ARCHER FORESTRY, LLC Et Al. v. DOLATOWSKI , 331 Ga. App. 676 ( 2015 )

FIRST DIVISION
PHIPPS, C. J.,
ELLINGTON, P. J., and MCMILLIAN, J.
NOTICE: Motions for reconsideration must be
physically received in our clerk’s office within ten
days of the date of decision to be deemed timely filed.
http://www.gaappeals.us/rules/
March 27, 2015
In the Court of Appeals of Georgia
A14A2210. ARCHER FORESTRY, LLC et al. v. DOLATOWSKI.
PHIPPS, Chief Judge.
Mary Jean Franklin Dolatowski sustained injuries when the vehicle she was
driving collided with a vehicle being driven by Steven Ray Archer. At the time of the
collision, at about 2:00 p.m. on November 20, 2008, Archer was driving home in his
employer’s vehicle. In her ensuing tort action, Dolatowski named numerous
defendants, including Archer and his employer, Archer Forestry, LLC (collectively,
the Archer Defendants). Dolatowski claimed that the Archer Defendants were liable
to her under theories of negligence.
The Archer Defendants filed a joint motion for summary judgment. Therein,
they challenged Dolatowski’s claims for punitive damages on the ground that she had
failed to adduce sufficient evidence therefor; alternatively, they sought a ruling that,
given the evidence adduced, any award of punitive damages must be statutorily
capped. Contesting liability, Archer Forestry argued that there was no evidence to
support a finding of respondeat superior; and both defendants argued that Dolatowski
was barred from any recovery due to her own (alleged) negligent driving and failure
to avoid the consequences of their (alleged) negligence. The trial court entered a
detailed order, rejecting the Archer Defendants’ arguments that the evidence failed
to justify punitive damages and failed to show respondeat superior. The court made
no ruling, however, as to their remaining two challenges.
In this appeal, the Archer Defendants maintain that they were entitled to rulings
in their favor on each ground asserted.1 For reasons that follow, we reverse the rulings
made by the trial court and remand the case for proceedings not inconsistent with this
opinion.
Summary judgment is proper “if the pleadings, depositions, answers to
interrogatories, and admissions on file, together with the affidavits, if any, show that
there is no genuine issue as to any material fact and that the moving party is entitled
1
This is a cross-appeal to Dolatowski v. Eagle Rock Distributing Co., ___ Ga.
App. ___, ___ (Case No. A14A2174, decided on March 27, 2015 ), which affirmed,
under Court of Appeals Rule 36, the grants of summary judgment motions filed by
other defendants.
2
to a judgment as a matter of law.”2 “Thus, to prevail on a motion for summary
judgment, the moving party must demonstrate that there is no genuine issue of
material fact, so that the party is entitled to judgment as a matter of law.”3 “In our de
novo review of the grant [or denial] of a motion for summary judgment, we must view
the evidence, and all reasonable inferences drawn therefrom, in the light most
favorable to the nonmovant.”4
1. The Archer Defendants contend that the trial court erred by concluding that
they were not entitled to summary judgment on Dolatowski’s claims for punitive
damages, maintaining that Dolatowski failed to adduce evidence that would authorize
such an award.
Pursuant to OCGA § 51-12-5.1 (b), “[p]unitive damages may be awarded only
in such tort actions in which it is proven by clear and convincing evidence that the
defendant’s actions showed willful misconduct, malice, fraud, wantonness,
2
OCGA § 9-11-56 (c).
3
Cowart v. Widener, 287 Ga. 622, 623 (1) (a) (697 SE2d 779) (2010) (citations
and punctuation omitted).
4
Id. at 624 (1) (a) (citation and punctuation omitted); see Norton v. Budget
Rent A Car System, 307 Ga. App. 501 (705 SE2d 305) (2010) (we review the denial
of summary judgment de novo, viewing the evidence and all reasonable inferences
therefrom in the light most favorable to the nonmoving party).
3
oppression, or that entire want of care which would raise the presumption of
conscious indifference to consequences.” Citing that statutory provision, the Supreme
Court of Georgia has espoused,
Something more than the mere commission of a tort is necessary for the
imposition of punitive damages. Negligence alone, even gross
negligence, is insufficient to support punitive damages. Punitive
damages cannot be imposed without a finding of culpable conduct based
upon either intentional and wilful acts, or acts that exhibit an entire want
of care and indifference to consequences.5
Accordingly, this court has held, “In cases involving automobile collisions, punitive
damages are authorized when the accident results from a pattern or policy of
dangerous driving, such as excessive speeding or driving while intoxicated, but not
when a driver simply violates a rule of the road.”6
Countering the Archer Defendants’ challenge, Dolatowski presented an
accident reconstructionist’s opinion that, immediately before impact, Archer was
traveling approximately 48 - 51 miles per hour in a 45 miles per hour zone.
5
MDC Blackshear, LLC v. Littell, 273 Ga. 169, 173 (4) (534 SE2d 356) (2000)
(footnote omitted).
6
Lindsey v. Clinch County Glass, 312 Ga. App. 534, 535 (718 SE2d 806)
(2011) (emphasis supplied).
4
Additionally, Dolatowski cited evidence that, when the collision occurred, Archer
was talking on his cell phone, which she maintains showed that Archer was a
distracted driver.
We agree with the Archer Defendants. Construed in Dolatowski’s favor, the
evidence fell short of providing a basis for an award of punitive damages against
either of them.7 Accordingly, the trial court’s ruling that the Archer Defendants were
not entitled to judgment as a matter of law on Dolatowski’s claims for punitive
damages is reversed.
7
See Mastec North America v. Wilson, 325 Ga. App. 863, 867-868 (755 SE2d
257) (2014) (determining that evidence that the driver was talking on his cell phone
at the time of the accident and that he thereafter pled guilty to a traffic violation “too
fast for conditions” was insufficient to support an award for punitive damages);
Lindsey, supra at 534-535 (determining that plaintiff could not recover punitive
damages against driver who admittedly caused accident due to being distracted while
looking up a number on his cell phone, where there was no evidence that driver had
a history of distraction-related accidents and there was no evidence showing a pattern
of dangerous driving or other aggravating circumstances). Cf. Langlois v. Wolford,
246 Ga. App. 209, 210 (1) (539 SE2d 565) (2000) (determining that punitive damages
were authorized, where the driver left the scene of an accident, was intoxicated, and
had a history of prior DUIs and traffic violations).
5
2. Our holding in Division 18 renders moot the Archer Defendants’ contention
that the trial court erred by failing to cap punitive damages at $250,000 under OCGA
§ 51-12-5.1 (g).
3. Archer Forestry contends that the trial court erred when it failed to grant
summary judgment on the issue of respondeat superior, maintaining that Dolatowski
failed to adduce evidence from which a jury could find that Archer was in the course
and scope of his employment at the time of the collision. We agree.
As explained in Allen Kane’s Major Dodge v. Barnes,9 “[w]hen a servant
causes an injury to another, the test to determine if the master is liable is whether or
not the servant was at the time of the injury acting within the scope of his
employment and on the business of the master.”10
Where a tort occurs as a result of a vehicle collision in which the
employee was driving his employer’s vehicle, . . . the employer’s
liability must be analyzed under the burden-shifting framework
espoused by the Supreme Court of Georgia in Allen Kane’s Major
8
Supra.
9
243 Ga. 776 (257 SE2d 186) (1979).
10
Id. at 777 (citation and punctuation omitted).
6
Dodge.[11] Under this framework, a presumption arises that the
employee was acting in the course and scope of his employment at the
time of the collision, and the burden is then on the employer to show
otherwise. An employer may overcome this presumption as a matter of
law by presenting uncontradicted evidence showing that the employee
was not acting in the course and scope of his employment. The employer
is thereafter entitled to summary judgment unless other facts are
proffered . . . from which a jury could reasonably infer that the employee
was acting within the course and scope of his employment when the
accident occurred.12
Here, it was uncontested that Archer was driving his employer’s vehicle at the
time of the collision. But Archer Forestry rebutted the presumption that thereby arose,
citing evidence that when the collision occurred at about 2:00 p. m., Archer was
driving home. “As a general rule, a servant in going to and from his work in an
automobile acts only for his own purposes and not for those of his employer, and
consequently the employer is not to be held liable for an injury occasioned while the
servant is en route to or from his work.”13 As Archer recounted during his deposition,
11
Supra.
12
Mastec North America v. Sandford, 330 Ga. App. 250, 254-255 (1) (765
SE2d 420) (2014) (citation omitted).
13
Chattanooga Publishing Co. v. Fulton, 215 Ga. 880, 883 (3) (114 SE2d 138)
(1960) (citations and punctuation omitted); see Mastec North America, supra, 330 Ga.
7his son was in the car at the time; earlier that day, he had picked up his son from
middle school, and taken him to an appointment with a pediatrician; the two of them
had left the doctor’s office at about 1:30 p.m. When the collision occurred, Archer
recounted, he was on his cell phone with his wife, discussing their son’s doctor’s
visit.
Dolatowski maintains that she nevertheless created a factual issue regarding
respondeat superior with evidence showing that, within the 25 minutes prior to the
collision, Archer used his cell phone to make calls relating to his employer’s
business. Additionally, she cites evidence that at about 2:48 p.m. on the day in
question, Archer again used his cell phone to make a call relating to his employer’s
business, which call lasted a few minutes. (But Archer deposed that he did not recall
whether he was still at the scene of the accident at the time of that call.)
Even so, the evidence cited by Dolatowski created nothing for a jury to
decide.14 Contrary to cases such as Hunter v. Modern Continental Constr. Co.15 and
App. at 254 (1) (“Generally, an employee traveling to or from work is not in the
course of his employment but rather is engaged in a personal activity.”) (citation and
punctuation omitted); Jones v. Aldrich Co., 188 Ga. App. 581, 583 (1) (373 SE2d
649) (1988).
14
See Master North America, supra, 330 Ga. App. at 255-256 (1) (reiterating
that to overcome summary judgment motion on the issue of respondeat superior, the
8
Clo White Co. v. Lattimore,16 there was no evidence, or even an assertion, that Archer
was on a business call at the time of the collision.
Given the foregoing, “[t]he evidence in the instant case demands the conclusion
that, at the time of the collision complained of, [Archer] was using [Archer
plaintiff “must show that [the defendant-employee] was acting within the scope of his
employment at the time of the accident”) (emphasis in original); Farzaneh v. Meritt
Constr. Co., 309 Ga. App. 637, 640, n. 3 (710 SE2d 839) (2011) (reasoning that the
evidence – that the employee had a company-issued cell phone with him at the time
of collision, that he kept at least one company tool in his vehicle, and that he may
have had a “vehicle allowance” – was insufficient to create respondeat superior
liability for the employer, where the employee “was not using his [company]-issued
cell phone when the collision occurred”); Braddy v. Collins Plumbing & Constr., 204
Ga. App. 862-865 (420 SE2d 806) (1992) (affirming summary judgment to employer
due to insufficient evidence to support a finding of respondeat superior liability,
despite evidence that employee was driving a company-owned truck in which a two-
way radio was installed for communicating during the work day with the job site).
Accord Short v. Miller, 166 Ga. App. 265, 266 (304 SE2d 434) (1983) (stating that
the mere fact that the employee was “on call” did not constitute evidence that he was
in the service of his employer when the collision occurred).
15
287 Ga. App. 689 (652 SE2d 583) (2007) (where evidence showed that, at
the time of the accident, the employee may have been on a work-related cell phone
call or distracted by such a call that he chose not to answer, a jury question remained
as to the employer’s liability for its employee’s actions).
16
263 Ga. App. 839, 840 (590 SE2d 381) (2003) (holding that a jury question
was created as to the employer’s potential liability for its employee’s actions, where
evidence “support[ed] the conclusion that [the employee] may have actually been on
the phone regarding matters of company business at the time of the accident”)
(emphasis in original).
9
Forestry’s] automobile for a purely personal mission of his own . . ., in no way
connected with the business of [Archer Forestry], and not within the scope of his
employment.”17 Archer Forestry was therefore entitled to summary judgment on the
issue of respondeat superior.18 The trial court’s ruling holding otherwise is reversed.
4. The Archer Defendants contend that, pursuant to OCGA § 51-11-7 and cases
such as Weston v. Dunn Transportation & Stringer,19 they were entitled to summary
judgment on the ground that Dolatowski’s own (alleged) negligence barred any
recovery against them. While this ground was argued to the trial court, the court made
no ruling thereon in its detailed order.20 And “we decline to address the[ ] ground[ ]
on appeal because [it was] not ruled upon by the trial court.”21
17
Chattanooga Publishing Co., supra.
18
See Cowart, supra; Master North America, supra, 330 Ga. App. at 254-257
(1); Farzaneh, supra; Braddy, supra.
19
304 Ga. App. 84 (695 SE2d 279) (2010).
20
The Archer Defendants asked for a ruling in their favor in their motion for
reconsideration, but the court did not rule on that motion before the Archer
Defendants perfected this appeal. See generally Becker v. Fairman, 167 Ga. App.
708, 709 (1) (307 SE2d 520) (1983) (“[A] motion for reconsideration does not extend
the time for filing a notice of appeal.”).
21
Medical Center of Central Ga. v. Macon, 326 Ga. App. 603, 607 (2) (757
SE2d 707) (2014), citing inter alia, City of Gainesville v. Dodd, 275 Ga. 834, 838-839
(573 SE2d 369) (2002).
10
This case is hereby remanded to the trial court so that it may address the
remaining ground advanced by the Archer Defendants.22
Judgment reversed and case remanded. Ellington, P. J., and McMillian, J.,
concur.
22
See City of Gainesville v. Dodd, supra; Medical Center of Central Ga., supra.11