                              FIRST DIVISION
                              BARNES, P. J.,
                          MERCIER and BROWN, 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.
                               http://www.gaappeals.us/rules


                                                                   October 17, 2019




In the Court of Appeals of Georgia
 A19A1176. CENTURION INDUSTRIES, INC. v. NAVILLE-
     SAEGER et al.
 A19A1177. CENTURION INDUSTRIES, INC. v. SMITHWICK.

      MERCIER, Judge.

      While on unpaid leave from work, Jeremy Carter drove from a work site in

Arabi, Louisiana to Valdosta, Georgia. As Carter was driving in Lowndes County,

Georgia, he caused a motor vehicle collision when he hit a vehicle containing Kyle

Naville and Logan Shelly. Tragically, both Naville and Shelly died as a result of the

collision. The parents of Naville brought an action against Centurion Industries, Inc.

(Carter’s employer) and Carter, and the mother of Shelly filed a separate action

against Carter and Centurion.

      Centurion filed motions for summary judgment in both lawsuits, arguing that

Carter was not acting in the course and scope of his employment when the collision
occurred, and therefore Centurion could not be held liable under theories of

respondeat superior or negligent hiring and retention. The trial court denied

Centurion’s motions in the two cases in a single order. We granted Centurion’s

applications for interlocutory appeals1 to review the trial court’s order, and for the

following reasons, we reverse.

      “On appeal from a trial court’s grant [or denial] of summary judgment, our

review of the record is de novo, and we construe the facts and all inferences drawn

from them in the light most favorable to the nonmoving party.” Farzaneh v. Merit

Constr., 309 Ga. App. 637 (710 SE2d 839) (2011) (citation omitted).

      In 2015, Carter lived in Valdosta and worked as a millwright for A-Lert

Construction Services, a division of Centurion, out of its Valdosta, Georgia office.2

Amongst other services, Centurion performed “shutdown work,” where a factory

would shut down for multiple weeks and Centurion would perform maintenance work

at the factory. Carter was assigned to a “road crew,” where he and other Centurion

employees traveled to out-of-town job sites.



      1
          Carter is not a party to these appeals.
      2
       For the purpose of clarity, we will refer to A-Lert and Centurion collectively
as “Centurion.”

                                             2
      In 2014, Centurion entered into a contract to perform construction work at a

refinery in Arabi, Louisiana. Carter was assigned to work at the Arabi job site, along

with four other Valdosta-based Centurion employees and a supervisor. He received

hourly pay, mileage reimbursement for his travel to the Arabi job site from

Centurion’s office in Valdosta and a per diem payment for each day he worked at the

Arabi job site. Due to the distance between the Arabi job site and Centurion’s

Valdosta office, the Centurion employees secured temporary housing near the job site

and were expected to remain near the job site for the duration of the assignment.

      Prior to arriving in Arabi, Carter requested and received permission to take

unpaid leave from work for February 25, 2015 through February 27, 2015. Carter

wrote on the request form that he needed the leave for “[c]ourt.” Centurion did not

request that Carter perform any tasks during the leave period.

      Carter drove from Valdosta to Arabi in his own vehicle and began working at

the site on February 2, 2015. Some of the other Centurion employees carpooled to the

Arabi job site. At the time, Carter did not have a valid driver’s license, and due to

requirements issued by the refinery he was unable to drive a vehicle onto the refinery

property in Arabi. As a result, he rode to the site with another Centurion employee.



                                          3
      While he was in Arabi, Carter told his field supervisor that he had to take leave

to return to Valdosta “because of a DUI refusal in North Carolina.” Carter did not

receive any compensation, including per diem, travel allowances, or mileage

reimbursement, while he was on leave. On February 25, 2015, the first day of Carter’s

unpaid leave, Carter drove his personal vehicle from Arabi to Valdosta, where he

attempted to pass a school bus and hit the oncoming vehicle in which Naville and

Shelly rode. After the collision, Carter’s blood tested positive for alcohol content of

.187 grams per 100 milliliters. Centurion did not terminate Carter’s employment

because he “hadn’t been to trial,” but it removed him from the road team and required

him to work out of the Valdosta office. Carter eventually pled guilty to two counts of

vehicular homicide in connection with the collision.

      Centurion appeals the trial court’s denial of its motions summary judgment,

arguing that Carter was not acting within the scope of his employment at the time of

the collision, and therefore the Plaintiffs’ respondeat superior claims fails; and that

the trial court erred by denying its motions on the Plaintiffs’ negligent hiring and

retention claims because Carter’s trip to Valdosta was wholly unrelated to his

employment.



                                          4
      1. Every master 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.” OCGA § 51-2-2. “When 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.” Hicks v. Heard, 286 Ga. 864, 865

(692 SE2d 360) (2010) (citation omitted). “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.” Hargett’s Telephone Contractors v. McKeehan, 228 Ga.

App. 168, 169 (491 SE2d 391) (1997) (citation, emphasis and punctuation omitted).

      While a jury frequently must resolve whether an employee acted in
      furtherance of his master’s business and within the scope of his
      employment at the time an injury was inflicted, the evidence in some
      cases is so plain and undisputable that the court may resolve a
      respondeat superior claim as a matter of law.


Farzaneh, supra at 639 (citation omitted). “[S]ummary judgment for the master is

appropriate when the evidence shows that the servant was not engaged in furtherance

of his master’s business but was on a private enterprise of his own.” Lucas v.




                                           5
Beckman Coulter, Inc., 348 Ga. App. 505, 508 (2) (823 SE2d 826) (2019) (citation

and punctuation omitted).

      There is a longstanding general rule that an employee is engaged in a purely

personal matter while commuting to or from work. See Farzaneh, supra; Patterson

v. Southeastern Newspapers, 243 Ga. App. 241, 242 (1) (533 SE2d 119) (2000). At

the time of the collision, Carter was driving to Valdosta from the Arabi job site on the

first day of his approved unpaid leave from work. Moreover, he was driving his own

vehicle, so no presumption arises that he was acting within the scope of his

employment. See Gassaway v. Precon Corp., 280 Ga. App. 351, 355 (634 SE2d 153)

(2006) (“Under Georgia law, when an employee is involved in a collision while

operating his employer’s vehicle, a presumption arises that he is acting within the

scope of his employment.”) (citation omitted). Tellingly, Carter testified that he was

not planning on stopping at Centurion’s office in Valdosta on the date of the collision

because he did not “see a reason why I would even have needed to stop by there being

that I was, you know, off work.” Carter also testified that he had no Centurion

property in his vehicle at the time of the collision. As Carter was on authorized

unpaid leave from work in order to tend to a personal matter and had driven back to

Valdosta in his own vehicle, he was presumed to be engaged in a personal matter at

                                           6
the time of the collision. See Farzaneh, supra; compare Intl. Bus. Machine v. Bozardt,

156 Ga. App. 794, 798-799 (275 SE2d 376) (1980) (a question of fact remained as

to whether the employee was in the scope of employment when he caused a collision

while driving to dinner in a rental vehicle paid for by his employer during an out-of-

town work conference; this Court looked to workers’ compensation law for the

principle that while an employee traveling for work purposes is “lodging in a hotel

or preparing to eat, or while going to or returning from a meal, he is performing an

act incident to his employment, unless he steps aside from his employment for

personal reasons”).

      While, as a general rule, an employee is deemed to act only for his own

purposes while commuting to or from work, an exception exists where an “employee

undertakes a special mission at the direction of the employer. The special mission

must be made at the employer’s request or direction.” Gassaway, supra at 353

(citations and punctuation omitted). Under the “special mission” exception,

      where the employee, before or after customary working hours, is on his
      way home after performing, or on the way from his home to perform,
      some special service or errand or the discharge of some duty incidental
      to the nature of his employment in the interest of, or under direction of,
      his employer, and an injury arises en route from the home to the place
      where the work is performed, or from the place of performance of the

                                          7
      work to the home, such injury is considered as arising out of and in the
      course of the employment.


Id. (citation and punctuation omitted).

      Here, as in Gassaway, supra, the evidence demonstrates that Carter requested

and received time off for a personal matter. In Gassaway, the employee requested an

extended lunch period to find more suitable temporary housing while staying away

from his home for work. Id. at 352. This Court affirmed summary judgment for the

employer, holding that the employee was not acting in the course and scope of his

employment when he caused a collision as he turned into the job site after running his

personal errand. Id. at 352. In the present matter, Carter planned to perform his

personal errand during his three days of unpaid leave. While the errand of attending

court for the purpose of attempting to have his driver’s license reinstated might have

benefitted Centurion if Carter had regained his license, Carter was not obligated by

Centurion to perform the errand. See id. at 354. Having a valid driver’s license was

not a requirement of Carter’s job, and Carter’s employment would not have been

imperiled had he not obtained his license. See id. The primary beneficiary of Carter

taking leave and attempting to regain his drivers’s license was Carter himself. See id.




                                          8
      The Plaintiffs argue that the very act of Carter working at the Arabi site was a

special mission, so the collision, which occurred as Carter returned to Valdosta from

the Arabi site, arose out of and in the course of his employment. However, the

Plaintiffs admit that Carter was a member of Centurion’s road crew, “which travel[ed]

to various states” to perform its work. “[T]he special mission exception requires that

the errand or mission itself be a special or uncustomary one, made at the employer’s

request or direction.” Farzaneh, supra at 643 (citations and punctuation omitted).

Here, Carter’s job was to work as a millwright on the Centurion road crew, wherein

he traveled to different job sites to perform work until it was completed. Carter

working at the Arabi job site was not “special, or uncustomary.” See id. (affirming

summary judgment to employer in a case involving a construction employee who

struck and injured a pedestrian while driving his own vehicle to an assigned job site

from his home; holding that “in commuting to an assigned job site as he did every day

of the work week, [the employee] was not on an errand or mission that could be

characterized as special or uncustomary”); Hargett’s, supra at 171 (reversing denial

of employer’s motion for summary judgment because employee’s conduct in traveling

to multiple job sites, as his job normally required, could “in no way be considered a

‘special mission’ or errand done at the direction of his employer”) (citation omitted);

                                          9
Banks v. AJC Intl., 284 Ga. App. 22, 24-25 (2) (643 SE2d 780) (2007); Mastec North

America v. Sandford, 330 Ga. App. 250, 256-257 (1) (765 SE2d 420) (2014).

      The Plaintiffs also point to Carter’s testimony that his wife told him that on the

day of the collision he had told her that he planned to go to a store to purchase new

work boots before heading home. “An employee cannot unilaterally determine to

undertake a special mission.” Wood v. B & S Enterprises, 314 Ga. App. 128, 131 (1)

(723 SE2d 443) (2012). The directive to buy new work boots must have come from

the employer, and there was no evidence that Carter had undertaken a special mission

at Centurion’s request at the time of the collision. See id. Furthermore, the errand of

obtaining work boots “could have been accomplished at any time. Accordingly, the

errand[] cannot be considered a ‘special mission.’” Gassaway, supra at 354.

      For these reasons, the trial court erred in denying Centurion’s motions for

summary judgment regarding the Plaintiffs’ claims based on the doctrine of

respondeat superior. Although the underlying facts of this case are tragic, the

uncontroverted evidence shows that at the time of the collision, Carter was engaged

in the purely personal matter of driving to Valdosta while on unpaid leave from work

and, therefore, was not acting in the course and scope of his employment. It follows

that, as a matter of law, Centurion cannot be held vicariously liable for the Plaintiffs’

                                           10
deaths under the doctrine of respondeat superior. See generally Farzaneh, supra at

643-644.

      2. Centurion argues that Carter’s trip to Valdosta was “wholly unrelated” to his

employment, and therefore the trial court erred by denying its motions for summary

judgment on the Plaintiffs’ negligent hiring and retention claims. Unquestionably,

prior to the collision Carter had a history of violating driving laws, including refusing

to submit to driving under the influence testing, driving with an open container of

alcohol, speeding, and driving with a suspended driver’s license. There is also no

dispute that Centurion had actual knowledge of at least some of Carter’s driving

violations.

      “[A] defendant employer has a duty to exercise ordinary care not to hire or

retain an employee the employer knew or should have known posed a risk of harm

to others where it is reasonably foreseeable from the employee’s tendencies or

propensities that the employee could cause the type of harm sustained by the

plaintiff.” Munroe v. Universal Health Svcs., 277 Ga. 861, 863 (1) (596 SE2d 604)

(2004) (citations and punctuation omitted). However,

      [f]or an employer to be liable for an automobile accident under the
      theory of negligent hiring and retention where, as here, the allegation is


                                           11
      that the employee had a bad driving record and where the injured driver
      was merely a member of the general public on the public highway, the
      accident could not have occurred while the employee was simply
      commuting to work but had to occur while the employee was engaged
      in the employer’s business.


CGL Facility Mgmt. v. Wiley, 328 Ga. App. 727, 731 (2) (a) (760 SE2d 251) (2014)

(citation and punctuation omitted). Because Carter was not engaged in Centurion’s

business when he caused the collision in Lowndes County, Centurion was also

entitled to summary judgment on the Plaintiffs’ claims that were based on the theory

of negligent hiring and retention. See id.; Dougherty Equip. v. Roper, 327 Ga. App.

434, 438 (1) (b) (757 SE2d 885) (2014).

      Judgment reversed. Barnes, P. J., and Brown, J., concur.




                                          12
