Plaintiff Beware: Exceptions to Vicarious Liability in Georgia

Imagine this scenario: You’re a patient at a hospital being transferred from a gurney to a bed when, suddenly, a technician drops you, causing a major injury. Assuming the technician acted negligently, whom do you sue — the technician in their personal capacity or the hospital? If you said “the hospital,” you’re correct, and the reason why is vicarious liability. Referred to as respondeat superior in some contexts, vicarious liability is a legal doctrine under which one party can be held liable for the negligent acts of another party. While vicarious liability is a well-settled principle in personal injury law, there are several exceptions of which potential plaintiffs should be aware, as our Tifton injury lawyers explain. 

The Basics of Vicarious Liability in Georgia 

Vicarious liability is rooted in the doctrine of respondeat superior (“let the master answer”). It does not require the plaintiff to show that the master (usually an employer) was negligent. Rather, liability flows from the relationship between the master and the agent (usually an employee) under the assumption that employers should bear the risks of the activities their employees carry out on their behalf. 

Georgia law requires two elements to be present for vicarious liability to attach: 

1. The tortfeasor (i.e., the person committing the negligent act) must be an employee, and
2. The employee must have been acting within the scope of their employment and in furtherance of the employer’s business

Whether an employee was acting within the scope of their employment and in furtherance of the employer’s business is often the central battleground in many suits based on vicarious liability. 

Exception #1: Independent Contractors 

One of the most common strategies employers use to avoid vicarious liability is to argue that the tortfeasor was an independent contractor rather than an employee. Under O.C.G.A. § 51-2-4, employers generally are not liable for the torts of independent contractors. However, a question often arises as to whether the tortfeasor indeed was an independent contractor, as courts do not simply accept contractual labels. Rather, they evaluate whether the employer retained the right to control the manner in which the tortfeasor performed the work. Factors relevant to this determination include: 

• Who provided the tools and equipment
• Who set the work schedule
• How the worker was paid (W-2 vs. 1099)
• Whether the worker’s relationship with the employer was exclusive
• The level of supervision the employer exercised 
• Whether the work was integral to the employer’s business 

While courts typically resolve ambiguity in favor of an employer-employee relationship, plaintiffs may nonetheless bolster their claims with evidence such as contracts, supervisory records, and communications between the parties. For more information about how to show that a worker was an employee and not an independent contractor, speak to a Tifton injury lawyer. 

Exception #2: Outside the Scope of Employment

Even if a court finds that the tortfeasor was an employee, the employer often will argue that vicarious liability does not attach because the employee was acting outside the scope of their employment at the time of the incident. A question arises, then, over whether the act indeed was outside the scope of employment and how far outside the scope it was. 

Georgia courts recognize two types of deviations from work duties — “frolics” (i.e., major personal missions) and “detours” (i.e., minor deviations). Frolics are outside the scope of employment for vicarious liability purposes; detours are not. When determining whether an employee was engaged in a frolic or detour at the time of the incident, courts consider, among other factors: 

• Whether the employee was on duty 
• Whether the conduct arose from job-related duties
• Whether the employer derived a benefit from the employee’s activity 

Many personal injury cases based on vicarious liability thus turn on whether the employee’s actions could reasonably be described as a frolic (no liability) or a detour (liability). A Tifton injury lawyer can help injured plaintiffs show that an employee’s actions constituted the latter. 

Exception #3: Going and Coming

A corollary of the “outside the scope of employment” exception is the going-and-coming rule, which holds that employers are not liable for torts committed while employees are commuting to or from work, as commuting is ordinarily not considered part of the employer’s business. However, there is an exception to this exception where the employee’s coming and going are for the employer’s benefit, as may occur in the following instances: 

• The employee was driving a company vehicle
• The employer required travel between job sites
• The employee was running an errand at the employer’s request
• The employee was on call or otherwise subject to work duties 
• Driving was the employment activity (e.g., delivery driving) 

Readers should note, however, that driving a company vehicle alone may not be enough for vicarious liability to attach. Rather, courts look to the surrounding facts to determine whether the use of the company car at the time the incident occurred was within the scope of the employee’s duties. 

Exception #4 Intentional Torts 

Employers often argue that intentional torts or criminal conduct — e.g., assault and battery — automatically fall outside the scope of employment and thus are insufficient to trigger vicarious liability. And while that argument is true under most circumstances, it is not a bright-line rule. In cases involving employees who are authorized to use force, such as bouncers or security guards, courts may be more likely to find that the employee’s use of excessive force was within the scope of their employment. The key inquiry is whether the employee’s job duties created the risk of the harm and whether the ensuing harm was foreseeable to the employer. 

Overcome These Exceptions by Working With a Tifton Injury Lawyer 

Whether an exception to vicarious liability applies in a particular case is an intensely fact-specific determination that requires extensive evidence and creative arguments. Your best bet for overcoming an allegation that an exception applies is to work with experienced legal counsel. To get started, please contact a Tifton injury lawyer at the Hudson Injury Firm by calling 229-396-5848 or using our online form.