2021 WL 3523559
NOTICE: THIS OPINION HAS NOT BEEN RELEASED FOR PUBLICATION IN THE PERMANENT LAW REPORTS. UNTIL RELEASED, IT IS SUBJECT TO REVISION OR WITHDRAWAL.
Court of Appeal of Louisiana, Second Circuit.
Reginald MARTIN Plaintiff-Appellant
v.
Rodney THOMAS, Greer Logging, LLC and National Liability and Fire Insurance Company Defendants-Appellees
No. 54,009-CA
|
Judgment rendered August 11, 2021.
Appealed from the First Judicial District Court for the Parish of Caddo, Louisiana, Trial Court No. 599,802, Honorable Craig O. Marcotte, Judge
Attorneys and Law Firms
SARTIN LAW FIRM, LLC By: J. Cole Sartin Counsel for Appellant
CASTEN & PEARCE, APLC By: D. Brennan Hussey Counsel for Appellees
Before PITMAN, STONE, and THOMPSON, JJ.
Opinion

PITMAN, J.

*1 **1 Plaintiff-Appellant Reginald Martin appeals the granting of a motion for partial summary judgment filed by Defendants-Appellees, Rodney Thomas, Greer Logging, LLC (“Greer Logging”), and National Liability and Fire Insurance Company (“National”), which dismissed Plaintiff’s claims of independent negligence against Greer Logging. For the following reasons, we affirm the judgment of the trial court.

FACTS
On December 17, 2016, Plaintiff was driving his Honda Accord on South Pardue Street in Vivian, Louisiana, when he was involved in an accident with a logging truck driven by Thomas and owned by Greer Logging. Thomas was an employee of Greer Logging, which is insured by National. The accident occurred at 8:30 p.m., when the road was wet and it was already dark. Thomas was backing the tractor trailer across South Pardue Street in an attempt to park it in his driveway. He was driving the tractor trailer to his home with the permission of his employer, Greer Logging, although he was off work at the time of the accident and was not carrying a load in the trailer.

Plaintiff sustained serious injuries in the accident, including multiple broken ribs, a fractured sternum, an open fracture of the tibial plateau, fracture of the left patella and open wounds of the left leg, knee and ankle. In April 2017, he filed suit against Defendants, alleging general negligence against Thomas as an employee of Greer Logging and imputing fault to Greer Logging. Defendants answered and admitted that Thomas was Greer Logging’s employee and was acting in the course and scope of his employment at the time of the accident.

**2 In July 2020, Plaintiff filed a motion to supplement and amend his petition for damages by adding two paragraphs alleging Greer Logging’s independent negligence. He claimed that this amendment related back to the original petition filed in 2017.

The first paragraph alleged that Greer Logging was negligent for its failure to do a thorough background check on Thomas; to check employment and personal references; to check employment history and attempt to speak with former supervisors; to check driving records and history prior to hiring him; to establish and enforce proper employee screening; in hiring him despite his incompetent driving record; to train him about proper driving; to train him regarding backing the tractor trailer; to train him regarding the proper use of spotters; to train him how to be attentive and do what he should have done or see what he should have seen in order to avoid the accident; to supervise him; for negligent entrustment of the vehicle despite the knowledge that he was an incompetent driver; and for negligent entrustment of the vehicle to him despite actual or constructive knowledge that he would drive the tractor trailer in a negligent, reckless or careless manner, while knowing that he was likely to use the vehicle in a manner involving an unreasonable risk of physical harm to other drivers.

**3 The second paragraph in the amended petition alleged that:
*2 Defendant GREER LOGGING, LLC owed a duty to formulate, institute and implement hiring, supervision, training and retention procedures which could have and should have prevented the acts and omissions complained of herein above. The scope of these duties encompassed the risk of the particular harm sustained by Plaintiff. The breach of these duties by GREER LOGGING, LLC caused Plaintiff’s harms, which resulted in damages as set forth in the Original Petition for Damages. This negligence was jointly a cause of Plaintiff’s injuries and resulting damages.

Because Defendants had already admitted in their answer to the petition that Thomas was acting in the course and scope of his employment and was driving the tractor trailer owned by Greer Logging, his employer, at the time of the accident, they filed a motion for partial summary judgment seeking dismissal of the claims against them as alleged in the amended petition filed in 2020.

A hearing was held on October 5, 2020, and the trial court granted the motion for partial summary judgment and dismissed with prejudice Plaintiff’s claims alleged in the amended petition. The claims and causes of action against Defendants from the original petition were reserved. The trial court decreed the judgment to constitute a final judgment pursuant to La. C.C.P. art. 1915(B) and certified it for immediate appeal.

Plaintiff filed this devolutive appeal seeking review of the granting of the motion for partial summary judgment.

**4 DISCUSSION
Plaintiff argues that the trial court erred in granting the motion for partial summary judgment and dismissing his claims against Greer Logging for its independent negligence because he has the right to present evidence of the fault of all parties at trial. He cites La. C.C. art. 2323, which states that the fault of “all persons” causing or contributing to the plaintiff’s loss “shall” be determined. Plaintiff argues that it is mandatory that the percentage of fault be determined of all persons contributing to an injury, whether those persons are unidentified nonparties, statutorily immune employers or others.

Plaintiff also argues that the law allows him to assert any cause of action against these Defendants who have caused him harm, citing La. C.C. art. 2315(A). He asserts that Louisiana law recognizes negligent hiring, supervision and training as “stand-alone” claims of negligence, separate and apart from the theory of an employer’s vicarious liability.

Plaintiff further argues that Defendants have failed to provide a “binding stipulation” of vicarious liability for the employee. He contends that Defendants’ answer denied his allegations of the facts of the case and indicated that his negligence would be a bar to his recovery if he is found to be 25 percent or more at fault in the accident. For these **5 reasons, Plaintiff argues that he is entitled to pursue any claims of fault against Greer Logging.

Plaintiff asserts that public policy would be furthered by allowing the jury’s assessment of Greer Logging’s independent fault. The purpose of tort law includes deterrence of undesirable conduct and to make the victim whole; and if Plaintiff is allowed to assert independent causes of action against Greer Logging, future wrongdoing by employers with regard to negligent hiring would be curtailed.

Defendants assert that the trial court correctly granted the motion for partial summary judgment and dismissed the individual claims against Greer Logging while maintaining the remainder of Plaintiff’s suit against them. They argue that an employer is answerable for the damage occasioned by its employee in the exercise of the functions in which the worker is employed. An employer’s vicarious liability extends only to the employee’s tortious conduct that is within the course and scope of that employment.

*3 Defendants also argue that they admitted in their answer that Thomas was in the course and scope of his employment with Greer Logging at the time of the accident, and the answer to the petition in which this fact is admitted constitutes a judicial confession under La. C.C. art. 1853. Defendants contend that their answers, while denying **6 liability for the accident, have the effect of dispensing with any evidence pertaining to course and scope issues and result in the withdrawal of any dispute regarding Greer Logging’s vicarious liability for the remainder of the case.

Defendants further argue that as a result of this judicial confession, there is no disputed issue of material fact that at the time of the accident, Thomas was Greer Logging’s employee; and his fault, if found, will be attributable to Greer Logging. They also point out that as a result of this judicial confession, Plaintiff will not have to prove any independent liability of Greer Logging because it will already be deemed vicariously liable if Plaintiff proves his damages were Thomas’s fault. They contend that Plaintiff cannot simultaneously maintain a claim for vicarious liability and an independent claim for damages since a direct negligence claim against an employer is subsumed in a direct negligence claim against an employee when the course and scope are admitted. The rationale is that if Thomas is found to be at fault, Greer Logging will be vicariously liable for his negligence; however, if Thomas is not found to be at fault, then Greer Logging cannot be found to be at fault because he was working for them and they have no liability to Plaintiff for any of the alleged acts of independent negligence.

Motion for Partial Summary Judgment
**7 A motion for summary judgment is a procedural device used when there is no genuine issue of material fact for all or part of the relief prayed for by a litigant. Saldana v. Larue Trucking, LLC, 52,589 (La. App. 2 Cir. 4/10/19), 268 So. 3d 430, writ denied, 19-00994 (La. 10/1/19), 280 So. 3d 159, citing Schultz v. Guoth, 10-0343 (La. 1/19/11), 57 So. 3d 1002. The procedure is favored and shall be construed to secure the just, speedy and inexpensive determination of actions. La. C.C.P. art. 966(A)(2). An appellate court reviews a trial court’s granting of summary judgment de novo under the same criteria that govern the trial court’s consideration of whether summary judgment is appropriate, i.e., whether there is any genuine issue of material fact and whether the movant is entitled to judgment as a matter of law. McDonald v. PNK (Bossier City), LLC, 53,561 (La. App. 2 Cir. 9/23/20), 304 So. 3d 143, writ denied, 20-01416 (La. 2/9/21), 310 So. 3d 179.

La. C.C.P. art. 966(D)(1) states:
The burden of proof rests with the mover. Nevertheless, if the mover will not bear the burden of proof at trial on the issue that is before the court on the motion for summary judgment, the mover’s burden on the motion does not require him to negate all essential elements of the adverse party’s claim, action, or defense, but rather to point out to the court the absence of factual support for one or more elements essential to the adverse party’s claim, action, or defense. The burden is on the adverse party to produce factual support sufficient to establish the existence of a genuine issue of material fact or **8 that the mover is not entitled to judgment as a matter of law.

The issue presented in this case is one of law, not fact, and is whether Plaintiff can assert allegations of individual negligence against Greer Logging once it has admitted that its employee was in the course and scope of its employment at the time of the accident. Greer Logging would not have the burden of proof at trial on the issue before the court on the motion for partial summary judgment; therefore, it only has to point out to the court the absence of factual support for one or more elements essential to the adverse party’s claim or action.

Defendants’ Answer as Judicial Confession
*4 Plaintiff has argued that Defendants failed to stipulate to their vicarious liability for the employee, Thomas. Paragraph 19 of the original petition alleges both his employee status and that he was in the course and scope of his employment at the time of the accident. Defendants’ answer to Paragraph 19 admits those allegations. Plaintiff also argued that in the answer to the amended petition, Defendants denied the allegations of independent fault and also asserted defenses to the action, including asserting that Plaintiff may have been intoxicated at the time of the accident.

**9 A judicial confession is a declaration made by a party in a judicial proceeding. La. C.C. art. 1853. That confession constitutes full proof against the party who made it. A judicial admission or confession is a party’s express acknowledgment of the correctness of the fact or the act charged against him by his adversary. Collins v. Hill, 52,457 (La. App. 2 Cir. 2/27/19), 265 So. 3d 1202. Such a confession is designed to dispense with evidence and has the effect of withdrawing the subject matter of the confession from issue. Id. A declaration made by a party’s attorney or mandatary has the same effect as one made by the party himself. Id.

An admission by a party in a pleading also constitutes a judicial confession and is full proof against the party making it. C.T. Traina Inc. v. Sunshine Plaza, Inc., 03-1003 (La. 12/3/03), 861 So. 2d 156; Coleman v. Querbes Co. No. 1, 51,159 (La. App. 2 Cir. 2/15/17), 218 So. 3d 665.

Defendants’ answer constitutes a judicial admission of Thomas’s status as Greer Logging’s employee and an admission that he was in the course and scope of his employment, thus making Greer Logging vicariously liable for his fault in the accident.

Simultaneous Actions for Vicarious Liability and Individual Employer Liability
Although the issue in this case has not previously been addressed by this court, it has been addressed by other **10 circuit courts in Louisiana when raised by appellants through other procedural devices.

In Libersat v. J & K Trucking, Inc., 00-00192 (La. App. 3 Cir. 10/11/00), 772 So. 2d 173, writ denied, 01-0458 (La. 4/12/01), 789 So. 2d 598, appellants argued that the trial court erred in failing to instruct the jury regarding the employer’s duty in hiring and training the employee driver. The appellants alleged that the employer was negligent because it placed the employee on the road without the proper training and skill to discharge the duty owed by a professional truck driver. They asserted that the trial court refused to use their instructions because the trial court equated respondeat superior to all possible theories of recovery. The court found that the trial court’s instructions regarding the employer’s possible liability were an accurate reflection of the law. As the employer, it would be liable for the employee’s actions under the theory of respondeat superior. If the employee breached a duty to the appellants, then the employer would be liable under the theory of respondeat superior. If the employee did not breach a duty to the appellants, then no degree of negligence on the part of the employer in hiring would make the employer liable to the appellants.

In Landry v. Nat’l Union Fire Ins. Co. of Pittsburg, 19-337 (La. App. 5 Cir. 12/30/19), 289 So. 3d 177, writ denied **11 sub nom. Landry v. Nat’l Union Fire Ins. Co. of Pittsburgh, PA, 20-00188 (La. 5/1/20), 295 So. 3d 945, the appellant contended that the trial court erred in concluding that she could not maintain causes of action against the employer for negligent hiring, training, supervision and entrustment and claimed that under La. C.C. art. 2323, the jury should consider the fault of all parties, including the employer. The court determined that because the employer had stipulated that the employee was in the course and scope of his employment at the time of the accident, the allegations of individual liability against the employer were properly dismissed when the motion for partial summary judgment was granted.

*5 In Elee v. White, 19-1633 (La. App. 1 Cir. 7/24/20), ––– So. 3d ––––, writ denied, 20-01048 (La. 11/10/20), 303 So. 3d 1038, the trial court granted a motion for partial summary judgment and dismissed the plaintiff’s claims of individual liability of the employer. The plaintiff filed an appeal from the judgment, but because the trial court had not certified the judgment as a final and appealable judgment, the court of appeal converted the appeal to a writ application. It found that the summary dismissal of Elee’s direct negligence claim would not impinge on the fact finder’s role to determine facts and assess fault. The court opined that Elee’s direct negligence claim against the employer was essentially **12 subsumed in the direct negligence claim against the employee, and an employee driver’s negligence may include his employer’s negligence for lapses in hiring, training and supervision. Thus, the writ was denied and the judgment was affirmed.

Greer Logging has judicially admitted that Thomas was its employee and was in the course and scope of his employment when the accident occurred. If Thomas is found to be negligent and at fault in the accident, Greer Logging’s alleged negligence in Thomas’s hiring, training and supervision will be subsumed by Thomas’s negligence and fault, and the employer will be held vicariously liable for the employee’s fault. Contrarily, should Thomas not be found negligent and at fault in the accident, then no amount of negligence on Greer Logging’s part for those acts could be the cause-in-fact or legal cause of the accident that occurred.

For the foregoing reasons, this assignment of error is without merit.

CONCLUSION
After a de novo review of the record and for the foregoing reasons, we affirm the trial court’s judgment granting the motion for partial summary judgment and dismissing Plaintiff-Appellant Reginald Martin’s claims of independent negligence and fault of Defendant-Appellee **13 Greer Logging, LLC, found in the amended petition. Greer Logging, LLC, remains vicariously liable for the fault of its employee, Rodney Thomas, if any is found. Costs of appeal are assessed to Plaintiff-Appellant Reginald Martin.

AFFIRMED.

All Citations
— So.3d —-, 2021 WL 3523559, 54,009 (La.App. 2 Cir. 8/11/21)

2021 WL 3578045

Court of Appeals of Georgia.
BLAKE
v.
TRIBE EXPRESS, INC. et al.
A21A0672
|
August 13, 2021
Attorneys and Law Firms
Minerva Alexandra Steele, for Appellant.
James Douglas Parks, Dahlonega, Austin Lewis Perry, Toccoa, Michael David Hostetter, Atlanta, for Appellee.
Opinion

Phipps, Senior Appellate Judge.

*1 Tairan Blake sustained injuries in a multi-vehicle collision that he alleges resulted from the negligence of defendants Tribe Express, Inc. (“Tribe”), and Marquentin Prosser, its employee, who ran on foot into traffic on I-75 North in Henry County, setting off a chain of events that culminated in the collision. The trial court found that Prosser was acting outside the scope of his employment with Tribe at the time of the collision and granted summary judgment to Tribe. Blake appeals that ruling, contending that a genuine issue of material fact remains in dispute. We disagree and affirm.

Summary judgment is appropriate where no genuine issue of material fact remains and the moving party is entitled to judgment as a matter of law. See OCGA § 9-11-56 (c). This Court reviews a trial court’s summary judgment ruling de novo, construing the evidence and all reasonable inferences in favor of the nonmoving party. See Advanced Disposal Servs. Atlanta v. Marczak, 359 Ga. App. 316, 316, 857 S.E.2d 494 (2021).

The material facts of this case are largely undisputed. Viewed in the light most favorable to Blake, the non-movant, the record shows that Prosser was employed by Tribe as a truck driver, and, on November 1, 2017, he made a delivery on Tribe’s behalf to Montgomery, Alabama while driving a Tribe-owned tractor-trailer. Prosser then drove Tribe’s tractor-trailer to Gordon, Georgia to visit his mother. The trailer was empty. Upon making contact with Prosser sometime between November 1 and November 3, 2017, Tribe informed Prosser that his employment was terminated and instructed him to return its tractor-trailer to one of its two locations in Gainesville, Georgia.

On November 3, 2017, Prosser drove from Gordon to within 200 yards of Tribe’s Gainesville headquarters. However, rather than proceeding to Tribe’s headquarters, Prosser turned onto I-985 South and began driving away from Gainesville. Prosser continued onto I-85 South through Atlanta and merged onto I-75 South as he left the city. In Henry County, Prosser navigated the tractor-trailer onto the express lanes, driving through security barriers which were lowered to prevent access to the express lanes. When Prosser drove through the barriers, debris flew over the median wall and damaged a passing vehicle.1

Prosser drove south in the express lanes for approximately two miles until he struck the side railing and brought the tractor-trailer to a stop near exit 224. He then exited the tractor-trailer, ran on foot across the express lanes, jumped a barrier, and ran into traffic on I-75 North. When Prosser darted into traffic, a sport utility vehicle (“SUV”) swerved to avoid him and, in doing so, collided with Blake’s tractor-trailer. Prosser was struck and injured by a third vehicle. The police report prepared following the incident indicated that, before being transported to the hospital, Prosser had “random fits of rage” and “continually tried to get up, and walk into traffic.” The report also noted Prosser’s dilated pupils, rapid pulse, and elevated blood pressure. While at the hospital, Prosser did not respond to questions about what led to the collision or what substances he might have ingested. As a result of the incident, Prosser was issued citations for multiple offenses, including driving under the influence.

*2 On September 27, 2018, a Henry County grand jury indicted Prosser for theft by taking of Tribe’s tractor-trailer, driving under the influence of a drug, driving under the influence of cocaine, hit and run, violation of duty upon striking a fixed object, and failure to maintain lane. On June 3, 2019, Prosser pleaded guilty to theft by taking, driving under the influence of a drug, hit and run, and violation of duty upon striking a fixed object. The remaining counts of driving under the influence of cocaine and failure to maintain lane were nolle prossed.

Blake filed this lawsuit in August 2018, asserting claims against Tribe for Prosser’s negligence, as well as for Tribe’s negligent hiring, training, and supervision of Prosser.2 During his deposition, which took place less than a week before he pleaded guilty to the charges brought against him, Prosser testified that, on the day of the collision, he was returning the tractor-trailer to Tribe in Gainesville after being terminated, as Tribe had instructed him. Prosser stated that, upon arriving in Gainesville, he made a wrong turn and returned to the interstate to reroute. According to Prosser, “I realized I had been going to a point where I missed my turn and had to recalculate and reroute the truck to get back on the interstate to get back off on my exit again to go in the right direction.” Prosser elaborated, “I made a wrong turn and had to reroute the truck in order to get back to where I was trying to get to of dropping the tractor and trailer off. That’s how I ended up back on the interstate thinking that I was going in my right direction[.]” When asked about the events leading up to the collision, what substances he might have ingested, and why he continued driving after hitting the barriers restricting access to the express lanes, Prosser invoked his Fifth Amendment right against self-incrimination.

Tribe thereafter moved for summary judgment, arguing that Blake’s negligence claim against Tribe, which was premised on respondeat superior, was not valid because Prosser was acting outside the scope of his employment.3 Specifically, Tribe argued that Prosser was operating the tractor-trailer at a place and for a purpose unauthorized by Tribe and that Prosser’s guilty plea to theft by taking was “direct, irrefutable evidence of his admission that he did not have authority to be in Defendant Tribe’s tractor-trailer at the time of the collision.” In support of its motion, Tribe submitted, among other things, Prosser’s indictment and the final judgment entered upon his guilty pleas. In response, Blake argued, as he does on appeal, that Prosser’s testimony regarding missing his turn and returning to the interstate to reroute the tractor-trailer conflicted with his guilty plea to theft by taking and thus created a genuine issue of material fact as to whether he was acting in the course and scope of his employment with Tribe at the time of the collision. Blake did not submit any evidence supporting his response in opposition to Tribe’s motion.

*3 The trial court granted summary judgment to Tribe, finding that Prosser was acting outside the scope of his employment with Tribe at the time of the collision. In doing so, the trial court applied the burden-shifting framework urged by Blake, requiring Tribe to rebut the presumption that Prosser was acting in the scope of his employment, which arose because he was driving a Tribe-owned vehicle, with “clear, positive, and uncontradicted” evidence that he was acting outside the scope of his employment at the time of the collision.4 The trial court found that Tribe met its burden by offering evidence that Prosser drove eighty miles away from his intended destination and pleaded guilty to theft by taking of Tribe’s tractor-trailer. The trial court rejected Blake’s argument that Prosser’s testimony about making a wrong turn created a factual dispute precluding summary judgment, reasoning that the testimony and Prosser’s subsequent guilty plea were not in direct conflict. The trial court explained its findings as follows:
Giving [Blake] the benefit of all reasonable inferences and finding that Defendant Prosser got lost in Gainesville and got back on I-985 traveling south to recalibrate his GPS, Defendant Prosser still knew Tribe’s truck needed to be returned to Gainesville. It is contrary to logic or reason that a professional driver would be less than a mile from his destination and then drive 80 miles away from it without making a conscious decision to do so.
Although the trial court imposed a higher burden of proof on Tribe than was called for by the facts of this case, it correctly found that Prosser was not acting in the course and scope of his employment with Tribe at the time of the collision.

As an initial matter, we note that the trial court improperly evaluated Tribe’s motion for summary judgment pursuant to the burden-shifting framework enunciated in Allen Kane’s Major Dodge, Inc. v. Barnes, 243 Ga. 776, 257 S.E.2d 186 (1979), and Massey v. Henderson, 138 Ga. App. 565, 226 S.E.2d 750 (1976), which establishes a rebuttable presumption that an employee is acting in the scope of his employment when he is operating his employer’s vehicle at the time of the collision that causes the injuries at issue. See Allen Kane’s, 243 Ga. at 777, 257 S.E.2d 186; Massey, 138 Ga. App. at 565 (1), 226 S.E.2d 750. This framework, however, applies only when the employee-driven, employer-owned vehicle is involved in the collision that results in the tort-claimant’s injury. See Allen Kane’s, 243 Ga. at 777-778, 257 S.E.2d 186. The facts of this case are distinguishable because the Tribe-owned tractor-trailer was not involved in the collision between Blake’s tractor-trailer and the SUV that gave rise to this lawsuit. Instead, that collision occurred when the SUV swerved to avoid hitting Prosser after he exited Tribe’s tractor-trailer and darted on foot into the path of the SUV. Therefore, Tribe’s motion for summary judgment is properly evaluated pursuant to the general law of respondeat superior.

*4 “Under the doctrine of respondeat superior, a master is liable for the tort of its servant only to the extent that the servant committed the tort in connection with his employment by the master, within the scope of his employment, and in furtherance of his master’s business.” B-T Two, Inc. v. Bennett, 307 Ga. App. 649, 652 (1), 706 S.E.2d 87 (2011). “[T]he general rule for determining whether the master is liable for the acts of an employee is not whether the act was done during the existence of the employment, but whether it was done within the scope of the actual transaction of the master’s business for accomplishing the ends of his employment.” Id. (citation and punctuation omitted). Whether an employee acted in furtherance of his employer’s business and within the scope of his employment is generally an issue to be resolved by the jury; however, “the evidence in some cases is so plain and undisputable that the court may resolve a respondeat superior claim as a matter of law.” Centurion Indus. v. Naville-Saeger, 352 Ga. App. 342, 344 (1), 834 S.E.2d 875 (2019) (citation and punctuation omitted). “Importantly, summary 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. Beckman Coulter, Inc., 348 Ga. App. 505, 508 (2), 823 S.E.2d 826 (2019) (citation and punctuation omitted). See also Graham v. City of Duluth, 328 Ga. App. 496, 501 (1), 759 S.E.2d 645 (2014) (“Under Georgia law, if a servant steps aside from his master’s business to do an act entirely disconnected from it, and injury to another results from the act, the servant may be liable, but the master is not liable.”) (citation and punctuation omitted).

Here, there is no evidence in the record that Prosser, at the time of the collision, was acting within the scope of his employment or in furtherance of Tribe’s business. In fact, as the trial court correctly found, the record contains direct evidence that Prosser was not acting in the scope of his employment or in furtherance of Tribe’s business in the form of Prosser’s guilty plea to theft by taking of Tribe’s tractor-trailer. “In Georgia, a guilty plea is an admission against interest and prima facie evidence of the facts admitted.” Trustgard Ins. Co. v. Herndon, 338 Ga. App. 347, 351 (1), 790 S.E.2d 115 (2016) (physical precedent only) (citation and punctuation omitted). See also OCGA § 24-8-803 (22) (evidence of final judgment entered upon guilty plea admissible “to prove any fact essential to sustain the judgment”). As evidenced by his guilty plea to stealing his employer’s tractor-trailer, Prosser clearly acted “for purely personal reasons unconnected with [his] job” when, after exiting the stolen tractor-trailer, he darted on foot into oncoming traffic.5 McCrary v. Middle Ga. Mgmt. Servs., 315 Ga. App. 247, 255 (2), n.26, 726 S.E.2d 740 (2012) (employer was not liable for employee’s tortious conduct where such conduct arose from employee’s effort to cover up criminal act to which employee later pleaded guilty). See also Elliott v. Leavitt, 122 Ga. App. 622, 630 (6), 178 S.E.2d 268 (1970) (employee’s “complete departure from the scope of employment and the intended use of the [company] vehicle” relieves the vehicle’s owner from liability as a matter of law). Tribe thus met its burden of presenting evidence that Prosser “was not engaged in furtherance of [Tribe’s] business but was on a private enterprise of his own.” Lucas, 348 Ga. App. at 508-509 (2), 823 S.E.2d 826 (employer was not vicariously liable for plaintiff’s injuries caused by accidental discharge of employee’s handgun where employee, in violation of employer’s policy, carried handgun into client’s facility “for purely personal reasons rather than for any purpose beneficial” to his employer).

Where, as here, “a motion for summary judgment is supported by [evidence] showing a prima facie right in the movant to have judgment rendered in his favor, the burden shifts to the opposing party to produce rebuttal evidence sufficient to create a genuine issue of material fact.” Hasty v. Spruill, 207 Ga. App. 485, 486, 428 S.E.2d 420 (1993). Blake maintains that Prosser’s testimony that he made a wrong turn and returned to the interstate in Gainesville to reroute the tractor-trailer contradicts his guilty plea and thereby creates a genuine issue of material fact sufficient to survive summary judgment.6 Specifically, Blake takes an inferential leap and contends that if Prosser were lost at the time of the collision (presumably as a result of the wrong turn), then he was acting in the course and scope of his employment at the time of the collision. However, as the trial court found, Prosser’s testimony that he made a wrong turn does not directly contradict his guilty plea.7 Indeed, it is entirely plausible that Prosser made a wrong turn and navigated onto the interstate to reroute, then, at some point, decided not to return the tractor-trailer to Tribe. As the trial court’s order notes, “[i]f the collision had occurred within closer proximity to Tribe’s headquarters … a jury question would arise as to whether [Prosser] was still in the course and scope of his employment.”

*5 Moreover, Prosser did not testify that he was lost; he testified that he made a wrong turn in Gainesville, eighty miles north of the site of the collision. Thus, his testimony is, at best, circumstantial evidence from which an inference could be drawn that Prosser was lost and was acting in the course of his employment at the time of the collision. But “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.” Patterson v. Kevon, LLC, 304 Ga. 232, 236, 818 S.E.2d 575 (2018) (citation and punctuation omitted). See also Winder v. Paul Light’s Buckhead Jeep Eagle Chrysler Plymouth, 249 Ga. App. 707, 711-712 (3), 549 S.E.2d 515 (2001) (“[C]ircumstantial evidence has no probative value in establishing a fact where such evidence is consistent with direct, unimpeached evidence showing the nonexistence of such fact.”). Of course, it is possible that Prosser was lost when he exited Tribe’s tractor-trailer and darted into traffic eighty miles south of his intended destination, but his testimony that he made a wrong turn does not necessitate that finding, and Blake points to no other evidence that would support such a finding.8 Under these circumstances, Blake’s assertion that Prosser was lost is nothing more than speculation. See Rosales v. Davis, 260 Ga. App. 709, 712 (2), 580 S.E.2d 662 (2003) (circumstantial evidence that does not point more strongly to a conclusion opposite that established by direct evidence “amounts to mere speculation, conjecture, or possibility insufficient to preclude summary judgment”). Such speculation cannot defeat the positive and uncontradicted evidence that Prosser stole Tribe’s tractor-trailer and thus was acting for personal reasons, outside the scope of his employment, and not in furtherance of Tribe’s business at the time of the collision.

Blake further argues that the trial court improperly rendered determinations as to Prosser’s credibility, highlighting the following sentence from the trial court’s order: “Even though Defendant Prosser alleges he was not aware of the location of Tribe, the Court finds these statements are not to be given credibility.” It is true, as Blake argues, that a trial court may not make credibility determinations in ruling on a motion for summary judgment, see K/C Ice, LLC v. Connell, 352 Ga. App. 376, 378 (1), 835 S.E.2d 11 (2019) (“In deciding a motion for summary judgment, neither the trial court nor this Court can consider the credibility of witnesses; and a finder of fact must resolve the question of credibility and the conflicts in the evidence which it produces.”), but the trial court’s ruling did not hinge on its disbelief of Prosser’s testimony that he did not know where Tribe was located.9 Instead, the trial court’s decision, which gave Blake the benefit of all reasonable inferences and credited Prosser’s testimony that he made a wrong turn in Gainesville, was premised on the facts (proved by direct evidence) that Prosser drove eighty miles away from Gainesville after coming within 200 yards of his destination and subsequently pleaded guilty to theft by taking of Tribe’s tractor-trailer. The trial court’s opinion of Prosser’s credibility thus was immaterial to its ruling and presents no cause for reversal. Cf. Dupree v. Houston County Bd. of Ed., 357 Ga. App. 38, 46-47 (2), 849 S.E.2d 778 (2020) (“Where credibility is the controlling question, summary judgment is not appropriate.”) (citation and punctuation omitted).

*6 Indeed, the portions of the trial court’s order that Blake contends constitute improper credibility determinations, when read in context, appear instead to be determinations that Prosser’s testimony about making a wrong turn does not support the reasonable inference that he simply was lost at the time of the collision. Because only reasonable inferences can give rise to a genuine issue of material fact sufficient to preclude summary judgment, see Lau’s Corp. v. Haskins, 261 Ga. 491, 495 (4), 405 S.E.2d 474 (1991), the trial court did not err by passing on the reasonableness of the inference that Prosser was lost, which was premised on circumstantial evidence, in light of the direct evidence that Prosser was not acting in the course and scope of his employment. Cf. Patterson, 304 Ga. at 236-237, 818 S.E.2d 575 (summary judgment not appropriate where defendant’s motion for summary judgment was based upon circumstantial evidence and plaintiffs “presented evidence which, although circumstantial, contradicted point by point the assertions made in” defendant’s motion).

Based on well settled law, the evidence is plain and undisputable that Prosser was not acting in the course and scope of his employment with Tribe when he exited the Tribe-owned tractor-trailer eighty miles away from his intended destination and ran into traffic. The trial court therefore was permitted to resolve this respondeat superior claim as a matter of law, and it did not err in granting summary judgment to Tribe.

Judgment affirmed.

Barnes, P.J., and McFadden, P. J., concur.
All Citations
— S.E.2d —-, 2021 WL 3578045

Footnotes

1
Prosser was charged with hit and run in connection with this incident.

2
Blake also asserted claims against Prosser, but Prosser is not a party to this appeal.

3
Tribe’s motion for summary judgment also addressed claims asserted by Blake for Tribe’s negligent hiring, training, and supervision, as well as negligent entrustment of a commercial vehicle to Prosser. In granting summary judgment, the trial court found that the issues were unopposed and any argument was waived because Blake failed to address the claims in his response to Tribe’s motion. On appeal, Blake does not challenge the trial court’s decision regarding these issues.

4
Blake’s response relied upon the standard announced by our Supreme Court in Allen Kane’s Major Dodge, Inc. v. Barnes, 243 Ga. 776, 257 S.E.2d 186 (1979), while the trial court relied upon this Court’s decision in Massey v. Henderson, 138 Ga. App. 565, 226 S.E.2d 750 (1976). The difference is immaterial, however, because both cases employ the same presumption and burden-shifting framework. See Allen Kane’s, 243 Ga. at 777, 257 S.E.2d 186 (“Where a vehicle is involved in a collision, and it is shown that the automobile is owned by a person, and that the operator of the vehicle is in the employment of that person, a presumption arises that the employee was in the scope of his employment at the time of the collision, and the burden is then on the defendant employer to show otherwise.”) (citation and punctuation omitted); Massey, 138 Ga. App. at 565 (1), 226 S.E.2d 750 (“[U]nder Georgia law[,] a presumption arises when a servant is operating his employer’s vehicle at the time of a collision, he was in the scope of his employment. The burden is then upon the master to rebut the presumption by evidence that is clear, positive and uncontradicted and that shows the servant was not in the scope of his employment.”) (citations and punctuation omitted).

5
Blake argues that “[i]t is not a ‘fact’ that [ ] Prosser stole the truck” because Prosser’s guilty plea “is not conclusive and is only a circumstance to be considered with other evidence in a civil action for damages.” But Blake misapprehends the case law upon which he premises this assertion. Prosser’s guilty plea is indeed prima facie evidence of the facts admitted, i.e., that he stole Tribe’s tractor-trailer, but “it is not conclusive that [Prosser] was negligent[.]” Setliff v. Littleton, 264 Ga. App. 711, 714 (2), 592 S.E.2d 180 (2003).

6
While Blake enumerates three errors in his appellate brief, these purported errors are premised on the singular notion that Prosser’s deposition testimony contradicts his guilty plea and thus creates an issue of material fact that can only be resolved by a jury.

7
Blake asserts that the trial court improperly determined that Prosser’s deposition testimony and guilty plea were not contradictory. However, it is well settled that “[w]hether [ ] testimony is contradictory … is a question of law for the trial court.” Liles v. Innerwork, Inc., 279 Ga. App. 352, 353-354 (1), 631 S.E.2d 408 (2006) (citation and punctuation omitted). We find no error.

8
Blake argues in passing that Prosser’s abandonment of the tractor-trailer is evidence that he was acting in the scope of his employment because Prosser “testified that he ran across the highway because he smelled gasoline and was trying to get away from the truck,” which, Blake asserts, “is what [he] was trained to do by Appellee Tribe if he smelled gasoline.” Prosser testified, however, that in the event of a suspected fuel leak, Tribe’s driver’s handbook directed him to “[p]ull over, call 911, alert dispatch, [and] put out safety cones for bystanders and other drivers.” Prosser further acknowledged that Tribe’s standard operating procedure mandated that “[d]rivers will not leave their truck unattended[.]” Accordingly, Prosser’s testimony that he “was trying to get away from the truck” is insufficient to create a genuine issue of material fact as to whether he was acting in the scope of his employment.

9
The records shows that Prosser did not, in fact, testify that he was unaware of Tribe’s location. Instead, he testified that he did not know to which of Tribe’s two Gainesville locations he was supposed to return the tractor-trailer.