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Opinions Released – March 29, 2010

March 29, 2010

This morning, the Supreme Court released opinions in ten cases, two of which are civil.  Summaries of the cases are below, along with links to the opinions and summaries of the decisions.

S09G1508. HICKS v. HEARD

This case involves a personal injury action where a part-time employee was involved in an automobile accident. The employee was returning from school (unrelated to her employment) and was driving a company vehicle at the time of the accident. The injured party sued the company, and the trial court granted summary judgment to the company, finding that although the employee was “on call” and available on an “as needed” basis, she was not within the scope of her employment at the time of the accident. The Court of Appeals (Blackburn, Adams, and Doyle) unanimously affirmed the trial court, finding that there was no jury issue related to whether the employee was within the course and scope of employment, because being “on call” at the time of the accident is not enough.

The Supreme Court unanimously granted certiorari to review this issue:

  1. Has the Court of Appeals given proper weight to an employee’s “on call” status during the final step of the burden shifting framework laid out in Allen Kane’s Major Dodge, Inc. v. Barnes, 243 Ga. 776 (257 SE2d 186) (1979)? Compare Allen Kane’s, supra at 783 with Upshaw v. Roberts Timber Co., 266 Ga. App. 135 (596 SE2d 679) (2004); Hankerson v. Hammett, 285 Ga. App. 610 (647 SE2d 319) (2007); Evans v. Dixie Fasteners, Inc., 162 Ga. App. 74, 75 (290 SE2d 172) (1982).

The Court granted the petition for certiorari on October 19, 2009, and this case was argued on Monday, February 8, 2010.

On March 29, 2010, the Supreme Court affirmed the Court of Appeals in a 4-3 decision (Carley, Hunstein and Benham dissenting).  Writing for the majority, Justice Melton explained that the uncontradicted testimony in the case indicated that the employee was on a purely personal mission, and the mere fact that the employee may have been called to duty sometime in the future does not contradict the testimony.  The majority analyzed the burden-shifting framework in Allen Kane’s Major Dodge and found the Court of Appeals properly affirmed the Company’s motion for summary judgment in this case.  The majority also responded to the dissent by explaining that the “on call” status is circumstantial evidence creating a question of fact about whether the employee was acting in the scope of employment, which the Company rebutted with the employee’s testimony.

Writing in dissent, Justice Carley argues that the majority misapplied Allen Kane’s Major Dodge, finding that the burden-shifting paradigm and the evidence presented was sufficient to overcome the motion for summary judgment.


This case involves many of the same issues with the state’s tort reform statute, challenging the validity of the emergency room provisions.  Similar issues were argued in Gliemmo v. Cousineau in October of last year.

In 2005, Winfred Burt was treated at an emergency room and diagnosed, but died the next night after treatment in the emergency room.  The executor of Burt’s estate sued, claiming the treatment did not meet the standard of care.  The physicians moved to dismiss based on the state’s emergency room statute, which prohibits liability for doctors providing care in emergency rooms unless the care they provide is grossly negligent.

The executor’s counsel also represented the plaintiff in Gliemmo and argues similarly, that the emergency room statute was a “special law” that is preempted by the general laws related to negligence and malpractice claims.  The Court decided Gliemmo on March 15, 2010 and found that the emergency room provisions did not violate the Georgia Constitution.

In a unanimous decision issued on March 29, 2010, the Supreme Court cited Gliemmo as the controlling case, and affirmed the trial court decision against the plaintiffs.

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