EDWARDS v. LENNAR GEORGIA LLC (2026)

Following a car accident, Michael Edwards and Kristin Edwards ¹ (collectively the “appellants”) brought the underlying action against, inter alia, Adolfo Perez, Perez's employer, Magic Touch Construction Services, LLC (“Magic Touch”), and Lennar Georgia, LLC (“Lennar”). Lennar moved for summary judgment, alleging, among other things, that it could not be held vicariously liable for Perez or Magic Touch because it did not exert control over either on the date of the accident. The trial court granted summary judgment, finding that the appellants’ claims against Lennar, for vicarious liability and negligent hiring, retention, training, monitoring and supervision, failed as a matter of law.

The appellants argue that the grant of summary judgment to Lennar was made in error as genuine issues of material fact exist as to whether Magic Touch and Perez were employees of Lennar and whether Magic Touch and Perez were acting in furtherance of Lennar's business and within the scope of their employment at the time of the accident. As the appellants failed to provide argument or legal authority regarding their negligent hiring, retention, training, monitoring and supervision claims, we affirm that portion of the trial court's judgment. See Miller v. Polk, 363 Ga. App. 771, 777-78(2)(b) (872 SE2d 754) (2022) (affirmed the trial court's grant of summary judgment on the appellant's corporate liability claim when appellant abandoned his claim by failing to provide argument in support of the same). However, for the reasons that follow, we reverse the grant of summary judgment to Lennar on the appellants’ claim of vicarious liability.

Summary judgment is appropriate “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 to a judgment as a matter of law[.]” OCGA § 9-11-56(c). We view the evidence and all reasonable inferences in favor of the non-movant and review the trial court's order de novo. Prodigies Child Care Mgmt. v. Cotton, 317 Ga. 371, 372-73(1) (893 SE2d 640) (2023).

So viewed, the evidence shows the following. Lennar constructs subdivisions and houses throughout Georgia. In April 2022, Lennar was building fifteen subdivisions in Georgia, including a subdivision called “Beacon,” which consisted of 282 homes. Lennar contracted with Magic Touch to provide waste removal, and, in April 2022, Magic Touch was performing this service for Lennar at approximately twelve subdivisions, including Beacon. Under their partnership agreement, Magic Touch agreed to “provide labor, equipment and/or other services in such location(s) and under such terms and conditions as Lennar shall deem necessary[.]”

The contract required that Magic Touch install and maintain construction debris bins in specific areas dictated by Lennar, that the bins be made from metal until concrete flatwork was completed, that only plastic bins could be placed on finished concrete, and that Magic Touch must remove all trash and then remove the bins when the homesite is complete. Magic Touch provided approximately thirty bins per subdivision, but, as Lennar needed additional bins, Magic Touch would provide them for as long as Lennar required. Magic Touch was also required to remove debris that overflowed to the ground. Beyond the proscribed scope of work in the contract, a Lennar field associate construction manager would contact Magic Touch and request that Magic Touch perform additional work, such as picking up trash, including bricks, and sweeping houses.

On April 9, 2022, Perez drove a Magic Touch truck to a job site for another Magic Touch client that was not Lennar. However, during his lunch Perez was told by Jose Luna, the owner of Magic Touch, that Lennar required a special job at the Beacon subdivision. Luna informed Perez that Lennar needed him to “clean up the whole community and pick up some brick” and that Perez needed to perform the job “as soon as possible.” After his lunch, while Perez was driving to Beacon, he was in a motor vehicle collision. Perez swerved into the left lane, attempting to avoid a collision in front of him, but he hit an oncoming vehicle.

Edwards, the driver of the other vehicle, filed the underlying lawsuit, alleging, inter alia, that at the time of the collision Perez was acting within the course and scope of his employment with Magic Touch and Lennar. The trial court granted Lennar's motion for summary judgment, and this appeal followed.

1. Edwards argues that the trial court erroneously found that Lennar could not be held responsible under the theory of respondeat superior as a matter of law. We agree.

“Georgia law has long recognized the common-law doctrine of respondeat superior, which is also known as the ‘master-servant’ rule.” Statham v. Quang, 321 Ga. 533, 539(2)(b)(i)(A) (915 SE2d 864) (2025) (punctuation omitted). See OCGA § 51-2-2 (“Every person shall be liable for torts committed by ․ his servant by his command or in the prosecution and within the scope of his business, whether the same are committed by negligence or voluntarily.”). Under the respondeat superior doctrine, a principal may be held vicariously liable “for the negligent conduct of an agent committed in furtherance of the principal's goals and within the scope of the principal's business.” Statham, 321 Ga. at 539(2)(b)(i)(A) (quotation marks omitted). However, the doctrine only applies “if the agent qualifies as a ‘servant’ of the principal, as opposed to, for example, an ‘independent contractor.’ ” Id.

In order to determine if a master-servant relationship exists, we analyze whether “a principal has a significant degree of control over how an agent performs his work, because the principal's control over his agent's work serves as a primary justification for holding the principal liable not just for his own conduct but for that of his agent.” Statham, 321 Ga. at 539(2)(b)(i)(A) (citation omitted). In our review, we look to “whether, at the time of the injury, the alleged servant was subject to the defendant's orders and control and was liable to be discharged by him for disobedience to orders or for misconduct.” Farmer v. Ryder Truck Lines, 245 Ga. 734, 739 (266 SE2d 922) (1980) (quotation marks omitted). “[D]etermining whether the principal had that degree of control over an agent when the injury occurred generally requires consideration of whether the principal assumed control over, or had the right to control, the time, manner, and method of executing the work.” Statham, 321 Ga. at 540(2)(b)(i)(A) (quotation marks omitted); OCGA § 51-2-5(5) (“An employer is liable for the negligence of a contractor ․ [i]f the employer retains the right to direct or control the time and manner of executing the work or interferes and assumes control so as to create the relation of master and servant or so that an injury results which is traceable to his interference[.]”). And, as we have held, “the power to discharge has a strong tendency to show that the relation of master and servant existed between them.” Ga. Insurers Insolvency Pool v. LogisticCare Solutions, 374 Ga. App. 208, 212(1) (912 SE2d 91) (2025) (quotation marks omitted). Ultimately though, “whether a master-servant relationship exists is generally a factual question for the jury to decide based on all the relevant evidence.” Statham, 321 Ga. at 539(2)(b)(i)(A).

A principal's control over an agent can arise through a contract or when a principal “assumes control over the agent's conduct.” Statham, 321 Ga. at 544(2)(b)(ii). The underlying agreement provided that Magic Touch was “acting as an independent contractor and not a partner or joint venturer of Lennar.” Further it stated that:

[Magic Touch] is solely responsible for the employment, acts, errors, omissions, control and direction of its employees, agent, and Sub-subcontractors. ․ [Magic Touch] is solely responsible for, and shall take all necessary actions for, directing, controlling and supervising its employees, controlling the employment conditions of its employees, determining duration of the employment relationship with its employees, and performing all administrative functions for its employees, including supplying workers’ compensation insurance and providing necessary facilities, safety equipment, tools and materials.

However, the contract also showed a level of control, in that Lennar required Magic Touch to attend safety meetings and could fine Magic Touch for failure to adhere to its rules. Magic Touch was required to empty all bins on Fridays, and the contract set specific parameters on where the bins could be placed and what they could be made of. Moreover, Magic Touch was held “responsible to supply appropriate manpower to maintain individual schedules, per home. It shall not be acceptable for homes to be held or delayed awaiting manpower. It is [Magic Touch's] responsibility to add additional equipment, labor crews, and/or extend work hours to accommodate schedules and prevent or remedy work delays.” Magic Touch agreed to “meet the schedule times and task durations on all jobs. If [Magic Touch] fails to meet the scheduled Start Dates or Completion Dates, a fine of $250/day may be applied to [Magic Touch] for each day of Delay.” Lennar retained the ability to terminate the contract for any reason, but the contract also provided specific grounds that could lead to termination, including if Magic Touch chose to “disregard laws, ordinances, job rules or instructions” or “fail[ed] in Lennar's sole judgment to prosecute its Work diligently and promptly[.]” Further, Lennar had the right to require Magic Touch to “immediately remove and replace any person deemed unfit or unskilled by Lennar.”

There was also evidence that Lennar assumed control of Magic Touch and Perez. If Lennar gave directions to a Magic Touch employee, the employee had to follow the directions. Lennar would tell Magic Touch that it had to complete a task by a certain time, including as soon as possible and, “[t]o a degree[,]” Lennar could tell Magic Touch how it wanted the task to be performed. If Magic Touch failed to perform the work in a way that satisfied Lennar or it failed to follow Lennar guidelines, Lennar would issue a warning to Magic Touch or assess a fine. Lennar required that Magic Touch employees undergo fall prevention training and provide proof of same to Lennar, and, if a Magic Touch employee failed to use fall protection, Lennar could, and did, fine Magic Touch.

In addition to Magic Touch supplying, maintaining and emptying bins, Lennar frequently requested that Magic Touch perform other jobs, and Magic Touch had to accept and perform the jobs, or risk the termination of their contract. Luna described Lennar as his “boss” and stated that, if Lennar asked him to jump, he would ask “[h]ow high?” There is also evidence that Lennar could terminate a Magic Touch employee if the employee “disregard[ed] Lennar's job rules or instructions[.]” See Ga. Insurers Insolvency Pool, 374 Ga. App. at 213-15(1) (evidence that principal controlled the hours of the agency's work and required the agent to accept work and dictated pick up and drop off times, and “its ability to terminate the services of [the alleged agent] or any of its drivers at any time for any reason,” created a jury question on whether the alleged agent was an employee or independent contractor).

There is evidence of an independent contractor relationship, in that Magic Touch supplied its own equipment and trucks, Lennar did not dictate routes for the Magic Touch drivers or control every aspect of Magic Touch's work. However, Lennar retained some control over how Magic Touch performed its work, including where bins could be placed and fined Magic Touch for its failure to adhere to its rules. Lennar also required that Magic Touch perform work it dictated or it could fire Magic Touch, it provided the schedule for the work and could demand that the work be performed by a certain time. Ultimately, there is evidence that Magic Touch would perform any service Lennar requested outside the terms of the contract, with the understanding that Lennar was Magic Touch's “boss” and Lennar accepted this control. “Accordingly, we conclude that the trial court erred in holding that the evidence showed as a matter of law that [Magic Touch and Perez were] independent contractor[s]. Although there is certainly some evidence supporting such a proposition, by no means was the evidence undisputed.” Ga. Insurers Insolvency Pool, 374 Ga. App. at 215(1) (punctuation omitted). See Broadnax v. Daniel Custom Constr., 315 Ga. App. 291, 295-96(1) (762 SE2d 770) (2012) (a question of material fact existed as to whether there was a sufficient amount of control under respondeat superior when, inter alia, worker had to work whenever and wherever alleged employer requested, the specific tasks performed by the worker depended on what the principal instructed him to do that day and the principal retained the authority to fire the worker); Ga. Messenger Serv. v. Bradley, 311 Ga. App. 148, 150(1) (715 SE2d 699) (2011) (trial court did not err in denying summary judgment on vicarious liability when, inter alia, there was evidence that the driver had no choice as to which jobs he performed for the messenger service); Am. Ass'n of Cab Cos. v. Parham, 291 Ga. App. 33, 36(1) (661 SE2d 161) (2008) (affirmed denial of motion for directed verdict regarding whether driver was an employee when driver testimony permitted “the conclusion that whenever [the cab company] called [the driver] with a passenger, he picked that passenger up and that [the driver] was thus working as the companies’ agent and under their control”); Davis v. Beasley Timber Co., 241 Ga. App. 706, 708(1) (527 SE2d 221) (1999) (reversed grant of summary judgment as there was evidence that the company “maintained sufficient control over [the driver] so that he can be considered an employee, i.e., instructions regarding company policies and direction regarding timing and destination of hauls”). Compare McClaine v. McLeod, 291 Ga. App. 335, 340-41(1) (661 SE2d 695) (2008) (no vicarious liability as a matter of law when cargo broker did not own the equipment, the trucking company was free to accept or reject shipping assignments, the cargo broker did not set the times and locations of shipments and the cargo broker had no power to fire or discipline any of the trucking company's drivers).

2. Edwards argues that the trial court erred by finding there was no question of material fact as to whether Perez and Magic Touch were acting in the scope of employment and in furtherance of Lennar's business at the time of the accident. Again, we agree.

“In accordance with OCGA § 51-2-2, ․ two elements must be present to render a master liable under respondeat superior: first, the servant must be in furtherance of the master's business; and, second, he must be acting within the scope of his master's business.” Prodigies Child Care Mgmt., 317 Ga. at 377(2)(a) (punctuation omitted). Thus, while we held, in Division I, that a question of material fact exists as to whether an employment relationship was in place at the time of the accident, “if the tort was committed not by reason of the employment, but because of matters disconnected therewith,” Lennar could not be held liable. Id. (quotation marks omitted).

The accident occurred on Saturday, April 9, 2022, when Perez was driving to work at Beacon for Lennar. “[W]hen an employee causes a car accident while driving to or from work, respondeat superior generally does not apply, absent some showing that the employee was otherwise acting in furtherance of her employer's business and within the scope of her employment.” Prodigies Child Care Mgmt., 317 Ga. at 379(2)(b). On the day of the accident, Perez was not scheduled to work at Beacon for Lennar. However, during lunch, Perez was told by Luna that Lennar had called him and needed Magic Touch to “clean up the whole community [at Beacon] and pick up some brick[,]” and Perez needed to perform the job “as soon as possible.”² Perez had been scheduled for a different job, but he changed his plans and drove to Beacon based off of Lennar's immediate needs. Further, Perez testified that picking up bricks was not something he typically did at job sites, but he would do so “[o]n special request[ ].” And the Lennar corporate representative testified that a Lennar field associate construction manager would have had to request that Magic Touch pick up the bricks due to their location.

Perez was not merely commuting to work in the regular course of business. There is evidence that Lennar demanded that work be performed as soon as possible, and Perez changed his schedule and was driving to Beacon in order to help Lennar on a special request. Compare Chattanooga Publishing v. Fulton, 215 Ga. 880, 882(3) (114 SE2d 138) (1960) (denial of judgment notwithstanding the verdict was appropriate when “there was no evidence that [employee] had received or was responding to any call to duty immediately prior to or at the time of the collision, or that he was in the performance of any duty as such employee at the time and place of the collision.”). As there is evidence that Perez was driving to Beacon for unscheduled work on a Saturday at Lennar's request, there is a question of material fact as to whether Perez was acting in the course and scope of his employment and in furtherance of Lennar's business at the time of the collision. See Broadnax, 315 Ga. App. at 297(2) (question of material fact existed as to whether worker was acting in course of employer's business when he was driving his own vehicle to the principal to obtain a ladder for work the principal had ordered him to perform or if he was on a “purely personal mission” of lunch when the collision occurred); Patterson v. Se. Newspapers, 243 Ga. App. 241, 242-44(1) (533 SE2d 119) (2000) (reversed grant of summary judgment due to question of material fact as to whether employee was acting in course and scope of employment when he was driving home after responding to his employer's short notice call to fill in for another employee). Compare Dougherty Equip. v. Roper, 327 Ga. App. 434, 437(1)(a) (757 SE2d 885) (2014) (“To show that [worker] was acting in the scope of his employment, there must be evidence that he had, in fact, been called to duty and was acting pursuant to that duty at the time of the accident” and due to the absence of evidence that he had undertaken a duty at the employer's direction at the time of the accident, summary judgment was appropriate).

Judgment affirmed in part, and reversed in part.

FOOTNOTES

1.   Kristin alleges a claim for loss of consortium, but, for ease of use in this opinion, we will refer to Michael Edwards by his last name.

2.   For the first time on appeal, Lennar objects to Perez's testimony that Lennar asked Magic Touch, through Luna, to perform the work on the day of the accident, and argues that the testimony was inadmissible hearsay. Even assuming that Lennar's objection is not waived, see OCGA § 24-8-802, due to the parties’ reservation of objections at the deposition and the fact that this portion of the deposition was not used by either party until the appellant's appellate brief, “absent special circumstances, an appellate court need not consider arguments raised for the first time on appeal.” Pfeiffer v. Ga. Dep't of Transp., 275 Ga. 827, 829(2) (573 SE2d 389) (2002) (footnote omitted). No such special circumstances are presented here. Id. at 829(2) n. 10.

Mercier, Judge.

Brown, C. J., and Rickman, P. J., concur.