CourtListener 10680012

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317 Ga. 371
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S22G0914. PRODIGIES CHILD CARE MANAGEMENT, LLC v.
COTTON.

WARREN, Justice.

In January 2018, Bianca Bouie was returning from her lunch

break to her workplace, Prodigies Child Care Management, LLC, also

known as University Childcare Center (“University Childcare”), when

she looked away from the road to scroll through the contacts in her cell

phone so that she could call her manager to report that she was

running late. While Bouie was distracted, her car crossed the median

and caused an accident with a truck that was driven by Andrea Cotton.

Cotton filed a personal injury lawsuit against Bouie and later added

University Childcare as a defendant, alleging, among other things,

that Bouie was acting in furtherance of University Childcare’s

business and within the scope of her employment at the time of the

accident and that University Childcare was therefore liable under the

legal theory of respondeat superior. After the parties conducted

discovery, University Childcare moved for summary judgment, and in
April 2021, the trial court granted the motion, concluding, in pertinent

part, that Bouie was not acting in furtherance of University

Childcare’s business and within the scope of her employment when the

accident occurred. Cotton appealed, and a divided Court of Appeals

panel reversed, holding that under the “special circumstances

exception” to the general rule that employees do not act in furtherance

of an employer’s business and within the scope of employment when

they are commuting to and from work or when they are on a lunch

break, and under two of its cases applying that “exception,” Clo White

Co. v. Lattimore, 263 Ga. App. 839 (590 SE2d 381) (2003), and Hunter

v. Modern Continental Constr. Co., 287 Ga. App. 689 (652 SE2d 583)

(2007), there was sufficient evidence to raise a jury question as to the

issue of liability under respondeat superior. See Cotton v. Prodigies

Child Care Mgmt., 363 Ga. App. 376, 378-381 (870 SE2d 112) (2022).

We granted University Childcare’s petition for certiorari to

address whether that holding was correct. As explained below, we take

this opportunity to clarify that the so-called “special circumstances

exception” is merely an application of the doctrine of respondeat

superior—not a separate doctrine or an “exception” to respondeat
2
superior. And whether respondeat-superior liability attaches turns on

whether an employee was acting in furtherance of her employer’s

business and within the scope of her employment at the time she

committed a tortious act. That same framework of analysis applies

whether or not the employee was commuting to or from work or on a

lunch break at the time. Thus, we reject the Court of Appeals’s “special

circumstances exception,” as well as the multi-factor test the court has

developed for applying that “exception.” We also conclude that Clo

White and Hunter—the two cases on which the Court of Appeals relied

in applying the “special circumstances exception”—used imprecise

language regarding the respondeat-superior test, and we disapprove

such language. In light of these conclusions, we vacate the Court of

Appeals’s opinion and remand the case to that court so that it can

apply the proper respondeat-superior test in the first instance.

1. Standard of Review and Factual Background

We review the trial court’s grant of summary judgment de novo.

McBee v. Aspire at West Midtown Apts., 302 Ga. 662, 662 (807 SE2d

455) (2017). Summary judgment is proper if the moving party

demonstrates “‘that there is no genuine issue of material fact, so that
3
the party is entitled to judgment as a matter of law.’” Id. at 663

(citation omitted). See also OCGA § 9-11-56 (c) (providing that

summary judgment is proper “if the pleadings, depositions, answers to

interrogatories, and admissions on file, together with the affidavits, if

any, show that there is no genuine issue as to any material fact and

that the moving party is entitled to a judgment as a matter of law”). A

defendant meets this requirement if it presents “‘evidence negating an

essential element of the plaintiff’s claims or establishing from the

record an absence of evidence to support such claims.’” McBee, 302 Ga.

at 663 (citation omitted). As the party opposing summary judgment,

Cotton is entitled to have the evidence in the record viewed in the light

most favorable to her and to have all reasonable inferences from the

evidence drawn in her favor. See id. at 662-663.

So viewed, the record shows the following. In January 2018,

Bouie was employed as a daycare teacher at University Childcare, and

she also attended college courses to earn her associate degree in early

childhood education.1 Bouie typically took an approximately hour-long,

1 It is undisputed that University Childcare did not require Bouie to

attend the courses and did not pay her tuition.
4
unpaid lunch break during her work day, and on January 26, she used

her lunch break to perform in a puppet show so that she could earn

extra credit in one of her courses. Earlier that day, Bouie told her

manager that she would return from her lunch break “a little bit late,”

likely “a little after 2[:00 p.m.].” She clocked out for her lunch break at

12:53 p.m., drove her own car to the location of the puppet show,

performed in the show, and then left around 2:20 p.m. After she began

driving back to work, she realized that she would arrive later than “a

little after 2[:00].” Intending to call University Childcare to let her

manager know that she was late, Bouie looked away from the road as

she held her personal cell phone in her hand and scrolled through the

contacts listed in her phone to find University Childcare’s phone

number. Before she was able to find the number, however, she looked

up and saw that her car was in the median. As she tried to swerve out

of the way of oncoming traffic, Cotton’s truck struck the passenger side

of Bouie’s car. Bouie was cited for distracted driving and failure to

maintain lane,2 and she admitted during her deposition that the

2 The Hands-Free Georgia Act, which (among other things) prohibits

5
accident was her fault.

In February 2018, Cotton filed a personal injury lawsuit against

Bouie, alleging, among other things, claims of negligence and

negligence per se. About a year later, she amended her complaint to

add University Childcare as a defendant, claiming, among other

things, that University Childcare was vicariously liable for Bouie’s

actions under the theory of respondeat superior, because Bouie was

acting in furtherance of University Childcare’s business and within the

scope of her employment when she attempted to call her manager to

report that she was late.3 Specifically, Cotton asserted that because

University Childcare had “strict teacher-child classroom ratios to

maintain throughout the day,” Bouie’s attempted call was “necessary

and in the interest of [University Childcare’s] business and personal

affairs.”

In addition, the amended complaint alleged, and Cotton later

drivers from holding a cell phone in their hands, see OCGA § 40-6-241, was not
in effect at the time of the accident. See Ga. L. 2018, p. 127, § 4.
3 The amended complaint also alleged a claim of negligent training and

supervision against University Childcare. That claim is not at issue here, so
we will not discuss it further.
6
presented evidence to the trial court showing, that University

Childcare had a policy directing its employees to speak with a manager

“as soon as possible” if they were going to arrive late to work and that

employees could be disciplined or terminated for being “absent, tardy,

or leav[ing] early without prior knowledge and approval of a

University Childcare Center administrator.” During her deposition,

Bouie testified that punctuality was “very important” at University

Childcare, and she typically called her manager if she was going to be

late. Cotton also presented evidence that the state of Georgia and

University Childcare each established applicable regulations for

teacher-to-child ratios, University Childcare had a policy enforcing

those regulations, and Bouie and the two assistant teachers with

whom she worked usually planned the times of their respective lunch

breaks so as to maintain the required teacher-to-child ratios in Bouie’s

classroom.

In February 2020, University Childcare moved for summary

judgment, arguing that the doctrine of respondeat superior did not

apply as a matter of law because Bouie was not acting in furtherance

of University Childcare’s business and within the scope of her
7
employment, as the accident occurred while she was traveling back to

work during her lunch break. After a hearing, the trial court granted

the motion in April 2021, concluding that Cotton’s theory of respondeat

superior failed as a matter of law, because Bouie was not “acting

within the scope of her employment or engaged in her employer’s

business” at the time of the accident.

Cotton appealed, and a divided panel of the Court of Appeals

reversed the grant of summary judgment. Cotton, 363 Ga. App. at 382.

The Court of Appeals explained that “[u]nder the doctrine of

respondeat superior, employers are liable for an employee’s tortious

conduct when, at the time of the injury, the employee is acting within

the scope of her employment and furthering her employer’s interests.”

Id. at 378. The court then said that under Georgia law, employees

generally do not act within the scope of employment when they are

commuting to work or when they are on a lunch break, but that there

are “exceptions to this general rule.” The court went on:

In this appeal, the exception at issue is whether “special
circumstances” existed such that Bouie was acting within
the scope of her employment while traveling to work. Clo
White[, 263 Ga. App. at 840].
Under Georgia law, the “special circumstances”
8
exception may arise when factors such as the following are
present during an employee’s work commute: (1) carrying
work materials in the employee’s car; (2) using a phone for
work-related calls; (3) receiving a stipend from an employer
for a vehicle; or (4) being “on call.” DMAC81, LLC v. Nguyen,
358 Ga. App. 170, 173 [ ] (853 SE2d 400) (2021) (citations
and punctuation omitted). This court has found sufficient
evidence of special circumstances to raise a jury question
where an employee gets into a car accident while
commuting to work when he is on the phone regarding
business-related matters or is distracted by an incoming
business-related call. See Hunter[, 287 Ga. App. at 691]; Clo
White, 263 Ga. App. at 840.

Cotton, 363 Ga. App. at 378 (footnote omitted).

The Court of Appeals recounted Cotton’s argument that under

Clo White and Hunter, “Bouie’s use of her cell phone in trying to find

her employer’s number in order to report her late arrival from lunch

constituted ‘special circumstances’ such that she was acting within the

scope of her employment at the time of the accident.” 363 Ga. App. at

379. And after explaining the facts of those cases, the Court of Appeals

said that in Clo White, the court held that “evidence showing that [an]

employee ‘may have’ been on the phone regarding matters of company

business at the time he caused [a] car accident was sufficient to create

a jury question on the issue of special circumstances[,] rendering him

within the scope of employment while driving to work,” Cotton, 363 Ga.

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App. at 379 (quoting Clo White, 263 Ga. App. at 840), and that in

Hunter the court similarly held that “evidence showing that [an]

employee ‘may have been on his cell phone regarding company

business when [an] accident occurred or that he might have been

distracted by an incoming call from [a co-worker]’ was sufficient to

raise a jury question as to the existence of special circumstances and

the potential for vicarious liability for the employer,” Cotton, 363 Ga.

App. at 379 (quoting Hunter, 287 Ga. App. at 691). Reiterating that

“[t]he test for whether University Childcare may be found liable for

Bouie’s actions is whether she was at the time of the injury ‘engaged

in the master’s business’ or ‘at that time serving the master,’” Cotton,

363 Ga. App. at 380 (quoting Clo White, 263 Ga. App. at 840), the Court

of Appeals concluded that in light of “the evidence that University

Childcare stressed to its employees the importance of reporting

tardiness, and [that] Bouie was in the act of complying with her

employer’s policy when she caused the accident,” the special

circumstances exception applied, such that Cotton had presented

sufficient evidence to raise a jury question as to whether Bouie was

acting within the scope of her employment at the time of the accident.
10
Id. at 380-381.4 One judge on the panel dissented, arguing that the

facts presented in this case did not fall within the “special

circumstance[s]” exception, so there was no factual question regarding

University Childcare’s liability. Id. at 382-384. University Childcare

filed a motion for reconsideration, which the Court of Appeals denied,

and then a petition for certiorari in this Court, which we granted.

2. Legal Framework

We now turn to the applicable statutory and decisional law

regarding the doctrine of respondeat superior.

(a) The Legal Doctrine of Respondeat Superior

The Latin phrase “respondeat superior” means “let the superior

make answer.” Respondeat Superior, Black’s Law Dictionary (11th ed.

2019). The common-law doctrine of respondeat superior, which is also

known as the “master-servant” rule, provides that employers can be

held vicariously liable for torts committed by their employees under

certain circumstances. See id.; Chorey, Taylor & Feil, P.C. v. Clark,

4 On this score, the Court of Appeals noted: “Although we do not agree

with Cotton’s insistence that Bouie’s actions were affirmatively within the
scope of her employment, we do conclude that University Childcare has not
established as a matter of law that they were not.” Cotton, 363 Ga. App. at 380.
11
273 Ga. 143, 144 (539 SE2d 139) (2000). This principle was first

codified in Georgia in 1863, see Code 1863, § 2904 (providing in

pertinent part that “[e]very person shall be liable for torts committed

by his . . . servant . . . by his command, or in the prosecution, and within

the scope of his business whether the same be by negligence or

voluntary”), and the current statute, OCGA § 51-2-2, contains

substantially similar language, saying, in pertinent part, “Every

person shall be liable for torts committed by his . . . servant by his

command or in the prosecution and within the scope of his business,

whether the same are committed by negligence or voluntarily.”

In accordance with OCGA § 51-2-2, we have explained that “‘[t]wo

elements must be present to render a master liable [under respondeat

superior]: first, the servant must be in furtherance of the master’s

business; and, second, he must be acting within the scope of his

master’s business.’” Piedmont Hosp. v. Palladino, 276 Ga. 612, 613

(580 SE2d 215) (2003) (citation omitted). See also Doe v. Saint Joseph’s

Catholic Church, 313 Ga. 558, 565 (870 SE2d 365) (2022) (quoting the

test set forth in Palladino); Quynn v. Hulsey, 310 Ga. 473, 474 n.2 (850

SE2d 725) (2020) (“Under the doctrine of respondeat superior, ‘[w]hen
12
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.’”) (quoting Hicks v. Heard, 286 Ga. 864, 865 (692 SE2d

360) (2010)). In other words, the doctrine of respondeat superior holds

an employer liable for the negligent or intentional torts of its employee

when “‘the tort was done within the scope of the actual transaction of

the [employer’s] business for accomplishing the ends of his

employment.’” Johnson Street Properties v. Clure, 302 Ga. 51, 55 (805

SE2d 60) (2017) (citation omitted).

Accordingly, an employer is not liable for an employee’s tort if the

tort was committed “‘not by reason of the employment, but because of

matters disconnected therewith.’” Clark, 273 Ga. at 144 (citation

omitted). Thus, if an employee “‘steps aside’” from her employer’s

business “‘to do an act entirely disconnected from it and injury to

another results, the [employer] is not liable.’” Clure, 302 Ga. at 55

(citation omitted). See also, e.g., Coe v. Carroll & Carroll, Inc., 308 Ga.

App. 777, 783 (709 SE2d 324) (2011) (“‘(I)f a servant steps aside from

his master’s business to do an act entirely disconnected from it’ or
13
commits a tortious act ‘for purely personal reasons disconnected from

the authorized business of the master,’ the servant is not acting in the

scope of his or her employment and in the furtherance of the master’s

business.”) (citation omitted).

In this respect, although the issue of whether an employee was

acting in furtherance of her employer’s business and within the scope

of her employment at the time she committed a tort is generally a

question for the jury, “summary judgment for the employer is

appropriate where the evidence and all reasonable inferences drawn

therefrom show that the employee was not engaged in furtherance of

the employer’s business, but was on a private enterprise of the

employee’s own.” Clark, 273 Ga. at 144. Put another way, when the

evidence that an employee was not acting in furtherance of her

master’s business and within the scope of her employment is “‘plain

and undisputable,’” a court may resolve a respondeat-superior claim

as a matter of law. Stembridge v. Pride Utility Constr. Co., 365 Ga.

App. 296, 297 (878 SE2d 271) (2022) (citation omitted).

(b) Respondeat Superior Generally Does Not Apply When an
Employee Commits a Tort While Going To or From Work

14
For nearly 90 years, appellate courts in Georgia have consistently

held that an employee “acts only for h[er] own purposes”—and not for

those of her employer—while she is going to or from work, so

respondeat superior generally does not apply when an employee

commits a tort during her work commute. Chattanooga Publishing Co.

v. Fulton, 215 Ga. 880, 883 (114 SE2d 138) (1960) (explaining that “[a]s

a general rule, a servant in going to and from his work in an

automobile acts only for his own purposes and not for those of his

employer, and consequently the employer is not to be held liable for an

injury occasioned while the servant is en route to or from his work,”

and holding that the trial court properly granted the employer’s motion

for judgment notwithstanding the verdict where the evidence showed

that the employee was in an accident while driving the employer’s

truck to work, because the employee was using the truck “for a purely

personal mission of his own . . . , in no way connected with the business

of the owner, and not within the scope of his employment”) (citation

and punctuation omitted). See also, e.g., Nguyen, 358 Ga. App. at 173

(explaining that “‘[t]he law is clear that in the absence of special

circumstances[,] a servant in going to and from work in an automobile
15
acts only for his own purposes and not for those of his employer,’” and

affirming the trial court’s grant of the employer’s motion for summary

judgment where the employee “was making his usual commute” to

work when he caused an accident) (citation omitted); Dougherty Equip.

Co. v. Roper, 327 Ga. App. 434, 435-438 (757 SE2d 885) (2014) (setting

forth the general rule that “an employee is deemed to act only for his

own purposes while commuting to work,” and reversing the trial

court’s denial of summary judgment for the employer, because the

evidence showed that the employee, who was driving the company van

from his home to the company office to “receive his assignments for the

day” at the time of the accident, “was driving the van to fulfill his duty

of arriving at work on time, and no evidence showed that [he] was

undertaking a duty at [his employer’s] direction at the time of the

accident”) (emphasis in original); Viau v. Fred Dean, Inc., 203 Ga. App.

801, 802-803 (418 SE2d 604) (1992) (explaining the general rule that

an employee “acts only for his own purposes” in commuting to and from

work, and concluding that the trial court erred by denying the

employer’s motion for summary judgment because the uncontroverted

evidence showed that the employee was on his way home from work
16
when he was involved in a collision) (citation and punctuation

omitted); Stenger v. Mitchell, 70 Ga. App. 563, 566 (28 SE2d 885)

(1944) (explaining that “[a]s a general rule, a servant in going to and

from his work in an automobile acts only for his own purposes and not

for those of his employer, and consequently the employer is not to be

held liable for an injury occasioned while the servant is en route to or

from his work,” and holding that the trial court “did not err in granting

[a] motion for nonsuit” filed by the owners of a car dealership, because

there was no evidence to support the plaintiff’s theory of respondeat

superior where a salesman for the dealership caused an accident while

driving a car owned by the dealership home from work); Elrod v.

Anchor Duck Mills, 50 Ga. App. 531, 531-533 (179 SE 188) (1935)

(holding that the trial court did not err in “granting a nonsuit” to a

corporation where its assistant superintendent struck the plaintiff

with his car while “heading for the gate to go to his work,” because the

assistant superintendent “was not acting within the scope of his

authority as agent in inflicting the alleged tort, but had only started

on his way to his daily work”). See also, e.g., Restatement (Third) Of

Agency § 7.07 cmt. (e) (2006) (“In general, travel required to perform
17
work, such as travel from an employer’s office to a job site or from one

job site to another, is within the scope of an employee’s employment[,]

while traveling to and from work is not.”); Dan B. Dobbs, Paul T.

Hayden, and Ellen M. Bublick, The Law of Torts § 428 (2d ed. 2023)

(“The master is not vicariously responsible for the acts of a servant

before work begins or after it ends. In particular, the going and coming

rule holds that in jobs with a situs such as an office or factory, an

employee coming to work or going home from it is not in

employment.”). The upshot is that as a matter of law, an employee

generally does not act in furtherance of her employer’s business and

within the scope of her employment while she travels to or from her

workplace. Thus, when an employee causes a car accident while

driving to or from work, respondeat superior generally does not apply,

absent some showing that the employee was otherwise acting in

furtherance of her employer’s business and within the scope of her

employment.5

5 Although the Court of Appeals has applied this general, longstanding

principle in dozens of cases beginning as early as 1935, it appears that this
Court has implemented the rule only once, more than 60 years ago, in
Chattanooga Publishing Co. See 215 Ga. 880.
18
In a related line of precedent, the Court of Appeals has

consistently held that an employer generally is not vicariously liable

when an employee causes a car accident during her lunch break,

because the employee was on a “purely personal mission” at the time

she committed the tort. Gassaway v. Precon Corp., 280 Ga. App. 351,

352-354 (634 SE2d 153) (2006) (noting that an “employee is deemed to

act only for his own purposes while commuting to work,” and holding

that the trial court properly granted summary judgment to the

employer where its employee, who lived in South Carolina but was

temporarily staying in Georgia for his job, caused an accident while

returning to work from his extended lunch break, which he spent

having lunch, securing temporary housing, and arranging for utility

service). See also, e.g., Mannion & Mannion, Inc. v. Mendez, 355 Ga.

App. 28, 31-33 (842 SE2d 334) (2020) (reversing the denial of the

employer’s motion for summary judgment where the uncontroverted

evidence showed that the employee was driving to lunch with a co-

worker at the time of the accident); Matheson v. Braden, 310 Ga. App.

585, 589 (713 SE2d 723) (2011) (affirming the trial court’s grant of

summary judgment for the employer, because the evidence showed
19
that the employee was traveling to his house to eat lunch at the time

of the accident); Reese v. Ga. Power Co., 191 Ga. App. 125, 128-129 (381

SE2d 110) (1989) (per curiam opinion affirming the trial court’s grant

of summary judgment to the employer, because the undisputed

evidence showed that the employee was driving his employer’s truck

while “returning to his job site after having had lunch with his mother

and sister” when he collided with the plaintiff). Like the cases about

commuting to and from work discussed above, these cases impose an

outer limit on the liability that flows from the doctrine of respondeat

superior: an employer usually is not liable as a matter of law when an

employee commits a tort while she is on her lunch break, because

absent some evidence to the contrary, an employee generally is not

acting in furtherance of her employer’s business and within the scope

of her employment at that time.

3. There Is No Separate “Special Circumstances Exception” to the
Doctrine of Respondeat Superior

As we explained above, under the doctrine of respondeat

superior, an employer is liable for the tortious acts of its employee

when the employee was acting in furtherance of her employer’s

20
business and within the scope of her employment at the time she

committed the tort. However, as a general rule, respondeat superior

does not apply, as a matter of law, when an employee commits a tort

while simply going to or from work or during her lunch break. The

Court of Appeals correctly acknowledged these principles, but it then

went astray by applying the so-called “special circumstances

exception.” After noting that “Georgia law has consistently held that

employees do not act within the scope of employment when they are

commuting to and from work, . . . nor when they are on their lunch

break,” the court said that there are “exceptions to this general rule”

and that “the exception at issue is whether ‘special circumstances’

existed such that Bouie was acting within the scope of her employment

while traveling to work.” Cotton, 363 Ga. App. at 378 (footnote

omitted). The Court of Appeals then listed factors for determining

when the “special circumstances exception” arises in cases involving

the issue of whether an employee was acting in furtherance of her

employer’s business and within the scope of employment during her

work commute. See id. Pointing to a similar application of the “special

circumstances exception” in Clo White and Hunter, the Court of
21
Appeals concluded that the exception applied here, such that there was

sufficient evidence to raise a jury issue on respondeat superior. This

analysis was flawed in the following respects.

(a) First, the Court of Appeals treated the “special circumstances

exception” as a separate legal doctrine that prevents the general rules

about commuting and lunch breaks from applying. But as we explain

below, the “special circumstances exception” is merely an application

of the doctrine of respondeat superior—not a separate doctrine.6

It appears that the “special circumstances exception” derived

6 The Court of Appeals has also recognized another “exception” to the

general rule that an employee who is traveling to or from work is engaged in a
purely personal activity for purposes of respondeat superior. The court has held
that the “special-mission exception” applies when an employee injures another
person while traveling to perform a special errand at the direction of her
employer before or after customary working hours. Graham v. Hospice
Savannah, 368 Ga. App. 91, 94-95 (889 SE2d 212) (2023). See also, e.g., Jones
v. Aldrich Co., 188 Ga. App. 581, 582-583 (373 SE2d 649) (1988) (explaining
that when an employee undertakes a special mission at the direction of the
employer, the general rule that an employee going to and from work acts only
for his own purposes does not apply, and concluding that the trial court erred
in granting summary judgment for the employer, because there was evidence
that the employee caused an accident while on her way home from a job site,
where she performed a special errand on behalf of the employer). Cotton does
not argue that the “special mission exception” applies in this case, so we need
not discuss it further. However, given our conclusion about the “special
circumstances exception” below, we are dubious that the so-called “special
mission exception” is anything other than an application of the principles of
respondeat superior.
22
from language in Hargett’s Tel. Contractors v. McKeehan, 228 Ga. App.

168 (491 SE2d 391) (1997), which said that “‘[t]he law is clear that in

the absence of special circumstances a servant in going to and from

work in an automobile acts only for his own purposes and not for those

of his employer’” before holding that no special circumstance removed

the case from that general rule, because an employee was simply on

his way home from work when he caused an accident, meaning that

his employers were not liable under the doctrine of respondeat

superior as a matter of law. Id. at 170 (citation omitted). A few years

later in Clo White and in Hunter, the court again mentioned the

“special circumstances” language from McKeehan, eventually using

the term “special circumstances exception” in several cases, including

this one, that involved the question of whether an employee who

committed a tortious act during his or her commute to or from work or

during his or her lunch break was acting in furtherance of the

employer’s business and within the scope of employment. See Cotton,

363 Ga. App. at 378-382. See also Stembridge, 365 Ga. App. at 298-300

(discussing the “special circumstances exception” and rejecting the

plaintiff’s argument that the exception applied because the employee
23
received “show-up compensation that covered the cost of his commute,”

he had company-issued tools in his truck at the time of the accident,

he was paid a “rig rate” to compensate him for his tools and truck

maintenance, and the employer required him to add its name to his

personal insurance policy as an additional insured); Nguyen, 358 Ga.

App. at 173 (discussing the “special circumstances exception” and

rejecting the plaintiff’s argument that the exception applied because

the employee was “making his usual commute” to work at the time of

the accident); Farzaneh v. Merit Constr. Co., 309 Ga. App. 637, 641

(710 SE2d 839) (2011) (discussing the “special circumstances

exception” and rejecting the plaintiff’s argument that it should apply

because the employee had a company-issued cell phone and a

company-issued tool in his truck at the time of the accident and may

have received a “vehicle allowance” as part of his compensation);

Hunter, 287 Ga. App. at 691 (saying that an employer cannot be held

liable for an accident that occurs while an employee is traveling to or

from work unless “special circumstances” exist, and concluding that

such circumstances existed); Clo White, 263 Ga. App. at 840 (saying

that an employer cannot be held liable for an accident that occurs while
24
an employee is traveling to or from work in the absence of “special

circumstances,” and concluding that such special circumstances

existed).

In these cases, the Court of Appeals addressed the question of

whether a plaintiff’s respondeat-superior claim could overcome a

motion for summary judgment by focusing its analysis on whether

“special circumstances” surrounding the employee’s commute

suggested that respondeat-superior liability should apply. In so doing,

the court created a sort of sub-doctrine of respondeat superior that

applies only when an employee commits a tortious act while

commuting to or from work or during a lunch break, effectively

removing those scenarios from the general rules about respondeat

superior and commuting that we have set forth above and risking an

analytical departure from those well-established principles.

In this respect, in applying the “special circumstances

exception,” the Court of Appeals has developed a multi-factor test that

asks whether enumerated “factors such as the following are present

during an employee’s work commute: (1) carrying work materials in

the employee’s car; (2) using a phone for work-related calls; (3)
25
receiving a stipend from an employer for a vehicle; or (4) being ‘on

call.’” Cotton, 363 Ga. App. at 378 (citing the same factors in Nguyen,

358 Ga. App. at 173). Such an analysis is an unwarranted restriction

on the totality-of-the-circumstances evaluation inherent to an analysis

of respondeat superior, including because it improperly limits the ways

in which a plaintiff can prove the ultimate question of respondeat

superior. Cf. Stembridge, 365 Ga. App. at 300 (noting these “various

factors relevant to the [special circumstances] exception” but

acknowledging that the Court of Appeals has “never held that such

factors, standing alone, were sufficient to impose vicarious liability”).

That question, by contrast, is determined by evaluating whether, given

the facts of a particular case, an employee was acting in furtherance of

her employer’s business and within the scope of her employment—not

whether any specific “factor” existed.

The Court of Appeals was correct that the long-established rule

is that an employee’s travel to or from work is not within the scope of

employment for purposes of applying the doctrine of respondeat

superior. See Cotton, 363 Ga. App. at 378. See also, e.g., Chattanooga

Publishing Co., 215 Ga. at 882. But when a plaintiff contends that the
26
employee who is traveling to or from work does something else that is

allegedly within the scope of the employee’s employment, that

contention is not properly assessed by asking if that separate act fits

within a small set of specific factors or categories. We therefore clarify

and hold that there is no need—and it is not proper—to apply a

separate test to determine whether the acts in question are so-called

“special circumstances.” The proper test is the traditional respondeat-

superior test: whether the employee was acting in furtherance of her

employer’s business and within the scope of her employment at the

time she committed the tortious act. We therefore disapprove the

Court of Appeals’s reference to and application of the “special

circumstances exception” in this case and in other cases, and its

reliance on “factors” for determining whether an employer is

vicariously liable for a tort committed by an employee during her

commute to or from work. See Stembridge, 365 Ga. App. at 300

(discussing the “special circumstances exception” and noting factors

for applying it); Cotton, 363 Ga. App. at 378-382 (holding that the

“special circumstances exception” applied and mentioning factors);

Nguyen, 358 Ga. App. at 173 (discussing the “special circumstances
27
exception” and listing factors); Farzaneh, 309 Ga. App. at 641

(discussing the “special circumstances exception”); Hunter, 287 Ga.

App. at 691 (concluding that there was evidence that “special

circumstances” existed, such that the issue of respondeat superior

could proceed to a jury); Clo White, 263 Ga. App. at 840 (same).

(b) Along these lines, in Clo White and Hunter—the only two

cases (prior to this case) in which the Court of Appeals determined that

“special circumstances” existed, such that there was sufficient

evidence to raise a jury question as to respondeat superior—the court’s

application of the “special circumstances exception” diluted the

respondeat-superior test. In this respect, Clo White and Hunter

evaluated whether an employee’s tortious act merely was related to

the employee’s work, instead of applying the correct respondeat-

superior test of whether the employee was acting in furtherance of his

employer’s business and within the scope of his employment at the

time of the tort.

In Clo White, there was evidence that an employee called his

employer three times within moments of causing an accident while

driving to work, and the purpose of at least one of the calls was to
28
inform another employee of his arrival time and “to obtain information

that would assist [him] in fulfilling his duties at the office.” See 263

Ga. App. at 839. There, the Court of Appeals affirmed the denial of the

employer’s motion for summary judgment, concluding that although

an employee who travels to and from work generally “‘acts only for his

own purposes’” “a special circumstance” existed, “whereby the

employee may have actually been conducting some manner of company

business at the same time that he was on the way to work when the

accident occurred” and that a jury issue therefore existed as to

respondeat superior. Id. at 840 (citation omitted).

In Hunter, there was evidence that within moments of a shift

supervisor’s colliding with another car while he was driving to work,

the supervisor called a co-worker, and the co-worker called the

supervisor back, but the supervisor did not answer the call. See 287

Ga. App. at 690. The supervisor testified during his deposition that he

saw the co-worker’s name appear on his cell phone screen and thought

the co-worker was calling because he was going to be late or needed

something for his job as a welder. See id. The Court of Appeals reversed

the trial court’s grant of summary judgment to the employer, holding
29
that there was evidence that the supervisor “may have been on his cell

phone regarding company business when the accident occurred or that

he might have been distracted by an incoming call from [the co-

worker], whom [the supervisor] knew was calling to tell him that he

would be late or that he needed something for his work as a welder

when he arrived” and that this evidence raised a jury question as to

whether the supervisor “was acting within the scope of his employment

upon the existence of business-related special circumstances at the

time of the accident.” Id. at 691.

The Court of Appeals in this case concluded that Clo White and

Hunter established that when there is evidence that an employee

caused a car accident “while commuting to work when he is on the

phone regarding business-related matters or is distracted by an

incoming business-related call,” there are “special circumstances”

sufficient to raise a jury question regarding respondeat superior.

Cotton, 363 Ga. App. at 378. But the test as to whether a respondeat-

superior claim survives summary judgment is not whether there is

evidence that an employee’s use of her phone was “business-related,”

but whether there is evidence that the use of the phone was in
30
furtherance of the employer’s business and within the scope of the

employee’s employment. See, e.g., Hicks, 286 Ga. at 865; Palladino,

276 Ga. at 613. Clo White and Hunter incorrectly focused on whether

the phone calls at issue in those cases were merely related to the

employee’s work, thus failing to undertake the required analysis of

whether or not there was evidence that the calls were made in

furtherance of the employers’ business and within the scope of

employment. To the extent that Clo White or Hunter suggests that a

phone call that is merely related to the employer’s business (rather

than in furtherance of the business and within the scope of the

employee’s employment) is sufficient evidence to raise a jury question

as to the issue of respondeat superior, we disapprove them. See Clo

White, 263 Ga. App. at 840 (concluding that the employee “may have

actually been on the phone regarding matters of company business at

the time of the accident,” with no analysis as to whether or not, as a

matter of law, the employee’s phone calls to his employer were made

in furtherance of his employer’s business and within the scope of

employment) (emphasis omitted); Hunter, 287 Ga. App. at 691

(determining that the evidence showed that the shift supervisor “may
31
have been on his cell phone regarding company business when the

accident occurred or that he might have been distracted by an

incoming call from [the co-worker],” and citing Clo White, without

analyzing whether or not the supervisor was acting in furtherance of

the business and within the scope of employment when he made the

phone call or became “distracted” by the incoming call).

of respondeat superior when an employee commits a tortious act while

commuting to or from work or during a lunch break, we note that some

of the language in the Court of Appeals’s opinion in this case is in line

with this framework. See Cotton, 363 Ga. App. at 380 (“The test for

whether University Childcare may be found liable for Bouie’s actions

is whether she was at the time of the injury ‘engaged in the master’s

business’ or ‘at that time serving the master’”) (quoting Clo White, 263

Ga. App. at 840). However, the Court of Appeals’s opinion also heavily

relied on the “special circumstances exception” and the imprecise

language in Clo White and Hunter, which we have now disapproved.

We therefore vacate the Court of Appeals’s opinion and remand the

case to that court so that it can apply the appropriate analysis in the
32
first instance.7

Judgment vacated and case remanded with direction. All the
Justices concur.

PETERSON, Presiding Justice, concurring.

I join the majority opinion in full. I write separately to note my

suspicion that the question we properly remand for the Court of

Appeals to decide in the first instance is not the kind of question that

is well-suited for a decision as a matter of law.

Among the first rights that the Georgia Constitution guaranteed

the people of Georgia was the right to trial by jury, and the

Constitution has held that right inviolate ever since. In that light,

summary judgment is proper only if “no rational juror could resolve

the issue in the non-moving party’s favor.” Ga. CVS Pharmacy, LLC v.

Carmichael, 316 Ga. 718, 725 (II) (B) (890 SE2d 209) (2023).

7 The concurrence expresses skepticism that the evidence presented in

this case could warrant summary judgment. Some of us are less skeptical that
a set of circumstances like the ones presented in this case could establish, as a
matter of law, that an employee was not acting in furtherance of her employer’s
business and within the scope of employment. However, we agree with the
concurrence that we need not decide that question here to conclude that the
special-circumstances exception is not the framework to evaluate a claim of
respondeat superior.
33
It seems to me that this will be a hard threshold to meet in cases

like this one. It makes sense that an employee’s commute is neither

within the scope of employment nor in the furtherance of the

employer’s business; after all, a commute is principally the result of

the employee’s choice of where to live, a matter that will almost never

be within the scope of employment and in furtherance of the employer’s

business. But the question of scope and furtherance becomes more

complicated when an employee does something work-related during

the commute. When our commute rule emerged nearly a century ago,

the state of technology did not permit such multi-tasking, and so such

complications did not really exist. But today, technology enables many

employees to make commute time as productive as office time (if not

more so).

The Court of Appeals’ “special circumstances exception” and its

factors represented an effort to bring analytical structure to the

difficult question of when work-related activity during a commute

satisfies the scope and furtherance requirements. I agree with the

majority that scope and furtherance determinations are not

susceptible to the kind of structure the Court of Appeals developed,
34
and so we properly overrule it. But in the absence of that kind of

structure, it seems to me that the question of when mid-commute

work-related activity rises to the level of scope and furtherance will

almost always be for a jury to decide.

That said, the majority properly concludes that the question in

this case is for the Court of Appeals to decide in the first instance. So

— like the majority — I express no view on the answer.

I am authorized to state that Chief Justice Boggs, Justice

Ellington, and Justice Pinson join in this concurrence.

Decided October 11, 2023.

Certiorari to the Court of Appeals of Georgia — 363 Ga. App.

376.

Gray Rust St. Amand Moffett & Brieske, Matthew G. Moffett,

M. Ryan Del Campo, for appellant.

Blaine A. Norris, John R. Autry, for appellee.

NOTICE: This opinion is subject to modification resulting from motions for reconsideration under Supreme Court
Rule 27, the Court’s reconsideration, and editorial revisions by the Reporter of Decisions. The version of the
opinion published in the Advance Sheets for the Georgia Reports, designated as the “Final Copy,” will replace any
prior version on the Court’s website and docket. A bound volume of the Georgia Reports will contain the final and
official text of the opinion.
In the Supreme Court of Georgia

Decided: October 11, 2023

S22G0914. PRODIGIES CHILD CARE MANAGEMENT, LLC, d/b/a
UNIVERSITY CHILDCARE CENTER v. COTTON.