November 18, 2014
Respondeat superior. Chatham State Court. Before Judge Sapp.
Oliver Maner, Patrick T. O'Connor, James P. Gerard, Benjamin M. Perkins, for appellant.
Charles M. Cork III, Gautreaux & Adams, Jarome Gautreaux, CarterFranklin, Brent C. Carter, for appellees.
DILLARD, Judge. Doyle, P. J., and Miller, J., concur.
Garden City, Georgia (the " City" ) appeals the trial court's denial of its motion for summary judgment in a negligence action brought by Ann J. Herrera, as conservator of adult ward Lisa Nicolle Muse. On appeal, the City argues that the trial court erred in (1) finding that it [329 Ga.App. 757] could be held liable because the requirements of the borrowed-servant rule were not satisfied, and (2) failing to apply the rules of contract construction in making that determination. For the reasons set forth infra, we reverse.
Viewed in the light most favorable to Herrera (i.e., the nonmoving party), the record shows that on March 25, 1994, the City and Chatham County, Georgia (the " County" ) entered into a County-City Agreement for Drug Enforcement Activities (the " Agreement" ). This Agreement resulted in the formation of the Counter Narcotics Team (the " CNT" or " Drug Unit" ), a multijurisdictional task force. And under the terms of the Agreement, the City had the right to assign at least one of its police officers to the CNT for a 27-month " tour of duty," which could be extended if necessary. Officers who were assigned by the City to the CNT remained employees of the City, and while the CNT's commanding officer and the City's police chief could both remove an assigned officer from his tour of duty, only the City could terminate an assigned officer's employment as a City officer. However, during an officer's tour of duty, the City conferred " exclusive directive supervision and authority" over the officer to the CNT commander.
In 2007, the City hired Judd Robert West as a police officer, and shortly thereafter, the police chief assigned him to the CNT. And in accordance with the Agreement, the CNT
commander had " exclusive directive supervision" over West during his tour of duty.
In July 2010, while assigned to the CNT, West was involved in a motor-vehicle collision with a car driven by Muse. At the time of the accident, West was driving from the location of one task-force operation to another pursuant to orders given by his supervising CNT officer. Subsequently, in June 2012, Muse, through Herrera, filed a complaint to recover damages for serious injuries that she suffered as a result of the accident, naming several defendants, including the City and the County.
After discovery, the City moved for summary judgment, arguing that, at the time of the accident, West was a " borrowed servant" of the County, and under the borrowed-servant rule, the City was not liable [329 Ga.App. 758] for any injuries sustained by Muse. The trial court denied the motion, finding that there was a jury question regarding whether, at the time of the collision, the County retained the exclusive authority to discharge West from his duties, which is a requirement of the borrowed-servant rule. Thereafter, the City filed an application for an interlocutory appeal, which we granted. This appeal follows.
To begin with, we note that summary judgment is appropriate when " the moving party can show that there is no genuine issue of material fact and that the movant is entitled to judgment as a matter of law."  A defendant meets this burden when the court is shown that " the documents, affidavits, depositions and other evidence in the record reveal that there is no evidence sufficient to create a jury issue on at least one essential element of the plaintiff's case."  Finally, if the moving party satisfies this burden, " the nonmoving party cannot rest on its pleadings, but must point to specific evidence giving rise to a triable issue."  With these guiding principles in mind, we turn now to the City's enumerations of error.
1. The City first argues that the trial court erred in denying its motion for summary judgment because the evidence established that, at the time of the accident, the County had the exclusive right to discharge West from the work that he was performing. We agree.
Ordinarily, when an employee commits an act of negligence within the scope of his or her employment, the employer is liable under traditional principles of respondeat superior. But one widely recognized exception to the doctrine of respondeat superior is the borrowed-servant rule, which provides that if a master lends his servant to another then " the master is not responsible for any negligence of the servant committed within the scope of his employment by the other."  And for an employee to be deemed a borrowed servant, the evidence must show that " (1) the special master had complete control and direction of the servant for the occasion; (2) the general master had no such control[; ] and (3) the special master had [329 Ga.App. 759] the exclusive right to discharge the servant."  Furthermore, in applying the borrowed-servant rule, courts should focus only on " the occasion when the injury occurred,"  as each prong
relates " only to the specific task for which the servants are loaned."  Thus, the " right to discharge" means that the special master must have " the right to discharge the servant from [his] particular work." 
On appeal, the parties agree that West's employment arrangement satisfies the first two prongs of the borrowed-servant rule. Specifically, they agree that the CNT commander (the " special master" ) had complete control and direction over West during his tour of duty and the City (the " general master" ) had no such control. Thus, only the third prong is in dispute. And as to the third prong, the parties disagree as to whether the County had the " exclusive right" to discharge West even though the City reserved the right to terminate his employment or remove him from his assignment at any time. Specifically, the City argues that binding authority supports its position that the County had such authority--relying heavily on our Supreme Court's decision in Six Flags Over Ga., Inc. v. Hill, as well as this Court's decisions in Preston v. Ga. Power Co. and Jarrard v. Doyle.
But before considering the foregoing precedents, we return to the Agreement, which is controlling in determining West's employment [329 Ga.App. 760] status because it expressly addressed all three prongs of the borrowed-servant rule. In relevant part, the Agreement provided that the " Commanding Officer [of the CNT] [could] not terminate the employment of any individual on a tour of duty on the Drug Unit ... [and] [o]nly the [City] ha[d] the authority to change an officer's employment status, rank or pay." Nevertheless, the Agreement also provides that " [a]ll personnel serving on a 'Tour of Duty' serve at the pleasure of the Commanding Officer," who could " request that any individual be replaced for any reason," and, when such a request is made, it " must be granted by the [City] and a replacement made within thirty (30) days." Finally, the City reserved the right to " remove an officer from the Drug Unit for reassignment, promotion, or other reasons," but during the officer's tour of duty, the City agreed to " relinquish all command and directive authority over [its] assigned personnel and confer exclusive directive supervision and authority to the direction of the Drug Unit Commander."
As to West, the City's chief of police testified that, in accordance with the Agreement, the CNT commander had the right to terminate West's tour of duty, and the City also reserved the right to terminate his employment or remove him from the CNT assignment " at any time ... for any reason." But the chief of police had " no control whatsoever over the hours that [West was] assigned nor what he [did] during those hours." Similarly, the CNT commander testified that, throughout West's tour of duty (including on
the date of the accident), the CNT had " exclusive directive supervision" over him and " the authority to tell [him] what to do." Indeed, according to the CNT commander, West was acting on his CNT supervisor's instructions at the time of the accident, and if the police chief had instructed West to do otherwise, the City would have violated the terms of the Agreement.
Similarly to those in Six Flags, Preston, and Jarrard, the undisputed facts in the case sub judice show that, at the time of the collision, the County, as the borrowing employer (and special master), had the unilateral right to discharge West from his assignment with the CNT and from the specific task that he was performing. Indeed, [329 Ga.App. 761] it is undisputed that, at the time of the accident, West was driving to the location of a task-force operation pursuant to his CNT supervisor's instructions, and the City had no authority to countermand those instructions. And while the City, as a general matter, retained some authority over West, including the right to remove him from his assignment to the CNT, the County had the exclusive and unilateral right to discharge West from the specific task he was performing for the CNT at the time the injury occurred. In light of the foregoing, we find that the third prong of the borrowed-servant test was satisfied.
Herrera submits that our decision in Preston is an " outlier," in which we " plainly misread"
the Supreme Court's decision in Six Flags, citing to numerous cases that she claims are in conflict with Preston. In particular, she challenges our determination in Preston [329 Ga.App. 762] that the Six Flags Court " defined the special master's 'exclusive right to discharge' the borrowed servant as the power to unilaterally discharge from working on the specific task assigned by the special master and from working for the special master."  However, in Six Flags, the Supreme Court expressly stated, " [a]s for the third test, it is undisputed that Six Flags had the exclusive right to discharge [the employee], that is, that Six Flags could unilaterally discharge [him] from working on the stuck Mind Bender cars and from working at Six Flags."  Thus, contrary to Herrera's argument, Preston is not in conflict with Six Flags or other binding precedent on the borrowed-servant doctrine, but is in complete accord with this body of jurisprudence. Indeed, every decision relied upon by Herrera is distinguishable from this case, Preston, and Six Flags because in each of those opinions there was evidence that the special master had no right, unilateral or otherwise, to discharge the borrowed employee from his particular work, that the general master retained some control and direction over the employee during his assignment with the special master, or that the general master alone could discharge the employee. Suffice it to say, this case does not fall into any
of these categories.
[329 Ga.App. 763] 2. Given our holding in Division 1, supra, we need not address the City's argument that the trial court erred in failing to apply the rules of contract construction to interpret the Agreement.
For all of the foregoing reasons, we reverse the trial court's denial of the City's motion for summary judgment.
Doyle, P. J., and
Miller, J., concur.