Beck v. Paideia School, Inc. , 191 Ga. App. 183 ( 1989 )

Pope, Judge.

Appellants were injured when their cars collided on the street outside appellee Paideia School, Inc. In their actions against appellee, appellants allege that the collision was caused by the negligence of Officer C. L. Scott, an off-duty Atlanta policeman hired by appellee to provide traffic control for a school festival. Appellants contend that appellee is liable to them upon the theory of respondeat superior because Officer Scott was acting as a servánt of the appellee school. In addition, appellants allege that appellee was directly negligent in failing to hire sufficient officers to handle traffic, in failing to notify authorities of a malfunctioning traffic light and in failing to properly formulate a proper plan of traffic control. The trial court held that Officer Scott was an independent contractor, and that the school had no duty to appellants regarding the alleged direct acts of negligence and granted summary judgment to the appellee.

1. Appellee, through Roberta Brecher, a parent volunteer, contacted the Atlanta police department to request off-duty police to help direct traffic for the festival from 9:30 a.m. until the festival closed. Officer Scott and two others were sent by their sergeant. The officers wore their Atlanta police uniforms and drove police motorcycles. The officers were paid $15 an hour by the school. Officer Scott arrived first. Brecher told him the three areas the school wanted covered. When the others arrived, Scott told them where they needed to be. During the course of the day, the officers changed positions as they saw fit. In the afternoon, Brecher asked Scott to have someone cover traffic at the Fairview-South Ponce de Leon intersection because many people were leaving the festival that way. Officer Scott elected to go there himself. It was while Scott was directing traffic there that appellant Carmichael, believing he had been instructed to do so by Officer Scott, drove onto Ponce de Leon and was hit by the car driven by appellant Beck.

“ ‘[W]hether the relationship of the parties under the contract for performance is that of master and servant or that of employer and independent contractor lies in whether the contract gives, or the employer assumes, the right to control the time, manner and method of executing the work, as distinguished from the right merely to require certain definite results in conformity with the contract. (Cits.)’ [Cit.]” Spell v. Port City Adhesives, 183 Ga. App. 816, 817 (360 SE2d 63) (1987). In cases involving police officers working for private interests, yet another element must be considered. If at the time the alleged tort was committed the police officer was performing public duties, not at the direction of the private master, the master is not liable. Pounds v. Central of Ga. R., 142 Ga. 415 (83 SE 96) (1914).

We find that the trial court correctly held that Officer Scott was acting here as an independent contractor. The case of Glenmar Cinestate, Inc. v. Farrell, 223 Va. 728 (292 SE2d 366) (1982), cited by appellee, involved a situation similar to that presented here. In Glenmar, a drive-in theatre had a standing arrangement with the sheriff’s department to provide two officers each night to patrol the drive-in and direct traffic. For this, each officer received $25. While one of the officers was standing in the public highway directing traffic out of the drive-in, one of the cars he directed onto the road was hit broadside by an oncoming car. The Supreme Court of Virginia held that the officer was an independent contractor for two reasons. First, the drive-in did not have the right to control the method the officer used to direct traffic. Second, the officer was in the performance of a public duty, the enforcement of the general laws by directing traffic.

We find the court’s reasoning in Glenmar, supra, persuasive. Georgia, like Virginia, has long had the policy that an employer of a special policeman incurs no vicarious liability as a result of acts performed by the policeman in furtherance of his public duties. Pounds, supra; see also Exposition Cotton Mills v. Sanders, 143 Ga. 593, 595 (85 SE 747) (1915). As the court was in Glenmar, we also are persuaded that directing traffic upon a public thoroughfare is a police function. The acts of a policeman thus directing traffic are not imputable to his private employer.

The dissent distinguishes Glenmar on the basis that the employer there did not know when the officers arrived and did not instruct them. This ignores the evidence in Glenmar that no directions were given because the drive-in had used the sheriff’s deputies for several years and a routine had developed. The officers were not given instructions because, through frequent repetition, they knew what was expected of them. Glenmar at 368. There is no evidence that the drive-in had more than one exit onto the highway; therefore, to say that the officer in Glenmar also selected the proper location for traffic control is to say no more than he went to the only spot he could go to do the job.

Appellants argue vigorously and well that a jury issue remains because Officer Scott in his deposition stated that he considered himself an employee of appellee. They point to the line of cases, illustrated by Augusta Roofing &c. Works v. Clemmons, 97 Ga. App. 576 (103 SE2d 583) (1958), that stands for the proposition that agency may be proved by the agent’s sworn testimony. We find no jury issue because the record is clear that there is no evidence that appellee controlled Scott in his traffic direction other than indicating where it wanted officers to be, and there is nothing in Officer Scott’s deposition to the contrary. The dissent states that the record shows evidence that appellee told Scott “What to do, how to do it and where to go.” The only evidence of record is that Brecher, the volunteer parent who contacted the police department initially, indicated to the department that she needed help with traffic from 9:30 a.m. until the festival closed. When Scott arrived, Brecher showed him the areas to cover. During the day, without direction from appellee or its agents, the officers moved as they felt the traffic flow permitted. In the afternoon, Brecher requested an officer for the Fairview location. This is hardly the encompassing direction or control the dissent seems to envision. This is no different from the situation in which one points out to the craftsman the areas one wishes to have repaired. Cf. Mason v. Gracey, 189 Ga. App. 150 (375 SE2d 283) (1988).

2. Likewise, there are no jury issues presented on appellants’ direct theories of negligence. All of the theories alleged are based upon appellee having some control over traffic upon a public street. We agree with the trial court that appellee had no such duty.

Judgments affirmed.

Carley, C. J., Banke, P. J., Birdsong, Sognier, Benham and Beasley, JJ., concur. Been, P. J., and McMurray, P. J., dissent.