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Patterson v. Southeastern Newspapers3/29/2000
P-111
Generally, an employer is not liable for injuries caused by its employees during their commute to or from work, but may be liable where an employee is on a special mission at the direction of the employer. Mariko Patterson's husband was struck and killed by an employee of Southeastern Newspapers, Inc. while the employee was driving home after delivering newspapers as a substitute for the assigned carrier who was ill. The main issue in this case is should Southeastern be held liable for the employee's negligence when the employee was called in outside of his regular hours to cover for a missing employee. Because there are facts supporting the conclusion that the employee was on a special mission for Southeastern, the trial court improperly granted summary judgment for the newspaper.
Construed in favor of Patterson, the facts show that Joshua Bourgoin was a salaried, full-time employee of Southeastern at the time of the accident. His title was "relief district manager" and his regular duties included overseeing distribution points for newspaper delivery carriers in place of absent district managers. He oversaw distribution points on Monday and Tuesday mornings from either 2:30 or 4:30 a.m. to 9:30 a.m. He made sure carriers came to work and got their newspapers, he took care of complaints, and he covered for absent drivers. But he only delivered papers if one of the carriers did not show up. On Monday and Tuesday he also attended a meeting at the office from 9:30 to 10:30 a.m. On Wednesday he attended a meeting beginning at 10:30 a.m. and had a "solicitation meeting" that involved soliciting sales in the afternoon.
For the remainder of the week he was on call. On those days, if called to do so, he covered for district managers who could not report to work, or he "threw" a route if a carrier did not show up and the district manager was already covering for another missing carrier. Burgoin might learn he was needed for such an assignment as early as Monday or Tuesday but he often received a call the night before, and sometimes the call came an hour before he was needed. If he had other plans, he was not required to come in. He was not called for this type of work every week. He did not receive extra pay for this work. Southeastern acknowledges that his assigned hours varied week to week depending on whether and to what extent he was called in after Wednesday, and that he was not required to punch a clock. Bourgoin was salaried but he also received a fixed "automobile allowance" of approximately $184.00, every two weeks, based on an estimate by Southeastern of the amount he would have to drive his car during the course of his duties.
On Wednesday night January 7, 1998, Bourgoin got a call to cover for a carrier on Thursday morning. He was not scheduled to go in that day. He finished the route around 6:00 a.m. and headed home. On the way, his car struck and killed 67-year-old Jack Patterson.
1. The general rule of respondeat superior holds:
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. [Cits.] Allen Kane's Major Dodge v. Barnes, 243 Ga. 776, 777 (257 SE2d 186) (1979).
With regard to commuting to and from work, the general rule is that the employee is acting for himself at that time and therefore, the employer is not to be held liable for an injury occurring during that time. Jones v. Aldrich Co., 188 Ga. App. 581, 583 (1) (373 SE2d 649) (1988).
However, there is an exception to the general rule where the employee undertakes a spec
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