2021 Georgia Code
Title 51 - Torts
Chapter 2 - Imputable Negligence
§ 51-2-4. Liability for Torts of Independent Employee

An employer generally is not responsible for torts committed by his employee when the employee exercises an independent business and in it is not subject to the immediate direction and control of the employer.

(Orig. Code 1863, § 2905; Code 1868, § 2911; Code 1873, § 2962; Code 1882, § 2962; Civil Code 1895, § 3818; Civil Code 1910, § 4414; Code 1933, § 105-501.)

- Liability of employers for injuries to employees generally, § 34-7-20 et seq.

- For article surveying torts law, see 34 Mercer L. Rev. 271 (1982). For annual survey on commercial transportation, see 69 Mercer L. Rev. 41 (2017). For note discussing the doctrine of respondeat superior, see 2 Ga. St. B. J. 478 (1966). For comment on Nichols v. G.L. High Motor Co., 65 Ga. App. 397, 15 S.E.2d 805 (1941), and Andrews v. Norvell, 65 Ga. App. 241, 15 S.E.2d 808 (1941), see 4 Ga. B. J. 46 (1941). For comment on Ellenberg v. Pinkerton's, Inc., 125 Ga. App. 648, 188 S.E.2d 911 (1972), holding employer defendant may not use independent contractor defense to invasion of privacy suit resulting from actions of investigator working in his behalf, see 9 Ga. St. B. J. 519 (1973).

ANALYSIS

• General Consideration
• Applicability to Specific Cases

OPINIONS OF THE ATTORNEY GENERAL

Test to determine status as independent contractor.

- True test whether a person employed is a servant or an independent contractor is whether the employer, under the contract, whether oral or written, has the right to direct the time, the manner, the methods, and the means of the execution of the work, as contradistinguished from the right to insist upon the contractor producing results according to the contract, or whether the contractor in the performance of the work contracted for is free from any control by the employer of the time, manner and method in the performance of the work. 1958-59 Op. Att'y Gen. p. 390.

RESEARCH REFERENCES

Am. Jur. 2d.

- 27 Am. Jur. 2d, Employment Relationship, § 356 et seq.

"Fraudulent or Dishonest Act" by Employee Covered by Fidelity Bond, 13 POF3d 559.

Complicity Rule in Motor Vehicle Accident Cases: Employer's Authorization or Ratification of Driver's Conduct, 19 POF3d 437.

- 30 C.J.S., Employer-Employee, § 237 et seq.

- Employment of incompetent, inexperienced, or negligent employee as independent ground of negligence toward one other than an employee, 8 A.L.R. 574.

Liability of master for injury inflicted by servant with firearms, 10 A.L.R. 1087; 75 A.L.R. 1176.

Liability of master for damage to person or property due to servant's smoking, 13 A.L.R. 997; 31 A.L.R. 294.

Duty of an employer with respect to the timbering of a mine, under the common law and general statutes, 15 A.L.R. 1380.

Liability for misconduct or negligence of messenger not directly related to the service, 18 A.L.R. 1416.

General discussion of the nature of the relationship of employer and independent contractor, 19 A.L.R. 226.

Circumstances under which the existence of the relationship of employer and independent contractor is predictable, 19 A.L.R. 1168.

Liability of employer growing out of unauthorized act of employee in taking charge of property as accommodation, 23 A.L.R. 131.

Contributory negligence or assumption of risk in disobeying rules or directions of master under counter directions by superior, 23 A.L.R. 315.

Liability of employer as predicated on the ground of his being subject to a nondelegable duty in regard to the injured person, 23 A.L.R. 984.

Nondelegable duty of employer in respect of work which will in the natural course of events produce injury, unless certain precautions are taken, 23 A.L.R. 1016.

Nondelegable duty of employer with respect to work which is inherently or intrinsically dangerous, 23 A.L.R. 1084.

Independent contractor: remedial rights in respect of injuries caused by breaches of positive duties correlative to corporate franchises, 28 A.L.R. 122.

Liability of employer for injuries inflicted by automobile while being driven by or for salesman or collector, 29 A.L.R. 470; 54 A.L.R. 627; 107 A.L.R. 419.

Liability of employer for acts or omissions of independent contractor in respect of positive duties or former arising from or incidental to contractual relationships, 29 A.L.R. 736.

Independent contractor: liability of employer as predicated on the ground of his personal fault, 30 A.L.R. 1502.

Judgment for or against master in action for servant's tort as bar to action against servant, 31 A.L.R. 194.

Independent contractor: extent of the employer's liability after he has assumed control of the subject-matter of the stipulated work, 31 A.L.R. 1029.

Liability of contractee and contractor inter se with respect to injuries sustained while the stipulated work is in course of performance, 44 A.L.R. 891.

Liability of the contractee for injuries sustained by the contractor's servants in the course of the stipulated work, 44 A.L.R. 932.

Owner's liability for injury by automobile while being used by a servant for his own pleasure or business, 45 A.L.R. 477.

Personal liability of agent to third person for injuries or damages due to condition of principal's premises, 49 A.L.R. 521.

Liability of one undertaking to repair automobile for injury to third person, 52 A.L.R. 857.

Liability for injuries resulting from failure of independent contractor to guard opening in sidewalk while delivering merchandise, etc., 53 A.L.R. 932.

Salesman employed on a percentage or commission basis as a servant or an independent contractor, 61 A.L.R. 223.

Necessity of verdict against servant or agent as condition of verdict against master or principal for tort of servant or agent, 78 A.L.R. 365.

Negligence of driver of automobile as imputed to members of joint enterprise, 85 A.L.R. 630.

Independent contractor rule as applied to injuries resulting from conditions created by independent contractors in streets, 115 A.L.R. 965.

Prima facie case or presumption from registration of automobile in name of, or from proof of ownership by, defendant, as applicable to questions other than the master-servant relationship at time of accident, 122 A.L.R. 228.

One soliciting subscriptions for newspaper, magazine, or book, on commission basis as an independent contractor or employee, 126 A.L.R. 1120.

Criminal responsibility of one authorized generally to sell intoxicating liquors for particular illegal sale thereof by employee or agent, 139 A.L.R. 306.

Variance between allegation and proof as regards identity of servant or agent for whose acts defendant is sought to be held responsible, 139 A.L.R. 1152.

Homework by employee as affecting employer's responsibility for injury to third person due to employee's negligence while on way to or from home, 146 A.L.R. 1193.

Automobile owner's common law liability for negligence in entrusting car to known incompetent, reckless, or inexperienced person as affected by statute limiting owner's liability to use within terms of consent, 163 A.L.R. 1418.

Employer's liability for assault by truck driver or chauffeur, 172 A.L.R. 532.

Loaned servant doctrine under Federal Employers' Liability or Safety Appliance Act, 1 A.L.R.2d 302.

Doctrine of apparent authority as applicable where relationship is that of master and servant, 2 A.L.R.2d 406.

Liability under respondeat superior doctrine for acts of operator furnished with leased machine or motor vehicle, 17 A.L.R.2d 1388.

Employer's liability for negligence of employee in piloting his own airplane in employer's business, 46 A.L.R.2d 1050.

Deviation from employment in use of employer's car during regular hours of work, 51 A.L.R.2d 8; 65 A.L.R.4th 346.

Employee's operation of employer's vehicle outside regular working hours as within scope of employment, 51 A.L.R.2d 120.

Route driver or salesman as independent contractor or employee of merchandise producer or processor, for purposes of respondeat superior doctrine, 53 A.L.R.2d 183.

Liability of employer for negligent operation of motor vehicle by automobile salesman, 53 A.L.R.2d 631.

Employer's liability for assault by taxicab or motorbus driver, 53 A.L.R.2d 720.

Liability of hospital or sanitarium for negligence of physician or surgeon, 69 A.L.R.2d 305.

Status of gasoline and oil distributor or dealer as agent, employee, independent contractor, or independent dealer as regards responsibility for injury to person or damage to property, 83 A.L.R.2d 1282.

Liability insurance of garages, motor vehicle repair shops and sales agencies, and the like, 93 A.L.R.2d 1047.

Respondeat superior: deviation from scope of employment in flying employer's airplane, 100 A.L.R.2d 1346.

Right of employer sued for tort of employee to implead the latter, 5 A.L.R.3d 871.

Liability of corporation for torts of subsidiary, 7 A.L.R.3d 1343.

Owning, leasing, or otherwise engaging in business of furnishing services for taxicabs as basis of tort liability for acts of taxi driver under respondeat superior doctrine, 8 A.L.R.3d 818.

Liability of police officer or his bond for injuries or death of third persons resulting from operation of motor vehicle by subordinate, 15 A.L.R.3d 1189.

Master's liability for injury to or death of person, or damage to property, resulting from fire allegedly caused by servant's smoking, 20 A.L.R.3d 893.

Liability of one contracting for private police security service for acts of personnel supplied, 38 A.L.R.3d 1332.

Liability to one injured in course of construction, based upon architect's alleged failure to carry out supervisory responsibilities, 59 A.L.R.3d 869.

Liability of hospital, other than mental institution, for suicide of patient, 60 A.L.R.3d 880.

Liability for member of unincorporated association for tortious acts of association's nonmember agent or employee, 62 A.L.R.3d 1165.

When is employer chargeable with negligence in hiring careless, reckless, or incompetent independent contractor, 78 A.L.R.3d 910.

Vicarious liability of private franchisor, 81 A.L.R.3d 764.

Patient tort liability of rest, convalescent, or nursing homes, 83 A.L.R.3d 871.

Principal's liability for punitive damages because of false arrest or imprisonment, or malicious prosecution, by agent or employee, 93 A.L.R.3d 826.

Storekeeper's liability for personal injury to customer caused by independent contractor's negligence in performing alterations or repair work, 96 A.L.R.3d 1213.

Liability of hospital or sanitarium for negligence of physician or surgeon, 51 A.L.R.4th 235.

Modern status of rule imputing motor vehicle driver's negligence to passenger on joint venture theory, 3 A.L.R.5th 1.