An employer generally is not responsible for torts committed by his employee when the employee exercises an independent business and in it is not subject to the immediate direction and control of the employer.
(Orig. Code 1863, § 2905; Code 1868, § 2911; Code 1873, § 2962; Code 1882, § 2962; Civil Code 1895, § 3818; Civil Code 1910, § 4414; Code 1933, § 105-501.)
Cross references.- Liability of employers for injuries to employees generally, § 34-7-20 et seq.
Law reviews.- For article surveying torts law, see 34 Mercer L. Rev. 271 (1982). For annual survey on commercial transportation, see 69 Mercer L. Rev. 41 (2017). For note discussing the doctrine of respondeat superior, see 2 Ga. St. B. J. 478 (1966). For comment on Nichols v. G.L. High Motor Co., 65 Ga. App. 397, 15 S.E.2d 805 (1941), and Andrews v. Norvell, 65 Ga. App. 241, 15 S.E.2d 808 (1941), see 4 Ga. B. J. 46 (1941). For comment on Ellenberg v. Pinkerton's, Inc., 125 Ga. App. 648, 188 S.E.2d 911 (1972), holding employer defendant may not use independent contractor defense to invasion of privacy suit resulting from actions of investigator working in his behalf, see 9 Ga. St. B. J. 519 (1973).
JUDICIAL DECISIONSANALYSIS
General Consideration
Applicability.
- O.C.G.A. § 51-2-4 pertains to an employer's liability for the negligence of an independent contractor and thus is inapplicable to cases which involve intentional torts. Peachtree-Cain Co. v. McBee, 170 Ga. App. 38, 316 S.E.2d 9 (1984), aff'd, 254 Ga. 91, 327 S.E.2d 188 (1985).
O.C.G.A. §§ 51-2-4 and51-2-5 limit an employer's vicarious liability only and do not apply to a claim arising from the employer's own conduct. England v. Beers Constr. Co., 224 Ga. App. 44, 479 S.E.2d 420 (1996).
In a premises liability action filed by the plaintiff repairman arising from injuries suffered while repairing a roof, because the trial court properly found that an out-of-possession landlord and its tenants who surrendered control of the owned premises did not ratify the repairman's employer's actions in not providing safety equipment, and did not have superior knowledge of the dangers involved, the out-of-possession landlord and its tenants were properly granted summary judgment in the repairman's premises liability action; further, an exception under O.C.G.A. § 51-2-4 did not apply, as the vicarious liability of a landowner who undertook to provide security for the actions of its security agent was not equivalent to the liability of a landowner who hired a contractor to repair its roof. Saunders v. Indus. Metals & Surplus, Inc., 285 Ga. App. 415, 646 S.E.2d 294 (2007), cert. denied, 2007 Ga. LEXIS 624 (Ga. 2007).
Independent contractor is person employed to perform work on terms that the contractor is to be free from the control of the employer as respects the manner in which the details of the work are to be executed. Bentley v. Jones, 48 Ga. App. 587, 173 S.E. 737 (1934).
Absent evidence of a master-servant relationship or that the alleged master controlled the time, manner, means, or method by which the servant completed work, these independent parties were entitled to summary judgment as to the basis of liability in a wrongful death action filed against them. Gateway Atlanta Apts., Inc. v. Harris, 290 Ga. App. 772, 660 S.E.2d 750 (2008).
Term "independent business," as used in this section, must necessarily be taken to mean a business or employment separate and independent from the business of the employer. Yearwood v. Peabody, 45 Ga. App. 451, 164 S.E. 901 (1932); Buchanan v. Canada Dry Corp., 138 Ga. App. 588, 226 S.E.2d 613 (1976).
Employer is not liable for torts committed by an independent contractor, unless the work is in itself unlawful or attended with danger to others, or the wrongful act consists in the violation of a duty imposed by the employer, or is in violation of a duty imposed by statute, or the employer interferes and assumes control so as to create the relation of master and servant, or ratifies the unauthorized wrong of the independent contractor. Massee & Felton Lumber Co. v. Macon Cooperage Co., 44 Ga. App. 590, 162 S.E. 396 (1932).
When a corporation contracts with an individual, exercising an independent employment, for the individual to do a work not in itself unlawful or attended with danger to others, such work to be done according to the contractor's own methods and not subject to the employer's control or orders, except as to results to be obtained, the employer is not liable for the wrongful or negligent acts of such independent contractor or of the servants. Quinan v. Standard Fuel Supply Co., 25 Ga. App. 47, 102 S.E. 543 (1920); Zurich Gen. Accident & Liab. Ins. Co. v. Lee, 36 Ga. App. 248, 136 S.E. 173 (1926); Massee & Felton Lumber Co. v. Macon Cooperage Co., 44 Ga. App. 590, 162 S.E. 396 (1932).
Employer of an independent contractor is not responsible for the contractor's negligent acts. United States v. Aretz, 248 Ga. 19, 280 S.E.2d 345 (1981).
When the work is not inherently dangerous except as a result of the negligence of the contractor respondeat superior does not apply. St. Paul Cos. v. Capitol Office Supply Co., 158 Ga. App. 748, 282 S.E.2d 205 (1981).
Seller of home assumed responsibility of contractor.
- Trial court erred in granting summary judgment to a home seller in an action filed by the buyers against the seller alleging negligence and a breach of contract; notwithstanding the general rule outlined in O.C.G.A. § 51-2-4, the seller could not escape liability for the alleged negligence by two of the seller's contractors in grading the property and installing the home because the seller assumed that responsibility under the sales contract. French v. Sinclair-Oconee Homes of Milledgeville, LLC, 289 Ga. App. 696, 658 S.E.2d 226 (2008).
Exceptions to general rule provided by statute.
- Employer was not liable for acts of the employer's independent contractor unless the facts and circumstances bring the case under the exceptions to such rule, plainly and unmistakably stated in former Code 1933, §§ 105-501 and 105-502 (see now O.C.G.A. §§ 51-2-4 and51-2-5). Robbins Home Imp. Co. v. Guthrie, 213 Ga. 138, 97 S.E.2d 153 (1957).
Rule in employer-independent contractor situations was one of no liability on the part of the employer, unless some of the rule's recognized exceptions as set out in former Code 1933, § 105-502 (see now O.C.G.A. § 51-2-5) were met. Moore v. J.C. Penney Co., 107 Ga. App. 254, 129 S.E.2d 538 (1963).
Georgia law imposes liability on an employer for the torts of an independent contractor only when a duty imposed by statute, and not under common law, has been violated. Uniroyal, Inc. v. Hood, 588 F.2d 454 (5th Cir. 1979).
Landowners who surrender a portion of their premises to independent contractors are relieved of their duties with regard to that portion of the premises they no longer control. PYA/Monarch, Inc. v. Higley, 219 Ga. App. 199, 464 S.E.2d 630 (1995).
O.C.G.A. § 51-2-5 does not represent an exclusive list of exceptions to the limitation of liability contained in O.C.G.A. § 51-2-4. Peachtree-Cain Co. v. McBee, 254 Ga. 91, 327 S.E.2d 188 (1985).
Test to determine status as independent contractor.
- Test to be applied in determining the relationship of the parties under the contract lies in whether the contract gives, or the employer assumes, the right to control the time and manner of executing the work, as distinguished from the right merely to require results in conformity to the contract. Zurich Gen. Accident & Liab. Ins. Co. v. Lee, 36 Ga. App. 248, 136 S.E. 173 (1926); Massee & Felton Lumber Co. v. Macon Cooperage Co., 44 Ga. App. 590, 162 S.E. 396 (1932); Yearwood v. Peabody, 45 Ga. App. 451, 164 S.E. 901 (1932); Cooper v. Dixie Constr. Co., 45 Ga. App. 420, 165 S.E. 152 (1932); Bentley v. Jones, 48 Ga. App. 587, 173 S.E. 737 (1934); Whitehall Chevrolet Co. v. Anderson, 53 Ga. App. 406, 186 S.E. 135 (1936); Fidelity & Cas. Co. v. Clements, 53 Ga. App. 622, 186 S.E. 764 (1936); De Bord v. Procter & Gamble Distrib. Co., 58 F. Supp. 157 (N.D. Ga. 1943), aff'd, 146 F.2d 54 (5th Cir. 1944); Morris v. Constitution Publishing Co., 84 Ga. App. 816, 67 S.E.2d 407 (1951); Federated Mut. Implement & Hdwe. Ins. Co. v. Elliott, 88 Ga. App. 266, 76 S.E.2d 568 (1953); Weiss v. Kling, 96 Ga. App. 618, 101 S.E.2d 178 (1957); Greenbaum v. Brooks, 110 Ga. App. 661, 139 S.E.2d 432 (1964); Savannah Elec. & Power Co. v. Edenfield, 118 Ga. App. 531, 164 S.E.2d 366 (1968); Hotel Storage, Inc. v. Fesler, 120 Ga. App. 672, 172 S.E.2d 174 (1969); Smith v. Poteet, 127 Ga. App. 735, 195 S.E.2d 213 (1972); Farmers Mut. Exch. of Commerce, Inc. v. Sisk, 131 Ga. App. 206, 205 S.E.2d 438 (1974); Warner v. Arnold, 133 Ga. App. 174, 210 S.E.2d 350 (1974); Buchanan v. Canada Dry Corp., 138 Ga. App. 588, 226 S.E.2d 613 (1976); Jones v. International Inventors, Inc. E., 429 F. Supp. 119 (N.D. Ga. 1976); Hodges v. Doctors Hosp., 141 Ga. App. 649, 234 S.E.2d 116 (1977); Sloan v. Hobbs Sporting Goods Shop, 145 Ga. App. 255, 243 S.E.2d 673 (1978); Walton v. United States, 484 F. Supp. 568 (S.D. Ga. 1980); Bowman v. C.L. McCord Land & Pulpwood Dealer, Inc., 174 Ga. App. 914, 331 S.E.2d 882 (1985).
Fact that an employee might not be generally engaged in the particular business or occupation carried on by the employee under the employee's special contract with the employer would not prevent the relation between them from being that of an employer and independent contractor, if the work undertaken was not under a contract whereby the relationship of master and servant arose. Yearwood v. Peabody, 45 Ga. App. 451, 164 S.E. 901 (1932).
When one contracts with an individual exercising an independent employment, for the individual to do a work not in itself unlawful or attended with danger to others, such work to be done according to the contractor's own methods, and not subject to the employer's control or orders, except as to results to be obtained, the employer is not liable for the wrongful or negligent acts of such independent contractor or the contractor's servants. This rule is applicable under the provisions of the Workers' Compensation Act, O.C.G.A. § 34-9-1 et seq. Bentley v. Jones, 48 Ga. App. 587, 173 S.E. 737 (1934).
Undoubtedly one cannot shield oneself under the doctrine of independent contractors by simply employing another person, and giving that person a general authority to procure others to assist in work which requires no care or skill or experience, but which is merely such as might be done by any person with sufficient physical strength. Swift & Co. v. Alston, 48 Ga. App. 649, 173 S.E. 741 (1934).
One who carries on an independent business and who contracts with another to perform services for that independent business, being answerable only for the result and not being under the control of the employer as to the time, manner, or method of doing the work, is an independent contractor for whose torts the other contracting party is not liable except in a few stated exceptions. St. Paul Cos. v. Capitol Office Supply Co., 158 Ga. App. 748, 282 S.E.2d 205 (1981).
When the contract of employment clearly denominates the other party as an independent contractor, that relationship is presumed to be true unless the evidence shows that the employer assumed such control. Ross v. Ninety-Two W., Ltd., 201 Ga. App. 887, 412 S.E.2d 876 (1991).
Respondeat superior principles were used to analyze a coverage question under a Georgia Interlocal Risk Management Agency agreement as the statutory language and coverage language was similar to that used by Georgia courts in applying the theory of respondeat superior. Ga. Interlocal Risk Mgmt. Agency v. Godfrey, 273 Ga. App. 77, 614 S.E.2d 201 (2005).
Instructions such as giving a deadline for performance or requiring that work be completed at night or before the opening of business each day do not amount to control over the time of the work because the instructions do not purport to control specifically when any particular duties were to be performed. Adcox v. Atlanta Bldg. Maint. Co., 301 Ga. App. 74, 687 S.E.2d 137 (2009).
Evidence created a genuine dispute as to whether the realtor was an independent contractor of the corporation because the Federal National Mortgage Association's (Fannie Mae) contract was with the corporation, not the realtor, and Fannie Mae's master listing agreement with the corporation required the corporation to exercise considerable control over the time, manner, and method of the realtor's work, mandated that the corporation and its subcontractors comply with the requirements of Fannie Mae's sales guide, and held the corporation responsible for its subcontractors and personnel. Mwangi v. Fannie Mae, 164 F. Supp. 3d 1403 (N.D. Ga. 2016).
Controlling question is not whether employer actually did assume control of manner of doing work, but whether the employer had the right to do so under contract. Bentley v. Jones, 48 Ga. App. 587, 173 S.E. 737 (1934); Savannah Elec. & Power Co. v. Edenfield, 118 Ga. App. 531, 164 S.E.2d 366 (1968); Hodges v. Doctors Hosp., 141 Ga. App. 649, 234 S.E.2d 116 (1977).
Independence of contract.
- Fact that a contractor employs, controls, and assumes entire charge over the contractor's workers and that the employer neither has nor exercises any control, has, by many courts, including our own, been held practically decisive of the question of the independence of the contract. Bentley v. Jones, 48 Ga. App. 587, 173 S.E. 737 (1934).
Employer's right to control inferred in certain cases.
- When one is employed generally to perform certain services for another, and there is no specific contract to do a certain piece of work according to specifications for a stipulated sum, it is inferable that the employer has retained the right to control the manner, method, and means of the performance of the contract, and that the employee is not an independent contractor. Swift & Co. v. Alston, 48 Ga. App. 649, 173 S.E. 741 (1934).
Ground upon which some decisions may have been said to have proceeded was that, in view of the humble industrial status of the persons employed and the simple character of the work to be done, the only admissible inference was that the employers intended to retain the right to give direction in regard to details of the work. Swift & Co. v. Alston, 48 Ga. App. 649, 173 S.E. 741 (1934).
Limited control by employer not equivalent to master-servant relationship.
- There is in all agreements to do specific work for another the necessary and implied power in the person for whom the work is to be done to supervise the work, to see that the desired results are attained, and to reject all products that do not come up to specifications, but this control would not change the relation of employer and independent contractor into that of master and servant. Bentley v. Jones, 48 Ga. App. 587, 173 S.E. 737 (1934).
Right of the employer to exercise a certain control over the work, when the control reserved does not apply to the manner of doing the details of the work, and does not thereby take the work out of the hands of the contractor, but goes merely to a general supervision to ensure that the ends prescribed by the contract shall be substantially met, does not destroy the independence of the relation. Bentley v. Jones, 48 Ga. App. 587, 173 S.E. 737 (1934).
If relationship of employer and independent contractor is established, merely taking steps to see that the contractor carries out the contractor's agreement, by supervision of the intermediate results obtained, or reserving the right of dismissal on grounds of incompetence, is not such interference and assumption of control as will render the employer liable for the torts of the contractor. American Sec. Life Ins. Co. v. Gray, 89 Ga. App. 672, 80 S.E.2d 832 (1954).
Supervision of independent contractor.
- Employer is not bound to supervise progress of contract work for purpose of preventing the commission of a collateral tort by independent contractor. The employer has the right to presume that the independent contractor will do the work in a prudent and proper manner. Dekle v. Southern Bell Tel. & Tel. Co., 208 Ga. 254, 66 S.E.2d 218 (1951), overruled on other grounds, Peachtree-Cain Co. v. McBee, 254 Ga. 91, 327 S.E.2d 188 (1985).
Employer liable when work inherently dangerous regardless of independent status.
- When the work done is inherently dangerous, or involves peculiar risk of bodily harm to others unless special precautions are taken, this duty is nondelegable and the employer is liable for negligence of the contractor which produces a result falling short of what it was the employer's duty to attain. Community Gas Co. v. Williams, 87 Ga. App. 68, 73 S.E.2d 119 (1952).
When the work to be done is dangerous only because of the absence of proper care, the doctrine of nonresponsibility for the negligence of the independent contractor may apply, but if the work is dangerous in itself unless reasonable care is taken to render it harmless, this doctrine does not apply. Community Gas Co. v. Williams, 87 Ga. App. 68, 73 S.E.2d 119 (1952).
Employer under no general duty to contractor's employees.
- General rule is that the independent contractor's employer is under no duty to take affirmative steps to guard or protect the contractor's employees against the consequences of the contractor's negligence or to provide for their safety. United States v. Aretz, 248 Ga. 19, 280 S.E.2d 345 (1981).
In a wrongful death action premised on both negligence and negligence per se filed on behalf of a mother's deceased minor son, a premises owner was properly granted summary judgment, as the independent contractor that hired the decedent, and not the premises owner, had sole control over its personnel, and the son's hazardous occupation on the owner's premises for a third party did not in and of itself demonstrate that the owner was in violation of Georgia's child labor laws; thus, the appeals court declined to reach the issue of whether an owner who knew or had reason to know that its independent contractor was employing a minor under the age of 16 to perform a dangerous occupation on the owner's premises was in violation of O.C.G.A. § 39-2-2. Benson-Jones v. Sysco Food Servs. of Atlanta, LLC, 287 Ga. App. 579, 651 S.E.2d 839 (2007).
Compliance with requirements of automobile and disability insurance and safety rules.
- When the employer has no contract right to and had not assumed control of the time, the manner and the method of performance of the employee, a requirement that the employer purchase auto insurance and workers' compensation and comply with safety rules and regulations for the employee's benefit did not bring the employer with the doctrine of respondeat superior. Slater v. Canal Wood Corp., 178 Ga. App. 877, 345 S.E.2d 71 (1986).
Proof of independent contractor status.
- When there is testimony uncontradicted that the employer did or did not assume and under the oral contract either did have or did not have the right to any control over the manner of doing the details of the work to be performed, such testimony prevails against any antagonistic evidence that may be introduced. Bentley v. Jones, 48 Ga. App. 587, 173 S.E. 737 (1934).
Relationship between parties is for jury as the trier of fact to determine. Smith v. Poteet, 127 Ga. App. 735, 195 S.E.2d 213 (1972).
Cited in Harrison v. Kiser, 79 Ga. 588, 4 S.E. 320 (1887); Atlanta & F.R.R. v. Kimberly, 87 Ga. 161, 13 S.E. 277 (1891); Louisville & N.R.R. v. Hughes, 134 Ga. 75, 67 S.E. 542 (1910); Lamb v. Fulton Bag & Cotton Mills, 26 Ga. App. 572, 106 S.E. 607 (1921); Central of Ga. Ry. v. Lawley, 33 Ga. App. 375, 126 S.E. 273 (1925); Hughes v. Weekley Elevator Co., 37 Ga. App. 130, 138 S.E. 633 (1927); Poss Bros. Lumber Co. v. Haynie, 37 Ga. App. 60, 139 S.E. 127 (1927); Calvert v. Atlanta Hub Co., 37 Ga. App. 295, 139 S.E. 917 (1927); Davis v. Starrett Bros., 39 Ga. App. 422, 147 S.E. 530 (1929); Lovelace v. Ivey, 41 Ga. App. 204, 152 S.E. 266 (1930); Henderson v. Nolting First Mtg. Corp., 184 Ga. 724, 193 S.E. 347 (1937); Goldman v. Clisby, 62 Ga. App. 516, 8 S.E.2d 701 (1940); Gulf Life Ins. Co. v. McDaniel, 75 Ga. App. 549, 43 S.E.2d 784 (1947); Rodgers v. Styles, 100 Ga. App. 124, 110 S.E.2d 582 (1959); City of Villa Rica v. Couch, 281 F.2d 284 (5th Cir. 1960); Newsome v. Dunn, 103 Ga. App. 656, 120 S.E.2d 205 (1961); Webb v. Wright, 103 Ga. App. 776, 120 S.E.2d 806 (1961); Townsend & Ghegan Enters. v. W.R. Bean & Son, 117 Ga. App. 109, 159 S.E.2d 776 (1968); Moore v. Oglethorpe Sanitarium, Inc., 129 Ga. App. 310, 199 S.E.2d 615 (1973); Neda Constr. Co. v. Jenkins, 137 Ga. App. 344, 223 S.E.2d 732 (1976); Johnson v. Lanier, 140 Ga. App. 522, 231 S.E.2d 428 (1976); Allen v. Cooper, 145 Ga. App. 555, 244 S.E.2d 98 (1978); Ballard v. Turner, 147 Ga. App. 584, 249 S.E.2d 637 (1978); Fields v. B & B Pipeline Co., 147 Ga. App. 875, 250 S.E.2d 582 (1978); Horn v. C.L. Osborn Contracting Co., 591 F.2d 318 (5th Cir. 1979), overruled in part by Acosta v. Hensel Phelps Constr. Co., 2018 U.S. App. LEXIS 33155 (5th Cir. 2018); Harrison & Ellis, Inc. v. Nashville Milling Co., 156 Ga. App. 697, 275 S.E.2d 374 (1980); American Cyanamid Co. v. Ring, 158 Ga. App. 525, 281 S.E.2d 247 (1981); Bayliner Marine Corp. v. Prance, 159 Ga. App. 456, 283 S.E.2d 676 (1981); Paul v. Jones, 160 Ga. App. 671, 288 S.E.2d 13 (1981); Brewer v. Williams, 167 Ga. App. 151, 305 S.E.2d 891 (1983); Bryant v. Village Ctrs., Inc., 167 Ga. App. 220, 305 S.E.2d 907 (1983); Wilmock, Inc. v. French, 185 Ga. App. 259, 363 S.E.2d 789 (1987); Baughcum v. Cecil Key Paving, Inc., 190 Ga. App. 21, 378 S.E.2d 151 (1989); Ledbetter v. Delight Whsle. Co., 191 Ga. App. 64, 380 S.E.2d 736 (1989); Scott v. McDonald, 218 Ga. App. 810, 463 S.E.2d 379 (1995); Fortune v. Principal Fin. Group, Inc., 219 Ga. App. 367, 465 S.E.2d 698 (1995); Williams v. Georgia Dep't of Cors., 224 Ga. App. 571, 481 S.E.2d 272 (1997); Johnson v. Kimberly Clark, 233 Ga. App. 508, 504 S.E.2d 536 (1998); Atkins v. MRP Park Lake, L. P., 301 Ga. App. 275, 687 S.E.2d 215 (2009); Scapa Dryer Fabrics, Inc. v. Knight, 332 Ga. App. 82, 770 S.E.2d 334 (2015), overruled on other grounds, 2016 Ga. LEXIS 445 (Ga. 2016).
Applicability to Specific Cases
Amusement parks.
- One who, by contract or otherwise, controls the operation of a fair and of the premises, invites the public to attend, and receives a percentage of the profits cannot avoid liability for a patron's injury resulting from defective amusement apparatus or devices on the grounds that the concessionaire in control of those devices is an independent contractor. Hayes v. Century 21 Shows, Inc., 116 Ga. App. 490, 157 S.E.2d 779 (1967).
Automobiles and motor vehicles.
- When the owner of an automobile delivered it to A for the purpose of being sold by A to any purchaser whom A may procure, and the entire control of the car was surrendered to A, A was not the servant of the owner, but an independent contractor. Simril v. Davis, 42 Ga. App. 277, 155 S.E. 790 (1930).
When A, acting as an independent contractor for the owner, and while operating the car in a demonstration drive for a prospective buyer who was riding in the car, negligently injured another, the owner was not liable in an action for damages for the injury; even though the owner knew that A intended to operate the car on a demonstration drive for the purpose of securing, if possible, a purchaser for the car, and that he (the owner) furnished the gasoline for the demonstration. Simril v. Davis, 42 Ga. App. 277, 155 S.E. 790 (1930).
When defendant company did not have any right to direct the manner, method, or means of performance of the work of operating and driving of a truck, owned by another, the driver of the truck was not the defendant's servant, but was the servant of the owner, an independent contractor, and the defendant was not liable for the negligence of the driver of the truck in its operation along a public highway, resulting in injury to the plaintiff. Brown v. Georgia Kaolin Co., 60 Ga. App. 347, 4 S.E.2d 100 (1939).
Automobile salesperson employed on a commission basis, who operates the salesperson's own automobile to aid the salesperson in carrying on the salesperson's employment, and whose movements are not controlled by the employer, is, with respect to the operation of the salesperson's automobile, an independent contractor, and the employer is not liable in damages for an injury to a person who was riding in the car with the employee and to whom the salesperson was trying to sell an automobile of the employer at the time, although the injury was caused by the negligence of the employee in the operation of the automobile. Whitehall Chevrolet Co. v. Anderson, 53 Ga. App. 406, 186 S.E. 135 (1936).
When an owner contracts with another as an independent contractor to cause the owner's car to be driven or transported to a specified place, to be there redelivered to the owner, and, pursuant to the contract, delivers the car to the representative of the contractor, from that time on until the car is redelivered to the owner, the car is not in the owner's custody or control, and the owner is not liable for injuries caused by the servants or agents of the contractor while in control of or operating it. De Bord v. Proctor & Gamble Distrib. Co., 146 F.2d 54 (5th Cir. 1944).
In a wrongful death action, evidence that the car dealership who hired a driver to transport one of its vehicles retained the right to control the time, method, and manner of the driver's work, raised questions of fact as to whether the driver was an employee or an independent contractor, and the dealership's summary judgment motion disclaiming liability under O.C.G.A. § 51-2-4 was denied; evidence included the fact that the dealership owned the vehicle that the driver was transporting, that the dealership did not check the driver's license or require separate insurance, and that the dealership retained the right to dictate the time that the driver was to depart with the vehicle and arrive at the destination. Richardson v. Dickerson, F. Supp. 2d (S.D. Ga. Nov. 28, 2005).
Taxicab company could not be held liable for a driver's negligence under the theory that the driver was the company's employee as the evidence did not show that the company assumed control over the time, manner, or method of the driver's work. The driver was free to work when the driver wanted, was not required to accept fares from the company, could obtain the driver's own fares, and could work anywhere the taxi could legally be operated; moreover, the car the driver was using was not owned by the company, but by another taxi driver. Lopez v. El Palmar Taxi, Inc., 297 Ga. App. 121, 676 S.E.2d 460 (2009).
Auto accidents.
- Trial court erred in granting employers summary judgment in a driver's action to recover damages for injuries the driver sustained in a vehicle collision with an employee because there was a genuine issue of material fact as to whether the degree of control exercised by the employers over the employee's work was such that the employers could be held liable for the employee's alleged negligence against the driver; a genuine issue of material fact remained as to whether, at the time of the collision with the driver, the employee was acting in furtherance of the employers' business and within the scope of the business. Broadnax v. Daniel Custom Constr., LLC, 315 Ga. App. 291, 726 S.E.2d 770 (2012).
Motorcycle accident.
- Trial court erred by granting summary judgment to the defendant on the plaintiffs' respondeat superior claim because the record revealed genuine issues of disputed facts about whether the driver who hit their motorcycle was the defendant's temporary employee or an independent contractor as, while the defendant did not pay the driver directly or choose break times, there was also evidence to support the conclusion that the defendant maintained sufficient control over the driver, such as instructing the driver on the time, method, and manner of the daily drive. Boatner v. Show Media, LLC, 331 Ga. App. 332, 771 S.E.2d 40 (2015).
Automotive repairs.
- Owner of an automobile is not liable for injuries caused by the negligence of a garage man, to whom the car was surrendered for repairs. Wooley v. Doby, 19 Ga. App. 797, 92 S.E. 295 (1917).
When owner of truck, through the owner's agent and driver, delivers the truck to a mechanic for the purpose of repair, and surrenders the entire control of the truck to the mechanic, the mechanic is not the servant of the owner, but an independent contractor, and when the mechanic, under such circumstances, negligently injures another while testing the truck, the owner is not liable in an action for damages for the injury; and fact test was being made with consent of agent of owner does not change the rule, it not appearing that the agent was riding in the truck or exercising any control over the mechanic's operation of the truck during the test. Ousley Co. v. Ledbetter, 44 Ga. App. 375, 161 S.E. 634 (1931).
Person undertaking repairs to another's automobile may not be a mechanic by trade, and may not be generally engaged in the business of repairing automobiles, but may be a domestic servant of a third person, since the labor undertaken under the contract is independent of the employer, and is thus an "independent business" within the meaning of this section so far as the parties are concerned. Yearwood v. Peabody, 45 Ga. App. 451, 164 S.E. 901 (1932).
When the owner of an automobile delivers the automobile to another person, toward whom one does not stand in the relationship of master to servant, for the purpose of repair, and surrenders the entire control of the automobile to that person, and neither reserves by the contract, nor assumes, the right to control the time, manner, or method in which the work is done, the person undertaking the labor being responsible to the owner only for results, the relation between the parties is not that of master and servant, but that of employer and independent contractor. This is true even though the person undertaking such repairs may not be a mechanic by trade, and may not be generally engaged in the business of repairing automobiles, but may be a domestic servant of a third person, since the labor undertaken under the contract is independent of the employer, and is thus an "independent business" within the meaning of this section so far as the parties are concerned. When such mechanic, while testing the automobile during the process of the work undertaken thereon, negligently injures a third person, the owner of the automobile is not liable in damages on account of such injury. De Loach v. Hicks, 50 Ga. App. 239, 177 S.E. 822 (1934).
Automobile repossession.
- Repossession of automobiles constitutes function which must be regarded as a regular part of Ford Motor Credit Company's business activities. McGuire v. Ford Motor Credit Co., 162 Ga. App. 312, 290 S.E.2d 487 (1982).
Trial court erred in granting summary judgment in favor of a creditor as to whether the creditor could be held vicariously liable for an independent contractor's acts in attempting to repossess a debtor's car because the creditor had a non-delegable statutory duty under O.C.G.A. § 11-9-609 to not breach the peace in repossessing the car, and if the contractor's attempt to repossess the car was in violation of the statute, the creditor would be chargeable with that conduct since it was done in violation of a duty imposed upon it by statute; the creditor's duty was personal and non-delegable, and a recovery based upon a breach of that duty would not constitute imposition of liability without fault. Lewis v. Nicholas Fin., Inc., 300 Ga. App. 888, 686 S.E.2d 468 (2009).
Banks.
- When a tortfeasor stated that the tortfeasor was an independent contractor with relation to the bank and unequivocally denied the existence of an employer-employee relationship, and the victim introduced no direct proof to contradict that testimony, the bare possibility that the bank might have retained some control (raised only by the circumstances) was not sufficient to prevent summary judgment for the bank. Deitrich v. Trust Co. Bank, 179 Ga. App. 330, 346 S.E.2d 107 (1986).
Carriers.
- When A and B are the joint owners of lumber and sell the lumber to be delivered at another place, and B owns a truck and employs and pays C by the day to drive the truck, and B agrees with A to transport and deliver the lumber for which A is to pay B a stipulated amount per thousand feet for hauling A's part of the lumber, B is an independent contractor in the transportation of such lumber, and A cannot be held liable for an alleged tort committed by C, the driver of the truck in the transportation of such lumber. Wallace v. Price, 55 Ga. App. 783, 190 S.E. 273 (1937).
When an injured party sued a taxicab company, alleging that the party was injured by a taxicab owned by the company which was negligently operated by its driver, who was the company's employee, the evidence at trial showed that the driver leased the taxicab from the company for a certain daily amount and that the company had no control over the manner in which the driver performed the work, so the driver was an independent contractor, and the company could not be held liable for the negligence under the doctrine of respondeat superior. Metro Taxi, Inc. v. Brackett, 273 Ga. App. 122, 614 S.E.2d 232 (2005).
In a wrongful death and personal injury suit, the trial court properly granted summary judgment in favor of a trucking company as the evidence of the trucking company's limited involvement in directing how its goods were shipped was insufficient as a matter of law to impose vicarious liability on it for a tractor-trailer driver's negligence. Further, because the driver was not an employee of the trucking company, the trucking company could not have negligently hired the driver as a matter of law. McLaine v. McLeod, 291 Ga. App. 335, 661 S.E.2d 695 (2008).
Motor carrier was not vicariously liable under O.C.G.A. § 51-2-4 for a freight company's negligent hiring of a partially blind, unlicensed trucker as the contract between the carrier and company provided that the company was an independent contractor with full control and direction of its employees, and there was no evidence that the carrier knew the company hired the trucker or that the carrier exercised control over the company's day-to-day operations. Clarendon Nat'l Ins. Co. v. Johnson, 293 Ga. App. 103, 666 S.E.2d 567 (2008), cert. denied, No. S08C2066, 2008 Ga. LEXIS 1004 (Ga. 2008); cert. denied, 556 U.S. 1229, 129 S. Ct. 2166, 173 L. Ed. 2d 1169 (2009).
Courier.
- Trial court did not err in denying a messenger service company's motion for summary judgment in a security guard's action alleging that the company was liable for a courier's conduct because although the employment contract between the courier and company designated the courier as an independent contractor, there was a genuine issue of material fact as to whether the degree of control the company exercised over the courier's delivery services was such that the company could be held liable for the courier's allegedly tortious actions against the security guard; the courier's claim that the courier was only permitted to work for the company was substantiated by the same contract, which prohibited the courier from allowing the courier's vehicle to be used by anyone other than the company. Ga. Messenger Serv. v. Bradley, 311 Ga. App. 148, 715 S.E.2d 699 (2011), cert. denied, 2012 Ga. LEXIS 56 (Ga. 2012).
Construction contractors and subcontractors.
- Person who is employed under a contract whereby the person agrees to drill a well and furnish the casing therefor for $4.00 a foot, when it does not appear that the employer has the right to direct the work or to control the manner of the work's performance, is employed to bring about a result, and is therefore an "independent contractor." Edmondson v. Town of Morven, 41 Ga. App. 209, 152 S.E. 280 (1930).
When a general contractor is in control of the premises, such contractor obtains the status of occupier so that it has a responsibility to invitees and others entering the premises which is equivalent to that duty owed by the owner of the premises. Reed v. Batson-Cook Co., 122 Ga. App. 803, 178 S.E.2d 728 (1970).
If there was any negligence on the part of a subcontractor in installing a septic tank, it was not imputable to the builder. Hall v. Richardson Homes, Inc., 168 Ga. App. 593, 309 S.E.2d 825 (1983).
Contract to build a house, with its attendant obligations, is between the buyer and builder, not the buyer and any independent contractor. Hudgins v. Bacon, 171 Ga. App. 856, 321 S.E.2d 359 (1984).
When, under a construction contract, the duty of providing safe working conditions was squarely upon the independent contractor and not the owner, and there was compliance with the clear terms of the contract, the owner was not liable for the contractor's wrongful or negligent breach of this duty, and since the owner did not owe an employee of an independent subcontractor any duty to provide safe working conditions, the owner had no liability to the employee. Modlin v. Swift Textiles, Inc., 180 Ga. App. 726, 350 S.E.2d 273 (1986).
When an insurance company did not retain or exercise any right of control over the time, manner, or method of performance of a repair contractor's work, the insurance company could not be held vicariously liable for the contractor's alleged negligence under the doctrine of respondeat superior. Carter v. Allstate Ins. Co., 197 Ga. App. 738, 399 S.E.2d 500 (1990).
Trial court correctly determined that general contractor, and not subcontractor, was responsible to homeowners for the proper erection of a garage pursuant to the written agreement which provided that the scope of the work to be performed by the general contractor included the part that later proved defective. Crispens Enter. Inc. v. Halstead, 209 Ga. App. 133, 433 S.E.2d 353 (1993).
Even though a contract between a telephone company and contractor for installation of a utility pole and underground cable denominated the contractor as independent, it also gave the company a significant amount of control over the time, method, and manner of executing the work, and the trial court did not err in finding that the installer was not an independent contractor. BellSouth Telecommunications, Inc. v. Helton, 215 Ga. App. 435, 451 S.E.2d 76 (1994).
When an independent subcontractor sued a retailer for injuries occurring while the subcontractor was doing work on the retailer's premises, the retailer was entitled to a directed verdict in its favor as the retailer exercised no control over the subcontractor's work, and any control over that work was contractually ceded to the subcontractor and to the contractor who hired the subcontractor. Neiman-Marcus Group, Inc. v. Dufour, 268 Ga. App. 104, 601 S.E.2d 375 (2004).
Utility provider to installer.
- In a personal injury action against a utility and its independent contractor, the trial court properly granted summary judgment against a cable installer, finding that: (1) the utility was not vicariously liable to the installer for the allegedly negligent acts of its contractor; (2) the utility's right to inspect the work did not render it liable for its contractor's negligence as the right was intended for the limited purpose of making sure the contractor competently carried out the terms of the contract; (3) the utility was not liable for its failure to flag a power line trench in which the installer fell and was injured, as surface markings showing the path of the trench would not have informed the installer of the danger, and the installer was not injured as a result of excavating or blasting; and (4) the High-voltage Safety Act, O.C.G.A. § 46-3-30 et seq., did not apply to afford the installer a remedy. Perry v. Georgia Power Co., 278 Ga. App. 759, 629 S.E.2d 588 (2006).
Debt collector.
- One operating a collection agency whereby one undertakes the collection of debts on a commission, and whose services are in no wise subject to the employer's control or orders as to the time, manner, or method of their execution, does not occupy the status of a servant, but must be taken as exercising an independent business. When one contracts with an individual thus exercising an independent business to do a work not in itself unlawful or attended with danger to others, the employer is not liable for the wrongful or negligent acts of the independent contractor or the contractor's servants. Calvert v. Atlanta Hub Co., 37 Ga. App. 295, 139 S.E. 917 (1927).
Eminent domain.
- Whether the statute embodied in former Code 1933, §§ 105-501 and 105-502 (see now O.C.G.A. §§ 51-2-4 and51-2-5) was exhaustive as to exceptions to the rule of nonliability of an employer for the acts of an independent contractor, it must yield to and cannot control the constitutional duty imposed upon a condemnor to pay compensation for the taking or damaging of private property for public purposes whether or not such taking or damaging was done by an independent contractor hired by the condemnor. Fulton County v. Woodside, 223 Ga. 316, 155 S.E.2d 404 (1967); Georgia Power Co. v. Jones, 122 Ga. App. 614, 178 S.E.2d 265 (1970).
Factory.
- Factory was not liable for independent contractor's unauthorized, unsupervised use of a forklift to raise the defendant to the contractor's truck for repairing a factory fan. Murphy v. Blue Bird Body Co., 207 Ga. App. 853, 429 S.E.2d 530 (1993).
Floor cleaning service.
- When the agreement between the defendant grocery store and floor cleaning service gave the store only the general right to order the work stopped or resumed, to inspect its process or to receive reports, to make suggestions or recommendations and to prescribe alterations and deviations, it was not shown that the store controlled work methods, and it was not error to grant summary judgment to the store on the issue that the service was an independent contractor. Feggans v. Kroger Co., 223 Ga. App. 47, 476 S.E.2d 822 (1996).
Franchises.
- Because the need for controls over the use of a trade name, in a franchise agreement authorizing such use, has generally been recognized, a franchise contract under which one operates a type of business on a royalty basis does not create an agency relationship. Buchanan v. Canada Dry Corp., 138 Ga. App. 588, 226 S.E.2d 613 (1976).
Hair salon.
- In an action by a patron against a hair salon for injuries allegedly caused by the negligence of an apprentice facial esthetician, because of the relationship between the salon and the apprentice imposed by O.C.G.A. § 51-2-4 and the evidence of the degree of control actually asserted by the salon, summary judgment that the salon was not liable under respondeat superior for any negligent acts of the apprentice and/or employee was not authorized. Brown v. Who's Three, Inc., 217 Ga. App. 131, 457 S.E.2d 186 (1995).
Hospitals.
- Noncharitable hospital is liable for the negligence of its nurses, orderlies, and other employees, in the performance of mere administrative or clerical duties which, though constituting a part of the patient's prescribed medical treatment, do not require the application of a specialized technique or the understanding of a skilled physician or surgeon and which duties are not performed under the direct supervision of the attending physician. Moore v. Carrington, 155 Ga. App. 12, 270 S.E.2d 222 (1980).
Home repairs.
- Homeowner who hired a third party who negligently repaired the owner's air conditioner was not liable for the negligence of that party in the absence of evidence that the owner exercised any control over the work. Clemmons v. Griffin, 230 Ga. App. 721, 498 S.E.2d 99 (1998).
Hotel franchisor.
- After reviewing the franchise agreement and operating manual in their entirety, the trial court properly ruled that no franchise agreement existed between the hotel franchisor and franchisee to hold the former liable for the latter's alleged infliction of the patron's injuries upon the patron's ejection from the hotel lounge. McGuire v. Radisson Hotels Int'l, Inc., 209 Ga. App. 740, 435 S.E.2d 51 (1993).
Insurance companies.
- While contract between solicitor of insurance and insurance company indicated a relationship of independent contractor and employer, when evidence discloses that insurance company's state manager, by whom the contractor was employed and under whose supervision the contractor worked, allotted certain territory to the contractor, and required regular attendance at morning staff meetings, and that the insurance company paid for the salesperson's license, furnished the salesperson all literature and selling aids, required the salesperson to own an automobile as a condition of employment; and that at the time of the collision salesperson was on the salesperson's way to interview a prospective customer whose name had been given the salesperson at the office, evidence authorizes finding that the master-servant relationship existed. American Sec. Life Ins. Co. v. Gray, 89 Ga. App. 672, 80 S.E.2d 832 (1954).
Janitorial service.
- Trial court did not err in granting a janitorial services contractor summary judgment in an employee's suit to recover damages for injuries sustained when the employee slipped and fell on ice in the employer's parking lot because, under O.C.G.A. § 51-2-5(5), the contractor's indication to a subcontractor that mop water could be discarded in back of the building was insufficient to constitute an assumption of control by the contractor so as to create the relation of master and servant or so that an injury resulted that was traceable to its interference but was no more than a general indication that the mop water could be discarded in back of the building, and the contractor's willingness to supply materials to the subcontractor did not intrude into the subcontractor's ability to control the daily operations of its business; the agreement between the contractor and subcontractor provided for an independent contractor relationship because the subcontractor had full authority and responsibility over its employees, including hiring and firing, and under the agreement, the contractor had delivered full and complete possession of the premises to the subcontractor, which gave the specific instructions about where to discard the water. Adcox v. Atlanta Bldg. Maint. Co., 301 Ga. App. 74, 687 S.E.2d 137 (2009).
Brushing land.
- Summary judgment was properly entered for a realtor and a developer as to a landowner's claim that the realtor and the developer were liable under O.C.G.A. §§ 51-2-4 and51-2-5 for failing to ascertain and communicate to an independent contractor hired by the developer to brush the realtor's lot the location of the boundary between the realtor's lot and the landowner's lot; the developer testified that the developer used a creek and a transformer as landmarks for the boundary line in instructing the contractor, and the landowner did not challenge the use of the landmarks. Sorrow v. Hadaway, 269 Ga. App. 446, 604 S.E.2d 197 (2004).
Logger who did work for more than one company, owned the logger's own equipment, was paid by the ton for the timber the logger cut, and negotiated the price before the loger began cutting was an independent contractor. Jacobs v. Thomson Oak Flooring, 250 Ga. App. 56, 550 S.E.2d 465 (2001).
Crop duster was independent contractor.
- Crop duster was an independent contractor to a cotton farm owner. The farmer hired the crop duster on a one-time basis to apply the chemicals, the farmer did not control precisely when and how the crop duster flew during the crop dusting, and the farmer asked the crop duster to perform the defoliation based on the recommendation from a cotton scout that the farmer's crop was ready. Yancey v. Watkins, 308 Ga. App. 695, 708 S.E.2d 539 (2011).
Installation of satellite television company's cable equipment.
- After the plaintiffs' home was struck by lightning on or near the exterior satellite cable equipment, causing the lightning to travel through a metal doorknob that the plaintiff was touching, resulting in the plaintiff's injury, the satellite television company's motion for summary judgment was properly granted as the company was not responsible for torts committed by independent contractors; and the seller and the installer were independent contractors because the fact that the installer displayed a company logo on the installer's attire and vehicle, alone, was not sufficient to transform its status as an independent contractor; and the company lacked the right to direct or control the time and manner of the installation of the system. Ward v. DirecTV LLC, 342 Ga. App. 69, 801 S.E.2d 110 (2017).
Lessor not liable to servant of lessee.
- Lessor is not liable to a servant of the lessee arising from the negligence of the latter. Crusselle v. Pugh, 67 Ga. 430, 44 Am. R. 724 (1881).
Physicians.
- Trial court properly granted summary judgment to professional corporation on the patient's medical malpractice action against it as the patient alleged that the doctor who allegedly caused the medical malpractice did so while acting as an agent or employee of the professional corporation, but the evidence actually showed the doctor was working for the second professional corporation with an office in another county, and that the doctor could not have been acting as an agent or employee of the professional corporation because the professional corporation was not active, the doctor had closed the doctor's office, and the patient at all times was seen by the doctor at the second professional corporation which the doctor incorporated after the professional corporation ceased to do business. Dix v. Shadeed, 261 Ga. App. 145, 581 S.E.2d 747 (2003).
Medical care provided to prisoners.
- When prisoner's doctor was an independent contractor, not an employee of the sheriff, the doctor was not an employee within the meaning of subsection (b) of O.C.G.A. § 51-2-4 and did not have official immunity; therefore, any negligence of the doctor could not be imputed to sheriff. Cantrell v. Thurman, 231 Ga. App. 510, 499 S.E.2d 416 (1998).
Nightclub performer.
- When a nightclub patron was injured by the alleged negligence of a performer at a nightclub, neither the nightclub nor the nightclub's employee could be held liable because the performer was an independent contractor, and not an employee of the nightclub as: (1) the nightclub's oral agreement with the performer only set when the performer would perform and how much the performer would be paid, but did not dictate the manner or method of the performer's routine; (2) the nightclub's ability to stop the show, policy forbidding weapons, and determination of the schedule for performers' performances did not create a fact issue as to whether the nightclub controlled the time, manner, and method of the performance; and (3) while not dispositive, it was highly relevant that the performer did not perform the performer's services on a regular basis or for a fixed period of time. Orton v. Masquerade, Inc., 311 Ga. App. 656, 716 S.E.2d 764 (2011).
Newspaper carrier.
- Evidence demanded the finding that the newscarrier whose act was alleged to have been the cause of the plaintiff's injuries was an independent contractor, and the trial court did not err in directing the verdict for the defendant company. Morris v. Constitution Publishing Co., 84 Ga. App. 816, 67 S.E.2d 407 (1951).
Employee making deliveries on day off.
- In a personal injury case when an employee was involved in a collision during the employee's day off, but when the employee regularly made deliveries on that day between the employee's employer and affiliated companies, summary judgment for the affiliates was proper because the employee was acting, at most, as an independent contractor with respect to the affiliates in making the deliveries. Thompson v. Club Group, Ltd., 251 Ga. App. 356, 553 S.E.2d 842 (2001).
Private security agencies.
- Even though hirers of an independent security or protective agency have generally been held not liable for negligent torts of agency personnel, when the hirer did not exercise control over them, the hirers have been held liable for the intentional torts of the agency's personnel committed, in the scope of the agency's employment, against the hirer's invitees. United States Shoe Corp. v. Jones, 149 Ga. App. 595, 255 S.E.2d 73 (1979).
Employer of a private detective agency was held liable to a third person for an invasion of privacy committed during the course of an investigation by the agency's personnel, despite the fact that the agency was employed as an independent contractor. United States Shoe Corp. v. Jones, 149 Ga. App. 595, 255 S.E.2d 73 (1979).
Rule that a property owner is liable for the intentional torts of an employee of a private security agency hired to guard the property is applicable when the agency is hired by the manager of the property rather than by the owner personally. Peachtree-Cain Co. v. McBee, 254 Ga. 91, 327 S.E.2d 188 (1985).
Procuring investments.
- Employer was not vicariously liable for a broker's acts in fraudulently inducing the plaintiffs to invest in a nonexistent fund which the broker falsely represented as a fund of the employer since the acts were committed for the broker's personal benefit, involved no participation by the employer, and were of no benefit to the employer. Hobbs v. Principal Fin. Group, Inc., 230 Ga. App. 410, 497 S.E.2d 243 (1998).
Retail sales.
- If the manner in which the details of the work of selling the defendant's automobiles are to be done is left to the salesperson, and the defendant company is interested only in the result of the salesperson's work, the salesperson is an independent contractor. Whitehall Chevrolet Co. v. Anderson, 53 Ga. App. 406, 186 S.E. 135 (1936).
Servant of stevedore.
- Employer of a stevedore is not liable for injuries received by one of the employees. Rankin v. Merchants Miners' Transp. Co., 73 Ga. 229 (1884).
Tree felling.
- In civil action for damages caused by felling of a tree under the doctrine of respondeat superior, the trial court erroneously denied the homeowner's motion for summary judgment as an independent contractor was hired to fell the tree and homeowner had no control over the contractor's actions, and the act of felling the tree was not wrongful in itself; moreover, the homeowner's single suggestion or comment that the contractor could proceed with felling the tree as an entire unit did not necessarily have to be followed and did not create liability on the homeowner's part, but was simply confirming the freedom of the contractor to fell the tree as that contractor deemed appropriate. Whatley v. Sharma, 291 Ga. App. 228, 661 S.E.2d 590 (2008).
Tree trimming and vegetation removal for power company.
- Power company was not liable for a construction company's actions relating to the trimming of trees and removal of vegetation in the right-of-way because the construction company was an independent contractor that was responsible for the time, manner, and method of doing the work. Wilann Props. I, LLC v. Ga. Power Co., 321 Ga. App. 297, 740 S.E.2d 386 (2013).
Workers' compensation.
- O.C.G.A. § 34-9-11 of the Workers' Compensation Act, O.C.G.A. § 34-9-1 et seq., expressly abrogated the vicarious liability provisions of O.C.G.A. §§ 51-2-2 and51-2-4 which would have otherwise permitted the parents of an employee of an independent subcontractor to bring a tort action against the general contractor/statutory employer. McCorkle v. United States, 737 F.2d 957 (11th Cir. 1984).
When home buyers sued an engineering firm for professional negligence for an allegedly negligent inspection of the home, the firm's alleged professional negligence could not be imputed to the sellers or the sellers' agent, as the sellers and agent were not negligent in making the firm's representations themselves or inducing the firm to make a negligent inspection of the home. Smiley v. S & J Inves., Inc., 260 Ga. App. 493, 580 S.E.2d 283 (2003).
Lack of evidence supporting the contention that the worker was an employee.
- When the terms of a lease clearly denominated the worker as an independent contractor, the law presumed that the worker was in fact an independent contractor unless the evidence suggested otherwise and it did not in the instant case. The lack of evidence supporting the contention that the worker was an employee was fatal to the vicarious liability claim brought under O.C.G.A. § 51-2-4 against the corporations. Clark v. Roberson Mgmt. Corp., F. Supp. 2d (M.D. Ga. Jan. 11, 2005).
OPINIONS OF THE ATTORNEY GENERAL
Test to determine status as independent contractor.
- True test whether a person employed is a servant or an independent contractor is whether the employer, under the contract, whether oral or written, has the right to direct the time, the manner, the methods, and the means of the execution of the work, as contradistinguished from the right to insist upon the contractor producing results according to the contract, or whether the contractor in the performance of the work contracted for is free from any control by the employer of the time, manner and method in the performance of the work. 1958-59 Op. Att'y Gen. p. 390.
RESEARCH REFERENCES
Am. Jur. 2d.
- 27 Am. Jur. 2d, Employment Relationship, § 356 et seq.
"Fraudulent or Dishonest Act" by Employee Covered by Fidelity Bond, 13 POF3d 559.
Complicity Rule in Motor Vehicle Accident Cases: Employer's Authorization or Ratification of Driver's Conduct, 19 POF3d 437.
C.J.S.- 30 C.J.S., Employer-Employee, § 237 et seq.
ALR.
- Employment of incompetent, inexperienced, or negligent employee as independent ground of negligence toward one other than an employee, 8 A.L.R. 574.
Liability of master for injury inflicted by servant with firearms, 10 A.L.R. 1087; 75 A.L.R. 1176.
Liability of master for damage to person or property due to servant's smoking, 13 A.L.R. 997; 31 A.L.R. 294.
Duty of an employer with respect to the timbering of a mine, under the common law and general statutes, 15 A.L.R. 1380.
Liability for misconduct or negligence of messenger not directly related to the service, 18 A.L.R. 1416.
General discussion of the nature of the relationship of employer and independent contractor, 19 A.L.R. 226.
Circumstances under which the existence of the relationship of employer and independent contractor is predictable, 19 A.L.R. 1168.
Liability of employer growing out of unauthorized act of employee in taking charge of property as accommodation, 23 A.L.R. 131.
Contributory negligence or assumption of risk in disobeying rules or directions of master under counter directions by superior, 23 A.L.R. 315.
Liability of employer as predicated on the ground of his being subject to a nondelegable duty in regard to the injured person, 23 A.L.R. 984.
Nondelegable duty of employer in respect of work which will in the natural course of events produce injury, unless certain precautions are taken, 23 A.L.R. 1016.
Nondelegable duty of employer with respect to work which is inherently or intrinsically dangerous, 23 A.L.R. 1084.
Independent contractor: remedial rights in respect of injuries caused by breaches of positive duties correlative to corporate franchises, 28 A.L.R. 122.
Liability of employer for injuries inflicted by automobile while being driven by or for salesman or collector, 29 A.L.R. 470; 54 A.L.R. 627; 107 A.L.R. 419.
Liability of employer for acts or omissions of independent contractor in respect of positive duties or former arising from or incidental to contractual relationships, 29 A.L.R. 736.
Independent contractor: liability of employer as predicated on the ground of his personal fault, 30 A.L.R. 1502.
Judgment for or against master in action for servant's tort as bar to action against servant, 31 A.L.R. 194.
Independent contractor: extent of the employer's liability after he has assumed control of the subject-matter of the stipulated work, 31 A.L.R. 1029.
Liability of contractee and contractor inter se with respect to injuries sustained while the stipulated work is in course of performance, 44 A.L.R. 891.
Liability of the contractee for injuries sustained by the contractor's servants in the course of the stipulated work, 44 A.L.R. 932.
Owner's liability for injury by automobile while being used by a servant for his own pleasure or business, 45 A.L.R. 477.
Personal liability of agent to third person for injuries or damages due to condition of principal's premises, 49 A.L.R. 521.
Liability of one undertaking to repair automobile for injury to third person, 52 A.L.R. 857.
Liability for injuries resulting from failure of independent contractor to guard opening in sidewalk while delivering merchandise, etc., 53 A.L.R. 932.
Salesman employed on a percentage or commission basis as a servant or an independent contractor, 61 A.L.R. 223.
Necessity of verdict against servant or agent as condition of verdict against master or principal for tort of servant or agent, 78 A.L.R. 365.
Negligence of driver of automobile as imputed to members of joint enterprise, 85 A.L.R. 630.
Independent contractor rule as applied to injuries resulting from conditions created by independent contractors in streets, 115 A.L.R. 965.
Prima facie case or presumption from registration of automobile in name of, or from proof of ownership by, defendant, as applicable to questions other than the master-servant relationship at time of accident, 122 A.L.R. 228.
One soliciting subscriptions for newspaper, magazine, or book, on commission basis as an independent contractor or employee, 126 A.L.R. 1120.
Criminal responsibility of one authorized generally to sell intoxicating liquors for particular illegal sale thereof by employee or agent, 139 A.L.R. 306.
Variance between allegation and proof as regards identity of servant or agent for whose acts defendant is sought to be held responsible, 139 A.L.R. 1152.
Homework by employee as affecting employer's responsibility for injury to third person due to employee's negligence while on way to or from home, 146 A.L.R. 1193.
Automobile owner's common law liability for negligence in entrusting car to known incompetent, reckless, or inexperienced person as affected by statute limiting owner's liability to use within terms of consent, 163 A.L.R. 1418.
Employer's liability for assault by truck driver or chauffeur, 172 A.L.R. 532.
Loaned servant doctrine under Federal Employers' Liability or Safety Appliance Act, 1 A.L.R.2d 302.
Doctrine of apparent authority as applicable where relationship is that of master and servant, 2 A.L.R.2d 406.
Liability under respondeat superior doctrine for acts of operator furnished with leased machine or motor vehicle, 17 A.L.R.2d 1388.
Employer's liability for negligence of employee in piloting his own airplane in employer's business, 46 A.L.R.2d 1050.
Deviation from employment in use of employer's car during regular hours of work, 51 A.L.R.2d 8; 65 A.L.R.4th 346.
Employee's operation of employer's vehicle outside regular working hours as within scope of employment, 51 A.L.R.2d 120.
Route driver or salesman as independent contractor or employee of merchandise producer or processor, for purposes of respondeat superior doctrine, 53 A.L.R.2d 183.
Liability of employer for negligent operation of motor vehicle by automobile salesman, 53 A.L.R.2d 631.
Employer's liability for assault by taxicab or motorbus driver, 53 A.L.R.2d 720.
Liability of hospital or sanitarium for negligence of physician or surgeon, 69 A.L.R.2d 305.
Status of gasoline and oil distributor or dealer as agent, employee, independent contractor, or independent dealer as regards responsibility for injury to person or damage to property, 83 A.L.R.2d 1282.
Liability insurance of garages, motor vehicle repair shops and sales agencies, and the like, 93 A.L.R.2d 1047.
Respondeat superior: deviation from scope of employment in flying employer's airplane, 100 A.L.R.2d 1346.
Right of employer sued for tort of employee to implead the latter, 5 A.L.R.3d 871.
Liability of corporation for torts of subsidiary, 7 A.L.R.3d 1343.
Owning, leasing, or otherwise engaging in business of furnishing services for taxicabs as basis of tort liability for acts of taxi driver under respondeat superior doctrine, 8 A.L.R.3d 818.
Liability of police officer or his bond for injuries or death of third persons resulting from operation of motor vehicle by subordinate, 15 A.L.R.3d 1189.
Master's liability for injury to or death of person, or damage to property, resulting from fire allegedly caused by servant's smoking, 20 A.L.R.3d 893.
Liability of one contracting for private police security service for acts of personnel supplied, 38 A.L.R.3d 1332.
Liability to one injured in course of construction, based upon architect's alleged failure to carry out supervisory responsibilities, 59 A.L.R.3d 869.
Liability of hospital, other than mental institution, for suicide of patient, 60 A.L.R.3d 880.
Liability for member of unincorporated association for tortious acts of association's nonmember agent or employee, 62 A.L.R.3d 1165.
When is employer chargeable with negligence in hiring careless, reckless, or incompetent independent contractor, 78 A.L.R.3d 910.
Vicarious liability of private franchisor, 81 A.L.R.3d 764.
Patient tort liability of rest, convalescent, or nursing homes, 83 A.L.R.3d 871.
Principal's liability for punitive damages because of false arrest or imprisonment, or malicious prosecution, by agent or employee, 93 A.L.R.3d 826.
Storekeeper's liability for personal injury to customer caused by independent contractor's negligence in performing alterations or repair work, 96 A.L.R.3d 1213.
Liability of hospital or sanitarium for negligence of physician or surgeon, 51 A.L.R.4th 235.
Modern status of rule imputing motor vehicle driver's negligence to passenger on joint venture theory, 3 A.L.R.5th 1.