RING RING, WHAT NOW?
The Georgia Supreme Court Eliminates the
Special Circumstances Exception to the Commute Rule
By: Leah Parker
People have been commuting to and from work by car for about as long as cars have existed – and they have been getting into accidents resulting in injuries for just as long. In fact, the first automotive liability insurance policy in the United States is believed to have been sold in Dayton, Ohio, in 1897, according to the Ohio Historical Society. Thereafter, such policies became much more commonplace as did personal automobile ownership, and in 1927, Massachusetts became the first state to make automotive liability insurance mandatory. Based on this history, it is no wonder Georgia law developed a rule in the mid-1930s to protect employers from vicarious liability when their employees were involved in car accidents commuting to and from work.
This rule, generally known as the “coming and going rule” or the “commute rule,” holds “that an employee acts only for her own purposes – and not for those of her employer – while she is going to or from work, so respondeat superior generally does not apply when an employee commits a tort during her work commute.” Prodigies Child Care Mgmt., LLC v. Cotton, 317 Ga. 371, 378, 893 S.E.2d 640 (2023).
As background, respondeat superior is Latin for “let the superior make answer” and is commonly referred to as the “master-servant rule.” It is the legal doctrine that creates vicarious liability, wherein an employer is liable for the tortious acts of its employee when the employee was acting within the scope of their employment and in furtherance of the employer’s business (often, this is referred to as being “in the course and scope of employment”).
When the commute rule arose, it was rather clear-cut. An employee commuting to or from work was considered on an entirely personal endeavor, so the employer generally could not be vicariously liable if the employee got into a car accident and caused injury to someone. However, as mobile technology began providing drivers more options for multi-tasking during their commutes, this distinction blurred. In response to these technological advances, around the mid-1990s, the Georgia Court of Appeals began applying what came to be known as the “special circumstances exception” to the commute rule. This exception arose in cases where an employee caused an accident while commuting and while simultaneously performing a work-related task. Frequently, this task involved making or answering a work-related phone call.
Specifically, the special circumstances exception provided that although an employee’s commute is an entirely personal affair, a “special circumstance” can arise during the commute that places the employee’s actions back within the scope of the employer’s business. Factors were developed for analyzing whether this exception applied, with the Georgia Court of Appeals weighing whether the employee was commuting while also: “(1) carrying work materials in the employee’s car; (2) using a phone for work-related calls; (3) receiving a stipend from an employer for a vehicle; or (4) being ‘on call.’” DMAC81, LLC v. Nguyen, 358 Ga. App. 170, 173, 853 S.E.2d 400 (2021)(disapproved by Prodigies, 317 Ga. 371 (2023)). In conducting this analysis, the court of appeals focused on whether the concurrent activity was “business-related.”
For over 30 years, the special circumstances exception has been the framework used for evaluating whether an employee’s work-related phone call during their commute can result in the imposition of vicarious liability against the employer in the event of a concurrent (or near in time) accident. Indeed, every vicarious liability opinion in Georgia history on this work-related call issue has, to the best of this author's knowledge, been decided through application of the special circumstances exception.
However, on October 11, 2023, in Prodigies Child Care, supra, the Georgia Supreme Court disapproved the entire line of cases in this 30-year history. The Georgia Supreme Court explained there is no separate, special circumstances exception to the doctrine of respondeat superior or the commute rule and called the multi-factor test applied by the court of appeals “an unwarranted restriction on the totality-of-the-circumstances evaluation inherent to an analysis of respondeat superior.” Further, the Supreme Court explained the court of appeals’ focus on whether phone calls were “business-related” in evaluating whether such calls create a question of fact about an employer’s vicarious liability was legally incorrect.
Moving forward, the Prodigies Decision explained,
when a plaintiff contends that the employee who is traveling to or from work does something else that is allegedly within the scope of the employee’s employment, . . . [t]he proper test is the traditional respondeat-superior test: whether the employee was acting in furtherance of her employer’s business and within the scope of her employment at the time she committed the tortious act.
Id., 317 Ga. at 383.
It is not enough to determine that such act was related to the business; there must be an analysis of whether the act was actually in furtherance of the employer’s business and in the scope of the employee’s employment. While this sounds like a higher standard that will be favorable for businesses, it should be noted there have only been three court of appeals cases in history finding evidence that a special circumstance existed such that vicarious liability could be at issue against an employer. In effect, the detailed case law and factors of the special circumstances exception were rather effective at providing defendant/employers with a sufficiently concrete framework on which to move for summary judgment on respondeat superior and vicarious liability allegations.
Now, however, defendant/employers are essentially back at square one in attempting to evaluate whether an employee’s actions during their commute – such as a quick phone call advising they are running late – may be sufficient to place the employee in the scope of employment. As expressed by Presiding Justice Peterson in his Prodigies concurrence, “in the absence of that kind of structure [developed by the court of appeals], it seems to me that the question of when mid-commute work-related activity rises to the level of scope and furtherance will almost always be for a jury to decide.” Id. at 387. At this point, employers will have to wait and see.
NOTE: The Georgia Supreme Court in Prodigies vacated the underlying Georgia Court of Appeals decision and remanded the case back to the court of appeals to decide using the proper legal analysis. When published, that court of appeals decision will likely be the best resource for determining how Georgia courts will handle mid-commute calls and activities moving forward.
Attorney Contact Info
Leah Parker
leah.parker@swiftcurrie.com
470.639.4858