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In the Supreme Court of Georgia

Decided: March 29, 2010

S09G1508. HICKS v. HEARD et al.

MELTON, Justice. This case involves a vicarious liability action brought by Bonnie Hicks against Mark Heard Fuel Company ("Company") for injuries Hicks received from a car collision with Jessica Heard ("Jessica"), an "on call" employee of the Company. In Hicks v. Heard, 297 Ga. App. 689 (678 SE2d 145) (2009), the Court of Appeals affirmed the trial court's grant of summary judgment in favor of the Company. In doing so, the Court of Appeals found that Hicks failed to satisfy the required burden to show that Jessica was acting in the scope of her employment with the Company at the time of the collision. We granted certiorari to determine whether the Court of Appeals gave proper weight to an employee's "on call" status during the final step of the burden shifting framework laid out in Allen Kane's Major Dodge, Inc. v. Barnes, 243 Ga. 776 (257 SE2d 186) (1979). For the reasons set forth below, we affirm.

As set forth in the Court of Appeals opinion, the record in this case shows that Samuel Heard is the vice president and co-owner of the Company and that Jessica Heard is his daughter. In 2004, Jessica was employed part-time by the Company to perform clerical work on an "as needed" basis. For her personal and work-related use, Jessica drove a sport utility vehicle, which was owned at the time by the Company. Around noon on July 13, 2004, Jessica was driving home from school when she collided into the rear-end of a vehicle, which had stopped behind some other vehicles that were waiting to turn left. The vehicle that Jessica hit subsequently collided into the back of Hicks's vehicle. Hicks sued Jessica Heard and the Company, alleging that she suffered injuries as a result of Jessica's negligence and alleging that the Company was liable for Jessica's negligence on the grounds of vicarious liability and negligent entrustment of a vehicle. At the close of discovery, the Company filed a motion for summary judgment, which the trial court granted. (Footnote omitted.) Hicks, supra, 297 Ga. App. at 689-690. Jessica testified unequivocally and without contradiction that she was on the purely personal mission of returning home after finishing an exam at school at the time that she had a vehicle collision with Hicks. In response to the Company's motion for summary judgment, Hicks countered Jessica's uncontradicted testimony only with Jessica's statement that she was "on call" at the time of the incident. The mere fact that Jessica could have been called to duty at some point in the future, however, does not contradict Jessica's
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testimony that, at the time of the collision, she was not acting in the scope of her employment. To the contrary, it is, at best, a "mere inconclusive inference . . . insufficient to get [Hicks] by [the Company's] motion for summary judgment." Allen Kane's Major Dodge, supra, 243 Ga. at 781. Given Hick's failure to present any satisfactory evidence to contradict Jessica's testimony regarding the nature of her mission, the burden-shifting framework set forth in Allen Kane's Major Dodge supports the trial court's grant of summary judgment in favor of the Company and the Court of Appeals' affirmance of that judgment. As set forth in Allen Kane's Major Dodge, the general rule of respondeat superior holds that: When 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. . . . Where a vehicle is involved in a collision, and it is shown that the automobile is owned by a person, and that the operator of the vehicle is in the employment of that person, a presumption arises that the employee was in the scope of his employment at the time of the collision, and the burden is then on the defendant employer to show otherwise. . . . The presumption that the servant is serving his master within the scope of his employment may, unless supported and corroborated by other evidence, be overcome by uncontradicted evidence. (Citations and punctuation omitted.) Id. at 777.
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Keeping these standards in mind, Allen Kane's Major Dodge sets forth a burden-shifting paradigm to be used in reviewing a motion for summary judgment. [T]he following is an appropriate test to determine when a plaintiff in this kind of case gets by a defendant's motion for summary judgment: When the uncontradicted testimony of the defendant and/or of the employee shows that the employee was not acting within the scope of his employment at the time of the accident, the plaintiff must show, in addition to the facts which give rise to the presumption that he was in the course of his employment, some other fact which indicates the employee was acting within the scope of his employment. If this "other fact" is Direct evidence, that is sufficient for the case to go to a jury. However, when the "other fact" is Circumstantial evidence, it must be evidence sufficient to support a verdict in order to withstand the defendant's motion for summary judgment. The next question obviously is, what kind of circumstantial evidence is sufficient to support a verdict? When the party upon whom the burden of an issue rests seeks to carry it, not by direct proof, but by inferences, he has not, in this reasonable sense, submitted any evidence for a jury's decision, until the circumstances he places in proof tend in some proximate degree to establish the conclusion he claims; and for this, the facts shown must not only reasonably support that conclusion, but also render less probable all inconsistent conclusions. In cases of circumstantial evidence a mere inconclusive inference, or, as the English courts express it, a mere scintilla, is not to be regarded as any evidence, so as to require the submission of its sufficiency to the jury. As we have stated, circumstantial evidence which could be taken as Inconsistent with the direct, positive testimony is sufficient to get the case to a jury. However, the rule where the circumstantial evidence is Consistent with the direct, positive testimony is
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different. Circumstantial evidence from which the existence of a fact might be inferred, but which did not demand a finding for the plaintiff to that effect, will not support a verdict when by positive and uncontradicted testimony of unimpeached witnesses, which was perfectly consistent with the circumstantial evidence relied on by the plaintiff, it was affirmatively shown that no such fact existed. (Citations and punctuation omitted). Id. at 780-781. The relevant facts of this case reveal that Jessica was a part-time employee of the Company, and Jessica's father was the vice-president and co-owner of the Company. At the time of the accident, Jessica was driving a car belonging to the Company. Jessica Heard testified during her deposition[, however,] that she was not acting within the course and scope of her employment with the Company at the time of the accident but was driving back home after finishing an exam at school. [Jessica's father] also testified that Jessica was not performing any work for the Company on the day of the accident and further stated that she had not worked for the Company at all that month because of her school schedule. Hicks, supra, 297 Ga. App. at 691 (1). As a general matter, Jessica's

"employment with the Company was described as `on call' and `as needed.'" Id. Applying these facts to the burden-shifting paradigm of Allen Kane's Major Dodge supports the trial court's grant of summary judgment to the company. The facts that Jessica was employed by the Company and was driving
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a vehicle owned by the Company at the time of the accident raised a presumption that Jessica was in the scope of her employment at the time of the collision. The Company then rebutted this presumption by providing uncontradicted testimony that Jessica was not acting within the scope of her employment at the time of the accident. The burden of proof then shifted back to Hicks who countered with evidence that Jessica was "on call" at the time of the accident, which is merely circumstantial evidence that Jessica was acting in the scope of her employment. For Hicks to survive the Company's motion for summary judgment, however, this circumstantial evidence would have to be sufficient to support a verdict. In other words, the evidence that Jessica was "on call" at the time of the accident would have to not only reasonably support Hick's conclusion that Jessica was acting in the scope of her employment, "but also render less probable all inconsistent conclusions." On this count, Hick's evidence fails, as mere evidence that Jessica could have been called into duty for the Company at some point in the future has no bearing upon and is entirely consistent with Jessica's statement that, in fact, she was not on duty at the time of the accident. Therefore, [i]n applying these rules to the facts of the case at bar, it is
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undeniable that [the fact that Jessica was "on call" at the time of the accident] is circumstantial evidence and further it is not inconsistent with [Jessica's] testimony showing that despite this fact, at the time of the accident in question, [she] was not acting within the scope of [her] employment. We find that not only does this circumstantial evidence not demand a finding for the plaintiff on the issue, it constitutes a "mere inconclusive inference" and thus is insufficient to get plaintiff by defendant's motion for summary judgment on that question. Allen Kane's Major Dodge, supra, 243 Ga. at 781. Therefore, the trial court properly granted the Company's motion for summary judgment in this case, and the Court of Appeals properly affirmed that judgment. In reaching the opposite conclusion, the dissent states: "[T]he majority erroneously manipulates the analytical framework laid out [in Allen Kane's Major Dodge] by giving no weight to testimony which, as Allen Kane's itself specifically recognizes, must be considered during the final step of the analysis, constitutes direct evidence that the employee was acting within the scope of employment, and is therefore sufficient to require that the case go to the jury." This statement, however, has no basis in law or fact and mischaracterizes both this opinion and Allen Kane's Major Dodge. As discussed below, this opinion carefully follows the burden-shifting paradigm of Allen Kane's Major Dodge and gives proper weight to an employee's on call status.
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Direct evidence is "evidence which immediately points to the question in issue." OCGA

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