                              FIFTH DIVISION
                               REESE, P. J.,
                           MARKLE and COLVIN, JJ.

                   NOTICE: Motions for reconsideration must be
                   physically received in our clerk’s office within ten
                   days of the date of decision to be deemed timely filed.
                   Please refer to the Supreme Court of Georgia Judicial
                   Emergency Order of March 14, 2020 for further
                   information at (https://www.gaappeals.us/rules).


                                                                     April 24, 2020




In the Court of Appeals of Georgia
 A20A0452. MANNION & MANNION, INC. v. MENDEZ.

      MARKLE, Judge.

      After Jesus Mendez was injured in an accident while riding his motorcycle, he

sued the driver of the car that struck him, Loren Blunkall, and Blunkall’s employer,

Mannion & Mannion, Inc. (M&M), asserting vicarious liability claims against M&M.

The trial court denied M&M’s motion for summary judgment, and certified the order

for immediate appeal. This Court granted the interlocutory appeal, and this appeal

followed. Because we conclude that there were no genuine issues of material fact

with respect to whether Blunkall was acting in the scope of his employment with

M&M at the time of the accident, the trial court erred in denying summary judgment.

We therefore reverse the trial court’s order.
      In order to prevail on a motion for summary judgment under OCGA
      § 9-11-56, [M&M], as the moving party, must show that there exists no
      genuine issue of material fact, and that the undisputed facts, viewed in
      the light most favorable to the nonmoving party, demand judgment as
      a matter of law. Moreover, on appeal from the denial or grant of
      summary judgment the appellate court is to conduct a de novo review of
      the evidence to determine whether there exists a genuine issue of
      material fact, and whether the undisputed facts, viewed in the light most
      favorable to the nonmoving party, warrant judgment as a matter of law.


(Citation omitted.) In/Ex Sys., Inc. v. Masud, 352 Ga. App. 722, 723 (2) (835 SE2d

799) (2019). Additionally, we look to the

      well-established rules governing circumstantial and direct evidence on
      summary judgment. Circumstantial evidence can be described as
      evidence which does not constitute direct proof with regard to the issue
      of fact or the hypothesis sought to be proven by the evidence; rather,
      circumstantial evidence constitutes proof of other facts consistent with
      the hypothesis claimed. Generally, in passing upon a motion for
      summary judgment, a finding of fact which may be inferred but is not
      demanded by circumstantial evidence has no probative value against
      positive and uncontradicted evidence that no such fact exists. . . .
      Circumstantial evidence . . . may be sufficient for a plaintiff’s claim to
      survive summary judgment, if other theories are shown to be less
      probable. There is no requirement that other theories be conclusively
      excluded.



                                          2
(Citations, punctuation, and emphasis omitted.) Patterson v. Kevon, LLC, 304 Ga.

232, 236 (818 SE2d 575) (2018).

      So viewed, the evidence shows that, in March 2016, Blunkall worked for

M&M as a mechanic. Blunkall was an hourly employee with no set lunch period, and

he often went to lunch with a co-worker who lived across the street from M&M’s lot.

Before he would leave for lunch, he would tell the other employees working in the

office that he and his co-worker were headed to lunch. Although M&M had a time

clock, Blunkall did not always clock in and out for lunch.

      On the day of the accident, other M&M employees heard Blunkall say he was

leaving for lunch. As he left M&M’s lot to go to lunch with his co-worker, and pulled

into the intersection, Blunkall struck Mendez’s motorcycle, knocking Mendez off the

bike and injuring him.

      The car Blunkall was driving belonged to his girlfriend. He was not on the

phone at the time of the accident, although he made a brief phone call to a parts

distributor for M&M about thirty minutes prior to the accident. The part he ordered

was to be delivered to M&M. Blunkall was aware of two prior instances where

someone from M&M called him during his lunch break and asked him to run an

errand on his way back to work. On this day, however, no one had called or otherwise

                                         3
asked him to run an errand for M&M during or on the way back from lunch. Blunkall

was not paid for the hours he missed due to the accident.

      Following the accident, Mendez sued Blunkall for negligence, adding M&M

as a defendant under a theory of vicarious liability. M&M moved for summary

judgment, arguing that it could not be liable because Blunkall was not acting in the

scope of his employment at the time of the accident.1 Following a hearing, the trial

court denied the motion, but certified its order for immediate review. We granted

interlocutory review, and this appeal followed.

      In its sole enumeration of error, M&M argues that the trial court erred in

denying its summary judgment motion because all of the evidence showed that


      1
        Mendez also filed a motion for spoliation sanctions based on M&M’s failure
to preserve Blunkall’s time cards. The trial court denied the motion, and Mendez has
not filed a cross-appeal to challenge that ruling. See OCGA § 5-6-38 (a).
Nevertheless, in his appellate brief, Mendez refers to the spoliation of evidence.
       “The general rule is that an appellee must file a cross-appeal to preserve
enumerations of error concerning adverse rulings. However, a ruling that becomes
material to an enumeration of error urged by an appellant may be considered by the
appellate court without the necessity of a cross-appeal.” (Citations omitted.) Ga.
Society of Plastic Surgeons, Inc. v. Anderson, 257 Ga. 710, 711 (1) (363 SE2d 140)
(1987). Here, Blunkhall’s time cards are not material because the undisputed
testimony was that he was on his lunch break at the time of the accident and was not
conducting any business for M&M. Therefore, the spoliation issue does not affect the
analysis and we need not address it. See Bath v. Intl. Paper Co., 343 Ga. App. 324,
331 (2) (807 SE2d 64) (2017).

                                         4
Blunkall was on his lunch break and not running an errand for M&M at the time of

the accident, and therefore it could not be vicariously liable for Blunkall’s alleged

negligence. We agree.

      It is well-settled that an employer is liable for the negligent or intentional torts

committed by its employees in the scope of employment. OCGA § 51-2-2. As we

have explained,

      [w]hen 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. Where a tort occurs while an employee has stepped aside from
      his employer’s business to do an act entirely disconnected from that
      business, the employer has no liability. As such, Georgia courts have
      consistently held that where an employee takes a break for lunch and is
      not otherwise engaged in his employer’s business, the employee is on a
      purely personal mission.


(Citations and punctuation omitted.) Matheson v. Braden, 310 Ga. App. 585, 586-587

(713 SE2d 723) (2011); see also Gassaway v. Precon Corp., 280 Ga. App. 351, 352-

353 (634 SE2d 153) (2006).

      In other words,

      to hold a master liable for a tort committed by his servant, it must appear
      that at the time of the injury the servant was engaged in the master’s

                                           5
      business and not upon some private and personal matter of his own; that
      is, the injury must have been inflicted in the course of the servant’s
      employment. The test is not that the act of the servant was done during
      the existence of the employment, but whether the servant was at that
      time serving the master.


(Citation and punctuation omitted.) Farzaneh v. Merit Constr. Co. Inc., 309 Ga. App.

637, 639 (710 SE2d 839) (2011). Generally, vicarious liability is a question for the

jury, but a trial court may resolve the issue as a matter of law when the evidence “is

so plain and undisputable.” Id. Moreover, although circumstantial evidence may

preclude summary judgment, “[s]ummary judgment cannot be avoided based on

speculation and conjecture[.]” (Citation omitted.) Cowart v. Widener, 287 Ga. 622,

633 (3) (c) (697 SE2d 779) (2010). And, “[a]lthough the plaintiff is entitled to the

benefit of all reasonable inferences to be drawn from the evidence, such inferences

cannot be based on mere conjecture or possibility or upon evidence which is too

uncertain or speculative.” (Citation and punctuation omitted.) Hoffman v. AC&S Inc.,

248 Ga. App. 608, 610 (2) (548 SE2d 379) (2001).

      Here, Blunkall was not acting within the scope of his employment at the time

of the accident as a matter of law, and thus, M&M was entitled to summary judgment.

Although Mendez contends that Blunkall was on his way to run an errand for M&M,

                                          6
specifically to pick up a part, there is no evidentiary support for that theory; it is mere

speculation. Instead, the evidence showed that Blunkall was driving his own truck on

his way to lunch with a co-worker at the time of the accident. Both Blunkall and the

co-worker testified to this; other M&M employees confirmed that Blunkall

announced he was leaving for lunch; and the parts distributor testified that, although

Blunkall called them to order a part shortly before the accident, the part he ordered

was to be delivered and not picked up.2 See Nelson v. Silver Dollar City, Inc., 249 Ga.

App. 139, 145-146 (4) (547 SE2d 630) (2001) (employer entitled to summary

judgment where employee testified that, at the time of the incident, she was on her

way to lunch, and there was no evidence that she was performing any work-related

errand at the time); see also Yim v. Carr, 349 Ga. App. 892, 898 (1) (b) (827 SE2d

685) (2019) (evidence showed that driver was not acting in the course of her




       2
        Mendez contends that the distributor’s affidavit and accompanying documents
are inadmissible hearsay. Although the documents are not authenticated, the affidavit
is sworn testimony and is admissible at the summary judgment stage. OCGA § 9-11-
56 (c), (e). In her sworn testimony, the witness stated that, based on her personal
knowledge of the account, the part was delivered and not picked up.

                                            7
employment at the time of the accident, and lack of conflicting evidence made

summary judgment on vicarious liability claim proper).3

      The only evidence Mendez offered to counter these facts was that Blunkall

testified he was picking up lunch from a restaurant that was actually closed for lunch;

Blunkall was driving in the direction of the parts distributor; he would clock out for

his lunch break before leaving M&M’s lot, but he did not clock out on the day of the

accident; M&M could call employees on their lunch break and instruct them to run

an errand or return to work; and that M&M employees occasionally ran errands for

the business using their own cars. Mendez contends that these facts are circumstantial

evidence that precludes summary judgment.

      But this evidence is mere conjecture and speculation that cannot defeat

summary judgment in the face of the uncontroverted evidence that Blunkall was on

his lunch break at the time of the accident.4 Hoffman, 248 Ga. App. at 610 (2); Aubrey

      3
        We are not persuaded by Mendez’s attempt to distinguish Yim. Here, as in
Yim, the uncontroverted evidence showed that the driver was not acting in the scope
of his employment at the time of the accident.
      4
        To the extent that Mendez argues that Blunkall’s testimony is contradictory
and must be construed against him under the Prophecy rule, that argument is without
merit. Specifically, Mendez contends that Blunkall’s testimony that he clocked out
when leaving for lunch conflicts with his testimony that he was on his lunch break
because he had not clocked out on the day of the accident. Even assuming that the

                                          8
Silvey Enterprises v. Bohannon, 182 Ga. App. 738, 739 (356 SE2d 693) (1987)

(despite evidence that the employee involved in the wreck often used his lunch hour

to run business errands, because the evidence showed that at the time of the wreck he

was engaged in the purely personal mission of meeting his wife for lunch, the

employer was entitled to summary judgment); see also Charles v. Glover, 258 Ga.

App. 710, 711 (574 SE2d 910) (2002) (“An inference cannot be based on evidence

which is too uncertain or speculative or which raises merely a conjecture or

possibility. A finding of fact which may be inferred but is not demanded by

circumstantial evidence has no probative value against positive and uncontradicted

evidence that no such fact exists.”) (citation and punctuation omitted).

      The “positive and uncontradicted evidence” here was that Blunkall was on his

lunch break at the time of the accident. Patterson, 304 Ga. at 236. Under the long-

standing rule that an employer cannot be held vicariously liable for acts of its

employees that occur during a purely personal mission, M&M was entitled to




rule applied to Blunkall’s testimony where he was not the respondent to summary
judgment, these are not contradictory statements under the Prophecy rule. Cf. State
Farm Mut. Automobile Ins. Co. v. Fabrizio, 344 Ga. App. 264, 265-266 (809 SE2d
496) (2018). Blunkall testified that he was not consistent in clocking in and out for
lunch.

                                         9
summary judgment. Matheson, 310 Ga. App. at 586-587. Accordingly, the trial court

erred in denying M&M’s motion for summary judgment, and we reverse.

      Judgment reversed. Reese, P. J., and Colvin, J., concur.




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