Bacon v. News-Press & Gazette Co.

Deen, Presiding Judge,

dissenting.

“Under the theory of respondeat superior, an employer is liable for a tort committed by his employee only where the injury is inflicted in the course of the employment and not because of some private and personal act of the employee. [Cits.]” Odom v. Hubeny, 179 Ga. App. 250, 251 (345 SE2d 886) (1986); OCGA § 51-2-2, generally. “The mere fact that the assault occurred during a time of ostensible employment ... is not dispositive on the question of scope of employment. [Cit.]” Southern Bell Tel. &c. Co. v. Sharara, 167 Ga. App. 665, 667 (307 SE2d 129) (1983). In this case, it was not a situation where an employee carried out his employer’s business overzealously, but rather one where the employee acted out of “private and personal” concern for the safety of his friend/co-worker. Bacon’s deposition testimony failed to contradict Holder’s testimony that clearly indicated he acted out of this concern to rescue Mears, and not out of concern to cover a news story. The trial court thus properly granted partial summary judgment for WSAV-TV, and I must respectfully dissent from the majority opinion’s contrary conclusion.

Decided September 9, 1988 Rehearing denied October 6, 1988 Joseph B. Bergen, Frederick S. Bergen, for appellant. Dana F. Braun, Shari M. Sigman, for appellee.

I am authorized to state that Presiding Judge McMurray joins in this dissent.