Georgia Supreme Court Reshapes Vicarious Liability Under the Commute Rule

The Georgia Supreme Court has started reshaping the interpretation of vicarious liability under the commute rule or the “coming and going rule,” which could have significant ramifications for employers and their commuting employees.

Traditionally, the commute rule exempted employers from liability for torts their employees committed while commuting to or from work. The rationale behind this rule was straightforward: Commuting was an activity outside the scope of employment and served only the employee’s personal interests.

However, as time passed and the technological capabilities of commuting employees increased, this perspective evolved. Georgia courts increasingly scrutinized the activities employees engaged in during their commutes. They began identifying circumstances where the employee’s business-related commuting activities could present a legitimate question of vicarious liability for the employer.

Ultimately, two exceptions to the commute rule arose, referred to as the “Special Circumstances” and “Special Mission” exceptions. These were triggered by mid-commute employee acts such as making phone calls related to work, transporting work-related materials, traveling between work sites, being on-call, or making a special delivery or stop for their employer.

Overruling the Special Circumstances Exception

An entire legal framework and tests with multiple factors were developed to perform the liability analysis under these exceptions. However, the recent decision in Prodigies Child Care Management, LLC v. Cotton, overruled the Special Circumstances exception. The court further commented that the Special Mission exception would also likely be overruled if a case came before them on that issue.

The court in Prodigies asserted that the correct test for determining vicarious liability is the same during commutes as during any other circumstance — whether the employee was acting in furtherance of the employer’s business and within the scope of employment when the tortious act was committed. Thus, for all pending cases involving a commuting employee performing a work-related task, the vicarious liability legal analysis is now whether the employee’s action furthered the employer’s business and was in the scope of the employee’s employment.

As this decision is new, the case law will take time to develop. However, it is safe to assume that any employee action taken during a commute that benefits the employer — other than driving to or from work — may subject the employer to vicarious liability if a tort occurs.

The Risks of Phone Calls

Often, a phone call will trigger vicarious liability. An employee calls to check in or provide a location update, or a supervisor calls an employee who is on the way home to ask one last question about a report, and the employee gets into a car accident near in time to the call. In this situation, vicarious liability for the employer is on the line. Non-call situations such as asking an employee who lives near a post office to drop off an urgent piece of mail can also make the employee’s commute directly beneficial to the employer, raising vicarious liability potential.

The decision in Prodigies is a critical reminder for employers to clearly define what constitutes work-related activities, even during commutes, to mitigate potential legal exposure. Employers can create strict policies against making work calls, checking e-mails, or performing work tasks during commute times, but these policies cannot be merely facial. For example, if a company policy strictly disallows calls from commuting employees but also requires notice when an employee will be late, an employee stuck in traffic is left to violate one policy or another. Thus, a question is raised about whether the employee’s action of calling the employer was to the employer’s benefit. Likely, it was.

From a practical perspective, in considering any revisions to company policies or employee training on these issues, employers need to consider whether the policies the company must forfeit are more valuable than the risk of occasional vicarious liability or litigation.