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Upshaw v. Roberts Timber Company3/5/2004
Amanda Dawn Upshaw appeals an order granting summary judgment to Roberts Timber Company, Inc. ("Roberts Timber"), contending that the trial court erred in finding that Roberts Timber was not liable under the doctrines of respondeat superior and negligent entrustment for the injuries Upshaw sustained in an automobile accident. For the reasons stated below, we affirm.
On appeal from a grant of summary judgment, we conduct a de novo review, and we view the evidence and the inferences drawn from it in the light most favorable to the nonmoving party. A defendant demonstrates entitlement to summary judgment by showing that the record lacks evidence sufficient to create a jury issue on at least one essential element of the plaintiff's case. The defendant does not need to affirmatively disprove the plaintiff's case, but may prevail simply by pointing to the lack of evidence. If the defendant does so, the plaintiff cannot rest on his pleadings, but must point to specific evidence that gives rise to a triable issue of fact.
(Footnotes omitted.) O'Connell v. Cora Bett Thomas Realty.
Viewed in this light, the evidence shows that on December 24, 1999, Hubert Solomon, Jr., an employee of Roberts Timber, was driving a truck provided to him by his employer . It is undisputed that, at that time, Soloman was returning home from a personal visit with his sister and brother-in-law. While making a left turn at an intersection, Soloman's truck collided with a car driven by Upshaw.
1. Upshaw contends that Roberts Timber is liable for the injuries she sustained in the accident under the doctrine of respondeat superior. We do not agree.
"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." Allen Kane's Major Dodge v. Barnes. "Where a vehicle owned by a person and driven by his employee is involved in a collision, a presumption arises that the employee was in the scope of his employment at the time and the employer has the burden to show otherwise." Melton v. Gilleland & Sons. "This presumption may be overcome by uncontradicted evidence." Id.
When the uncontradicted testimony of the defendant and/or 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.
Allen Kane's, supra at 780.
In support of its motion for summary judgment, Roberts Timber submitted affidavits from Solomon and from Mark Roberts, its president. Both affidavits stated that Solomon was not acting within the course and scope of his employment with Roberts Timber at the time of the accident. Both Solomon's affidavit and his deposition testimony show that his trip to visit his sister and brother-in-law was personal in nature. This uncontradicted evidence was sufficient to rebut the presumption that Solomon was acting within the scope of his employment at the time of the accident. The burden thus shifted to Upshaw to show some other fact which indicated that Solomon was acting within the scope of his employment at the time of the accident. See Allen Kane'
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