FIRST DIVISION

PHIPPS, C. J.,

ELLINGTON, P. J., and MCMILLIAN, J.

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/

March 27, 2015

In the Court of Appeals of Georgia

A14A2210. ARCHER FORESTRY, LLC et al. v. DOLATOWSKI.

PHIPPS, Chief Judge.

Mary Jean Franklin Dolatowski sustained injuries when the vehicle she was

driving collided with a vehicle being driven by Steven Ray Archer. At the time of the

collision, at about 2:00 p.m. on November 20, 2008, Archer was driving home in his

employer’s vehicle. In her ensuing tort action, Dolatowski named numerous

defendants, including Archer and his employer, Archer Forestry, LLC (collectively,

the Archer Defendants). Dolatowski claimed that the Archer Defendants were liable

to her under theories of negligence.

The Archer Defendants filed a joint motion for summary judgment. Therein,

they challenged Dolatowski’s claimsfor punitive damages on the ground thatshe had

failed to adduce sufficient evidence therefor; alternatively, they sought a ruling that,
given the evidence adduced, any award of punitive damages must be statutorily

capped. Contesting liability, Archer Forestry argued that there was no evidence to

support a finding of respondeatsuperior; and both defendants argued that Dolatowski

was barred from any recovery due to her own (alleged) negligent driving and failure

to avoid the consequences of their (alleged) negligence. The trial court entered a

detailed order, rejecting the Archer Defendants’ arguments that the evidence failed

to justify punitive damages and failed to show respondeat superior. The court made

no ruling, however, as to their remaining two challenges.

In this appeal, the Archer Defendantsmaintain that theywere entitled to rulings

in their favor on each ground asserted.

1 For reasonsthat follow, we reverse the rulings

made by the trial court and remand the case for proceedings not inconsistent with this

opinion.

Summary judgment is proper “if the pleadings, depositions, answers to

interrogatories, and admissions on file, together with the affidavits, if any, show that

there is no genuine issue as to any material fact and that the moving party is entitled

1 This is a cross-appeal to Dolatowski v. Eagle Rock Distributing Co., ___ Ga.

App. ___, ___ (Case No. A14A2174, decided on March 27, 2015 ), which affirmed,

under Court of Appeals Rule 36, the grants of summary judgment motions filed by

other defendants. 

2
to a judgment as a matter of law.”2

“Thus, to prevail on a motion for summary

judgment, the moving party must demonstrate that there is no genuine issue of

material fact, so that the party is entitled to judgment as a matter of law.”3

“In our de

novo review of the grant [or denial] of a motion for summary judgment, we must view

the evidence, and all reasonable inferences drawn therefrom, in the light most

favorable to the nonmovant.”4

1. The Archer Defendants contend that the trial court erred by concluding that

they were not entitled to summary judgment on Dolatowski’s claims for punitive

damages, maintaining that Dolatowskifailed to adduce evidence that would authorize

such an award.

Pursuant to OCGA § 51-12-5.1 (b), “[p]unitive damages may be awarded only

in such tort actions in which it is proven by clear and convincing evidence that the

defendant’s actions showed willful misconduct, malice, fraud, wantonness,

2

 OCGA § 9-11-56 (c).

3 Cowart v. Widener, 287 Ga. 622, 623 (1) (a) (697 SE2d 779) (2010) (citations

and punctuation omitted).

4

Id. at 624 (1) (a) (citation and punctuation omitted); see Norton v. Budget

Rent A Car System, 307 Ga. App. 501 (705 SE2d 305) (2010) (we review the denial

of summary judgment de novo, viewing the evidence and all reasonable inferences

therefrom in the light most favorable to the nonmoving party).

3
oppression, or that entire want of care which would raise the presumption of

consciousindifference to consequences.” Citing thatstatutory provision, the Supreme

Court of Georgia has espoused,

Something more than the mere commission of a tort is necessary for the

imposition of punitive damages. Negligence alone, even gross

negligence, is insufficient to support punitive damages. Punitive

damages cannot be imposed without a finding of culpable conduct based

upon either intentional and wilful acts, or actsthat exhibit an entire want

of care and indifference to consequences.

5

Accordingly, this court has held, “In cases involving automobile collisions, punitive

damages are authorized when the accident results from a pattern or policy of

dangerous driving, such as excessive speeding or driving while intoxicated, but not

when a driver simply violates a rule of the road.”

6

Countering the Archer Defendants’ challenge, Dolatowski presented an

accident reconstructionist’s opinion that, immediately before impact, Archer was

traveling approximately 48 - 51 miles per hour in a 45 miles per hour zone.

5 MDC Blackshear, LLC v. Littell, 273 Ga. 169, 173 (4) (534 SE2d 356) (2000)

(footnote omitted).

6 Lindsey v. Clinch County Glass, 312 Ga. App. 534, 535 (718 SE2d 806)

(2011) (emphasis supplied).

4
Additionally, Dolatowski cited evidence that, when the collision occurred, Archer

was talking on his cell phone, which she maintains showed that Archer was a

distracted driver.

We agree with the Archer Defendants. Construed in Dolatowski’s favor, the

evidence fell short of providing a basis for an award of punitive damages against

either of them.

7 Accordingly, the trial court’s ruling that the Archer Defendants were

not entitled to judgment as a matter of law on Dolatowski’s claims for punitive

damages is reversed.

7 See Mastec North America v. Wilson, 325 Ga. App. 863, 867-868 (755 SE2d

257) (2014) (determining that evidence that the driver was talking on his cell phone

at the time of the accident and that he thereafter pled guilty to a traffic violation “too

fast for conditions” was insufficient to support an award for punitive damages);

Lindsey, supra at 534-535 (determining that plaintiff could not recover punitive

damages against driver who admittedly caused accident due to being distracted while

looking up a number on his cell phone, where there was no evidence that driver had

a history of distraction-related accidents and there was no evidence showing a pattern

of dangerous driving or other aggravating circumstances). Cf. Langlois v. Wolford,

246 Ga. App. 209, 210 (1) (539 SE2d 565) (2000) (determining that punitive damages

were authorized, where the driver left the scene of an accident, was intoxicated, and

had a history of prior DUIs and traffic violations).

5
2. Our holding in Division 1

8

renders moot the Archer Defendants’ contention

that the trial court erred by failing to cap punitive damages at $250,000 under OCGA

§ 51-12-5.1 (g).

3. Archer Forestry contends that the trial court erred when it failed to grant

summary judgment on the issue of respondeatsuperior, maintaining that Dolatowski

failed to adduce evidence from which a jury could find that Archer was in the course

and scope of his employment at the time of the collision. We agree.

As explained in Allen Kane’s Major Dodge v. Barnes,

9

“[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.”10

Where a tort occurs as a result of a vehicle collision in which the

employee was driving his employer’s vehicle, . . . the employer’s

liability must be analyzed under the burden-shifting framework

espoused by the Supreme Court of Georgia in Allen Kane’s Major

8

 Supra.

9

 243 Ga. 776 (257 SE2d 186) (1979).

10

 Id. at 777 (citation and punctuation omitted).

6
Dodge.[11

] Under this framework, a presumption arises that the

employee was acting in the course and scope of his employment at the

time of the collision, and the burden is then on the employer to show

otherwise. An employer may overcome this presumption as a matter of

law by presenting uncontradicted evidence showing that the employee

was not acting in the course and scope of his employment. The employer

is thereafter entitled to summary judgment unless other facts are

proffered . . . from which a jury could reasonably infer that the employee

was acting within the course and scope of his employment when the

accident occurred.

12

Here, it was uncontested that Archer was driving his employer’s vehicle at the

time of the collision.But Archer Forestry rebutted the presumption that thereby arose,

citing evidence that when the collision occurred at about 2:00 p. m., Archer was

driving home. “As a general rule, a servant in going to and from his work in an

automobile acts only for his own purposes and not for those of his employer, and

consequently the employer is not to be held liable for an injury occasioned while the

servant is en route to or from his work.”13 As Archer recounted during his deposition,

11

 Supra.

12 Mastec North America v. Sandford, 330 Ga. App. 250, 254-255 (1) (765

SE2d 420) (2014) (citation omitted).

13 Chattanooga Publishing Co. v. Fulton, 215 Ga. 880, 883 (3) (114 SE2d 138)

(1960) (citations and punctuation omitted);see Mastec NorthAmerica, supra, 330 Ga.

7
his son was in the car at the time; earlier that day, he had picked up his son from

middle school, and taken him to an appointment with a pediatrician; the two of them

had left the doctor’s office at about 1:30 p.m. When the collision occurred, Archer

recounted, he was on his cell phone with his wife, discussing their son’s doctor’s

visit.

Dolatowski maintains that she nevertheless created a factual issue regarding

respondeat superior with evidence showing that, within the 25 minutes prior to the

collision, Archer used his cell phone to make calls relating to his employer’s

business. Additionally, she cites evidence that at about 2:48 p.m. on the day in

question, Archer again used his cell phone to make a call relating to his employer’s

business, which call lasted a few minutes. (But Archer deposed that he did not recall

whether he was still at the scene of the accident at the time of that call.)

Even so, the evidence cited by Dolatowski created nothing for a jury to

decide.14 Contrary to cases such as Hunter v. Modern Continental Constr. Co.

15

and

App. at 254 (1) (“Generally, an employee traveling to or from work is not in the

course of his employment but rather is engaged in a personal activity.”) (citation and

punctuation omitted); Jones v. Aldrich Co., 188 Ga. App. 581, 583 (1) (373 SE2d

649) (1988).

14 See Master North America, supra, 330 Ga. App. at 255-256 (1) (reiterating

that to overcome summary judgment motion on the issue of respondeat superior, the

8
Clo White Co. v. Lattimore,

16

there was no evidence, or even an assertion, that Archer

was on a business call at the time of the collision.

Given the foregoing, “[t]he evidence in the instant case demandsthe conclusion

that, at the time of the collision complained of, [Archer] was using [Archer

plaintiff “mustshow that [the defendant-employee] was acting within the scope of his

employment at the time of the accident”) (emphasis in original); Farzaneh v. Meritt

Constr. Co., 309 Ga. App. 637, 640, n. 3 (710 SE2d 839) (2011) (reasoning that the

evidence – that the employee had a company-issued cell phone with him at the time

of collision, that he kept at least one company tool in his vehicle, and that he may

have had a “vehicle allowance” – was insufficient to create respondeat superior

liability for the employer, where the employee “was not using his [company]-issued

cell phone when the collision occurred”); Braddy v. Collins Plumbing &Constr., 204

Ga. App. 862-865 (420 SE2d 806) (1992) (affirming summary judgment to employer

due to insufficient evidence to support a finding of respondeat superior liability,

despite evidence that employee was driving a company-owned truck in which a twoway radio was installed for communicating during the work day with the job site).

Accord Short v. Miller, 166 Ga. App. 265, 266 (304 SE2d 434) (1983) (stating that

the mere fact that the employee was “on call” did not constitute evidence that he was

in the service of his employer when the collision occurred).

15

287 Ga. App. 689 (652 SE2d 583) (2007) (where evidence showed that, at

the time of the accident, the employee may have been on a work-related cell phone

call or distracted by such a call that he chose not to answer, a jury question remained

as to the employer’s liability for its employee’s actions).

16

263 Ga. App. 839, 840 (590 SE2d 381) (2003) (holding that a jury question

was created as to the employer’s potential liability for its employee’s actions, where

evidence “support[ed] the conclusion that [the employee] may have actually been on

the phone regarding matters of company business at the time of the accident”)

(emphasis in original).

9
Forestry’s] automobile for a purely personal mission of his own . . ., in no way

connected with the business of [Archer Forestry], and not within the scope of his

employment.”17 Archer Forestry was therefore entitled to summary judgment on the

issue of respondeat superior.18 The trial court’s ruling holding otherwise is reversed.

4. The Archer Defendants contend that, pursuant to OCGA § 51-11-7 and cases

such as Weston v. Dunn Transportation & Stringer,

19

they were entitled to summary

judgment on the ground that Dolatowski’s own (alleged) negligence barred any

recovery against them. While this ground was argued to the trial court, the court made

no ruling thereon in its detailed order.20 And “we decline to address the[ ] ground[ ]

on appeal because [it was] not ruled upon by the trial court.”21

17 Chattanooga Publishing Co., supra.

18 See Cowart, supra; Master North America, supra, 330 Ga. App. at 254-257

(1); Farzaneh, supra; Braddy, supra.

19

 304 Ga. App. 84 (695 SE2d 279) (2010).

20 The Archer Defendants asked for a ruling in their favor in their motion for

reconsideration, but the court did not rule on that motion before the Archer

Defendants perfected this appeal. See generally Becker v. Fairman, 167 Ga. App.

708, 709 (1) (307 SE2d 520) (1983) (“[A] motion for reconsideration does not extend

the time for filing a notice of appeal.”).

21 Medical Center of Central Ga. v. Macon, 326 Ga. App. 603, 607 (2) (757

SE2d 707) (2014), citing inter alia, City of Gainesville v. Dodd, 275 Ga. 834, 838-839

(573 SE2d 369) (2002).

10
This case is hereby remanded to the trial court so that it may address the

remaining ground advanced by the Archer Defendants.

22

Judgment reversed and case remanded. Ellington, P. J., and McMillian, J.,

concur.

22 See City of Gainesville v. Dodd, supra; MedicalCenter of Central Ga., supra. 

11