As a general rule in Georgia, under the doctrine of respondeat superior, an employer is liable for injuries to another proximately resulting from the acts of an employee committed within the scope of his or her employment.
As a general rule in Georgia, under the doctrine of respondeat superior, an employer is liable for injuries to another proximately resulting from the acts of an employee committed within the scope of his or her employment. O.C.G.A. § 51-2-2. In order for a master to be held liable for his servant’s actions under respondeat superior, the servant must (1) be in furtherance of the master’s business, and he or she must (2) be acting within the scope of his master’s business. Piedmont Hosp. v. Palladino, 276 Ga. 612, 613 (2003). “If a tort is committed by an employee not by reason of the employment, but because of matters disconnected from the authorized business of the master, the master is not liable.” Id. Furthermore, “[i]f a tortious act is committed not in furtherance of the employer’s business, but rather for purely personal reasons disconnected from the authorized business of the master, the master is not liable.” Id. at 613-614.
In Dowdell v. Krystal Co., a patron of Krystal fast-food restaurant arrived at the restaurant to order food during a crowded time period. 291 Ga. App. 469 (2008). The Krystal’s cashier had difficulty filling the orders quickly, which caused the crowd to become impatient. Id. After several minutes, the patron asked the Krystal’s employee if he was going to take his order, and the Krystal’s employee responded by cursing at the patron. Id. When the patron responded with his own insults, the Krystal’s employee reached across the counter and struck the patron in the face. Id. The patron and employee then rushed to the end of the counter and began fighting. Id.
The patron sued Krystal’s, among others, alleging numerous tort claims. The Court of Appeals held that the restaurant was not liable under the theory of respondeat superior for its employee’s fistfight with the patron. Specifically, the Court held that the physical acts of striking the patron were not connected to or in furtherance of the cashier’s duties at Krystal, and thus the cashier abandoned Krystal’s business when he engaged in such conduct. Id. at 471. In fact, the cashier was trained to alert the manager on duty in the event of complaining or hostile customers and was not charged with the responsibility of resolving situations involving such customers. Id. Instead, the cashier chose to engage in a personal altercation with a customer for purely personal reasons and not for any purpose beneficial to Krystal. Id.
But an employee’s job duties or role can be a significant factor in determining whether the employer can be held liable under respondeat superior. For example, in Ellison v. Burger King Corp., a patron asked if anyone was going to take her order after waiting by a Burger King cash register for some time. 294 Ga. App. 814 (2008). According to the patron’s testimony, the manager on duty came out and placed the patron in a semi-headlock position and started shaking her. Id. at 815. Then the manager turned the patron loose and asked “Are you all right now?” Id. But unlike the court in Dowdell, the Court of Appeals held that in this situation, the manager’s conduct was in the course of employment for purposes of a respondeat superior claim. Specifically, the Court held that part of the manager’s job duties was to respond to complaints, and the manager’s behavior in allegedly coming out from behind the counter and putting the patron in a headlock was in response to the patron’s complaint that she was not being served. Id. at 820. This was further supported by the manager allegedly asking the customer “is everything ok now?” and by the manager’s affidavit, which averred that her intent in touching the customer was to reassure her that she was a valued customer. Id. Therefore, an employee’s role or job duties can greatly affect whether an employer can be held responsible.
While many respondeat superior cases rely solely on the employer/employee relationship, franchisors are frequently involved. Often, the employees who commit the allegedly negligent acts are not employees of the franchisor. Rather, they are employees of the franchisee. In order to impose liability on a franchisor for the acts of a franchisee, a plaintiff must show that the franchisor has obligated itself to pay the franchisee’s debts or that the franchisee is not a franchisee in fact but a mere agent or alter ego of the franchisor. Pizza K, Inc. v. Santagata, 249 Ga. App. 36, 37 (2001).
The test to determine whether an agency relationship exists is “whether the contract gives, or the employer assumes, the right to control the time and manner of executing the work, as distinguished from the right merely to require results in conformity to the contract.” Id. at 37. The Court in Ellison held that the franchise agreement specified that the franchisee was an independent contractor and that the franchisor (Burger King Corporation) was not an employer of the franchisee or any of its employees. 294 Ga. App. 814, 821 (2008). The franchisee had the sole authority over employee hiring, working hours, benefits, wages, and employment policies. Id. Therefore, the franchisor could not be held liable for the acts of the franchisee’s employee.
But what happens when the alleged negligence is committed by someone who is actually an independent contractor? As a general rule, employers are not responsible for the torts of independent contractors. O.C.G.A. § 51-2-4. The key in making this determination is “whether the contractor is truly independent or whether he is simply the employer’s alter ego.” Whatley v. Sharma, 291 Ga. App. 228, 229 (2008); see also O.C.G.A. 51-2-5. One way to determine whether a person employed is a servant or an independent contractor is whether the “contractor in the performance of the work contracted for is free from any control by the employer in the time, manner, and method in the performance of the work.” Id. at 230.
For example, in Whatley v. Sharma, a neighbor brought suit against a homeowner and a tree-cutting contractor when their personal property was damaged by the homeowner’s tree falling into their yard as a result of the tree-cutting contractor’s action of tree falling and removal. 291 Ga. App. 228, 229 (2008). The trial court initially denied summary judgment to the homeowner but the Court of Appeals reversed the trial court’s decision, holding that the homeowner who hired the tree-cutting contractor was not responsible for the tree-cutting contractor’s actions in tree falling which ultimately caused the tree to land in the neighbor’s yard.
In making this decision, the Court of Appeals held that “since the employer has no right of control over the manner in which the work is to be done, it is to be regarded as the contractor’s own enterprise, and [it], rather than the employer, is the proper party to be charged with the responsibility for preventing the risk, and administering and distributing it.” Id. The Court of Appeals held that because the homeowner was inexperienced in tree falling and provided the contractor no equipment or tools for the job and gave no instructions on how to take down the trees, and because the contractor made the decision to cut down the second tree based on the contractor’s belief that he could cause the tree to fall into the homeowner’s yard alone, the contractor was an independent contractor and the homeowner who hired him could not be held liable for the neighbor’s property damage. Id.
When running a business, it is vital to understand the role, job duties, and actions of its employees and independent contractors. As evidenced above, an employer may not be held liable for a cashier who performs negligent acts while at work, but may be held responsible for a manager who performs similarly negligent acts, simply because of the variance of the employee’s job duties. Knowing these distinct nuances and differences may keep an employer from being held liable for an employee’s allegedly negligent acts.