group and its [357]*357president approached Gray about performing the delivery services on his day off, which was Friday of each week. Gray traveled from his residence in Savannah to Hilton Head each week to pick up his paycheck on Friday anyway, and so they agreed to pay him a flat fee of $35 to pick up documents from CGL each Friday (and from Low Country when its regular courier was unavailable), deliver them to Club Group, receive payroll checks for one of the golf courses, and then return to that golf course by 2:00 p.m. to deliver the payroll checks.

Gray performed and was paid for these delivery services for several months until the date of the auto accident. On Friday, May 10, 1996, Gray was speeding and possibly racing along the highway adjacent to CGL’s Savannah golf course (where there were documents waiting to be picked up), when he lost control of his car, crossed the median, and collided head-on with a vehicle in which Betty Thompson was a passenger. Gray died in the accident, and Thompson was severely burned. Thompson brought the present lawsuit to recover damages from Gray’s estate and from Club Group, CGL, and Low Country. Reasoning that no evidence showed that Gray was acting as an employee of any of the three corporate defendants at the time of the collision, the trial court granted them summary judgment, which Thompson appeals.

1. Thompson first argues that the court erred in considering the affidavit of Mark King,1 the president of all three corporate defendants. King testified at length about the relationship between the corporations and Gray. Thompson contends that King could not testify about the oral agreement establishing the terms of the weekly delivery arrangement, as King’s testimony about Gray’s assent to this agreement constitutes hearsay.

We note first that King’s affidavit primarily references his personal knowledge and observations of the terms and workings of the arrangement with Gray and thus is not hearsay. We also note that Thompson makes no objection to King’s deposition, in which much of the same testimony is reiterated. In any case, to the extent King implies or states that Gray agreed to the arrangement, OCGA § 24-3-8 provides that “[declarations and entries made by a person since deceased against his interest and not made with a view to pending litigation shall be admissible in evidence in any case.” Alleged oral agreements by the deceased are considered against the deceased’s interest and are therefore not objectionable as hearsay but are admissible.2 Thompson’s enumeration must fail.

[358]*3582. Thompson urges that the trial court erred in holding as a matter of law that Gray performed no services for Club Group on the date of the accident. As there was evidence from which a jury could infer that Gray was performing services for Club Group at the time of the collision, we agree with Thompson and reverse this portion of the summary judgment order.

“When an employee causes an injury to another, the test to determine if the employer is liable is whether the employee was acting within the scope of the employee’s employment and on the business of the employer at the time of the injury.”3 Thus, if the employer authorized the employee to accomplish the purpose in pursuance of which the tort was committed, the employer is liable.4

Summary judgment is proper only when there is no genuine issue of material fact and the movant is entitled to judgment as a matter of law.5 On appeal we review the evidence de novo in the light most favorable to the nonmovant.6

It is undisputed that at the time of the collision Gray was a full-time employee of Club Group. Since Friday was generally considered his day off from this employment, the question is whether Gray nevertheless was acting within the scope of his employment and on the business of Club Group at the time of the collision. Construed in favor of Thompson, several items of evidence would allow a jury to infer such.

First, before Gray took over the delivery responsibilities, they had simply been a part of the job responsibilities of the manager of the Savannah golf course. Since the $35 paid to Gray was based at least in part on the number of miles involved and on the wear and tear on his vehicle, and since one could infer that the $35 barely covered these expenses (the round trip exceeded 119 miles7), a jury could also infer that this courier duty became a part of Gray’s responsibilities as an employee of Club Group, with Club Group simply insuring that Gray was reimbursed his expenses from the trip. In light of Gray’s ongoing responsibility to deliver documents between the resort and Club Group’s general administrative offices, this additional delivery responsibility could be seen as a natural outgrowth of that. Indeed, King admitted that Gray took on the new delivery responsibility at this low price as “a favor” to Club Group. And simi[359]*359lar to an employee, Gray was to be paid the $35 each week even if no deliveries were made. After Gray’s death, the managers at the golf courses took over the duty of delivering the documents as a part of their job responsibilities.

Second, the delivery of these documents was in furtherance of Club Group’s business, for it could not perform its administrative duties for CGL and Low Country without these documents.

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553 S.E.2d 842, 251 Ga. App. 356, 2001 Fulton County D. Rep. 2598, 2001 Ga. App. LEXIS 949, Counsel Stack Legal Research, https://law.counselstack.com/opinion/thompson-v-club-group-ltd-gactapp-2001.