Normally, if an employee acting within the scope of his or her employment commits negligence, the employer is considered liable. Under Georgia law, one exception to this rule exists when the employer “lends” the employee to another employer. If the employee then commits negligence while working on loan to the second employer, the first employer is not liable. The Georgia Court of Appeals recently applied this “borrowed-servant” exception in a personal injury lawsuit brought by a woman injured by a police officer.
Garden City v. Herrera
The incident took place in July 2010. The victim was driving her vehicle in Chathan County. A Garden City, Georgia, police officer, was driving his vehicle and struck the victim’s car. The victim suffered serious injuries as a result and sued numerous parties, including the City of Garden City.
The city argued it was not liable for the officer’s actions because at the time of the accident he was on detail to Chatham County. Since 1994, the city and county have jointly participated in a multi-jurisdictional drug task force. Per that agreement, the city “loaned” the officer in this case to the county. At the time of the accident, the officer was, in fact, traveling on orders from his task force supervisor.
The trial court nonetheless denied the city’s motion for summary judgment, holding a jury could still find the city was responsible for the officer’s conduct when the accident occurred. But a three-judge panel of the Georgia Court of Appeals unanimously reversed the trial court and granted summary judgment to the city.
The Georgia Supreme Court previously adopted a three-part test for determining whether the borrowed-servant exception applies. First, the second employer (or special master) must have “complete control and direction of the servant for the occasion”; second, the first employer “had no such control”; and finally, “the special master had the exclusive right to discharge the servant.”
Judge Stephen Louis A. Dillard, writing for the Court of Appeals, said that at the time of the accident it was the county, not the city, who controlled the officer’s employment. There was no dispute the county task force “had complete control and direction” over the officer’s work. The plaintiff’s argument therefore rested on the third test, arguing the city still retained “the right to terminate [the officer’s] employment or remove him from his assignment at any time.” This meant, the plaintiff said, the county did not have exclusive control.
Judge Dillard said that was not the case. Under the agreement between the city and the county, the officer served on the task force “at the pleasure of” the county. And while the officer remained assigned to the task force, the city agreed to “relinquish all command and directive authority” over the officer. Although the city retained the ultimate right to end the officer’s employment or pull him from the task force, only the county could “discharge [the officer] from the specific task he was performing for the [task force] at the time the injury occurred.” Judge Dillard said that was enough to justify dismissing the city’s lawsuit under the borrowed-servant exception.