NOTICE: This opinion is subject to modification resulting from motions for reconsideration under Supreme Court Rule 27, the Court’s reconsideration, and editorial revisions by the Reporter of Decisions. The version of the opinion published in the Advance Sheets for the Georgia Reports, designated as the “Final Copy,” will replace any prior version on the Court’s website and docket. A bound volume of the Georgia Reports will contain the final and official text of the opinion.
In the Supreme Court of Georgia
Decided: May 13, 2025
S24G0842. STATHAM v. QUANG et al.
COLVIN, Justice.
We granted certiorari in this case to determine whether
physicians who supervised a medical student during a surgery could
be held vicariously liable for any negligent acts or omissions that the
medical student may have committed during the procedure, under
OCGA § 51-1-38, general agency principles, or the borrowed servant
doctrine. The trial court granted partial summary judgment to the
defendants, summarily concluding that they could not be held
vicariously liable for the medical student’s negligence. And a divided
panel of the Court of Appeals affirmed, with the lead opinion, which
was not joined by either of the other two judges on the panel,
concluding that OCGA § 51-1-38 did not impose vicarious liability
on the defendant physicians, and that, based on the evidence
presented on summary judgment, the defendant physicians could
not be held vicariously liable under general agency principles or the
borrowed servant doctrine. See Statham v. Quang, 371 Ga. App. 55,
59-61 (a)-(c) (899 SE2d 275) (2024).
As we explain below, we agree with the Court of Appeals’ lead
opinion that OCGA § 51-1-38 (a statute that immunizes medical
students from civil liability under certain circumstances) did not
provide a basis for holding the defendant physicians vicariously
liable. We also agree with the lead opinion’s ultimate conclusion that
the defendant physicians could not be held vicariously liable under
the borrowed servant doctrine, albeit for different reasons than
those expressed in the Court of Appeals’ lead opinion. As we explain
below, the defendant physicians could not be held vicariously liable
under the borrowed servant doctrine because that doctrine operates
as a defense to a claim of vicarious liability under the doctrine of
respondeat superior, not as an independent basis for imposing
vicarious liability on a defendant. But we disagree with the lead
opinion’s conclusion that, as a matter of law, the defendant
2
physicians could not be held vicariously liable for the medical
student’s negligence under general agency principles. As explained
below, under the doctrine of respondeat superior, a general principle
of agency law, a physician can be vicariously liable for the negligent
acts or omission of a medical student under his supervision if the
evidence shows that, when the injury occurred, the medical student
was acting as the physician’s “servant” in furtherance of the
physician’s goals and within the scope of the physician’s business.
And because genuine issues of material fact remain regarding
whether the defendant physicians were vicariously liable under the
doctrine of respondeat superior for any negligence committed by the
medical student, we reverse the Court of Appeals’ judgment
affirming the trial court’s grant of partial summary judgment to the
defendants on the issue of vicarious liability.
1. After Plaintiff Jacqueline Statham suffered injuries during
a hysterectomy, she sued the physician who performed the surgery
(David S. Quang, D.O.), the physician who assisted in the surgery
(Tan-Loc Nguyen, M.D.), and the defendant physicians’ medical
3
practice (Women’s Healthcare of Middle Georgia, P.C.) (collectively,
“Defendants”). In her second amended complaint, Plaintiff alleged
that the negligence of a medical student, who assisted in Plaintiff’s
surgery by manipulating a sponge stick under the supervision of the
defendant physicians, resulted in the defendant physicians
improperly cutting her rectal wall. And according to Plaintiff, that
injury later developed into a “rectovaginal fistula” that caused fecal
matter to enter her vagina and required further medical
intervention. Based on these allegations, Plaintiff asserted claims
against Defendants for professional negligence, negligent
supervision of the medical student, and vicarious liability for any
negligence committed by the medical student.
The parties filed cross-motions for partial summary judgment
on the issue of vicarious liability. Plaintiff argued that, under
general principles of agency law and the borrowed servant doctrine,
the defendant physicians were vicariously liable for any negligence
committed by the medical student. And Defendants argued that
they could not be held vicariously liable under general agency
4
principles, the borrowed servant doctrine, or OCGA § 51-1-38.1
On summary judgment, the following facts were undisputed.
On August 12, 2019, Dr. Quang performed “a total laparoscopic
hysterectomy with left salpingo-oophorectomy” on Plaintiff. During
the procedure, Dr. Nguyen assisted Dr. Quang. And a medical
student, who was a student at Philadelphia College of Osteopathic
Medicine (“PCOM”), assisted the defendant physicians. The medical
student’s role in the procedure was to insert a sponge stick into
Plaintiff’s vagina as directed by Dr. Quang and to maneuver the
sponge stick as directed by the defendant physicians in order to lift
Plaintiff’s bladder up, help the defendant physicians visualize
Plaintiff’s anatomy, and help guide Dr. Quang to the appropriate
location for incision. The defendant physicians visually confirmed
that the medical student had initially inserted the sponge stick into
Plaintiff’s vagina. But at some point during the procedure, the
medical student removed the sponge stick from Plaintiff’s vagina
1 Defendants also moved for summary judgment on Plaintiff’s claim for
negligent supervision. The trial court denied that motion, and the negligent
supervision claim is not at issue on appeal.
5
and placed it in Plaintiff’s rectum, which made Plaintiff’s injury
“more likely.”
The evidence submitted on summary judgment also included a
written contract (the “Agreement”) between the medical student’s
school, PCOM (the “School”), and the defendant physician’s medical
practice, Women’s Healthcare of Georgia (the “Host Agency”). Under
the Agreement, the Host Agency agreed to provide “hands on”
“clerkship[s]” for the School’s third- and fourth-year medical
students in exchange for the School paying the Host Agency $4,000
for each fully completed “clerkship.” The Agreement provided that
the Host Agency would provide students “access to patients at Host
Agency facilities in an appropriately supervised environment,” that
the School would “advise students that they [were] required to
comply with Host Agency rules, regulations, and procedures,” that
the Host Agency would “retain full authority and responsibility for
patient care and quality standards,” and that students were
prohibited from “render[ing] unsupervised patient care and/or
services.”
6
The Agreement further provided that the Host Agency had the
authority to terminate a student’s participation in a patient’s
procedure, stating that “[t]he Host Agency will resolve any situation
in favor of its patients’ welfare and restrict a student to the role of
observer when a problem may exist until the incident can be
resolved by the staff in charge of the student or the student is
removed,” and that the “Host Agency may immediately remove [the
student] from the premises.” And the Agreement provided that both
the School and the Host Agency reserved rights to terminate a
student’s participation in the clerkship program, stating that the
“Host Agency . . . retains the right to suspend or terminate any
student’s participation at the Host Agency,” and that “[t]he School
may terminate a student’s participation when, in its sole discretion,
it determines that further participation by the student would no
longer be appropriate.”
Under a section titled “Employment Disclaimer,” the
Agreement stated:
The students participating in the program will not be
7
considered employees or agents of the Host Agency or
School for any purpose. Students will not be entitled to
receive any compensation from Host Agency or School or
any benefits of employment from Host Agency or School,
including but not limited to, health care or workers’
compensation benefits, vacation, sick time, or any other
benefit of employment, direct or indirect. Host Agency
will not be required to purchase any form of insurance for
the benefit or protection of any student of the School.
A section of the Agreement titled “No Agency Relationship Between
the Parties” stated that “[n]othing in this Agreement is intended to
or shall be construed to constitute or establish an agency . . .
relationship between the parties.” And with respect to third parties,
the Agreement stated that “neither party intends for this Agreement
to alter in any way its respective legal rights or its legal obligations
to any third party.”
The trial court summarily denied Plaintiff’s motion for partial
summary judgment on the issue of vicarious liability and granted
Defendants’ cross-motion for partial summary judgment on that
issue, stating only that “as a matter of law [Defendants] are not
vicariously liable for any acts or omissions of the medical student.”
The Court of Appeals affirmed the trial court’s ruling. See Statham,
8
371 Ga. App. at 62. But it did so without a majority opinion, as the
lead opinion was not joined by either of the other two judges on the
panel, one of whom concurred in the judgment only, and the other of
whom concurred in part on different grounds and dissented in part.
See id. (Markle, J, authoring the lead opinion, Brown, J, concurring
in judgment only, McFadden, PJ, concurring in part on different
grounds and dissenting in part).
We granted certiorari to determine whether the Court of
Appeals erred in concluding on summary judgment that, as a matter
of law, Defendants could not be held vicariously liable for any
negligent acts or omissions that the medical student may have
committed. And at oral argument, Plaintiff clarified that she
challenges only the trial court’s grant of partial summary judgment
to Defendants on the issue of vicarious liability, not the trial court’s
denial of her own motion for partial summary judgment on that
issue. Accordingly, we limit the scope of our review to the grant of
partial summary judgment to Defendants and do not address
whether the Court of Appeals and trial court erred in denying
9
Plaintiff’s corresponding cross-motion for partial summary
judgment.
2. To prevail on a motion for summary judgment, the moving
party must “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). In assessing whether a genuine issue of
material fact exists, a court must view the evidence presented on
summary judgment “in the light most favorable to the nonmoving
party.” Jones v. City of Atlanta, 320 Ga. 239, 249 (III) (908 SE2d 519)
(2024) (citation and punctuation omitted). We review summary
judgment rulings de novo. See id.
Here, the Court of Appeals’ lead opinion concluded that
Defendants were entitled to partial summary judgment to the extent
that Plaintiff sought to impose vicarious liability on them under
OCGA § 51-1-38, general agency principles, or the borrowed servant
doctrine. See Statham, 371 Ga. App. at 59-61 (a)-(c). We consider
each of these rulings in turn.
(a) We begin by addressing the Court of Appeals’ interpretation
10
of OCGA § 51-1-38, which provides:
(a) No student who participates in the provision of
medical care or medical treatment under the supervision
of a medical facility, academic institution, or doctor of
medicine, as a part of an academic curriculum leading to
the award of a medical degree, shall be liable for any civil
damages as a result of any act or omission in such
participation, except for willful or wanton misconduct.
(b) Subsection (a) of this Code section shall not be
construed to affect or limit the liability of a medical
facility, academic institution, or doctor of medicine.
OCGA § 51-1-38 (a), (b). Based on the plain language of the statute,
the Court of Appeals’ lead opinion concluded that subsection (b) of
the statute “clearly does not impose vicarious liability on the
surgeons for the student’s alleged negligence.” Statham, 371 Ga.
App. at 61 (c). We agree.
When interpreting a statute, we “examine the statute’s plain
language” and read that language “in its most natural and
reasonable way, as an ordinary speaker of the English language
would.” Smith v. State, __ Ga. __, __ (3) (a) (903 SE2d 878) (2024)
(citation and punctuation omitted). “In doing so, we presume that
the General Assembly meant what it said and said what it meant,
11
and we view the statutory text in the context in which it appears.”
Id. (citation and punctuation omitted). “When . . . statutory text is
clear and unambiguous, our interpretive task begins and ends with
the text itself.” State v. Arroyo, 315 Ga. 582, 584 (883 SE2d 781)
(2023).
Here, the clear and unambiguous text of OCGA § 51-1-38
neither imposes vicarious liability on physicians for the conduct of
medical students under their supervision, nor renders physicians
immune from vicarious liability for medical students’ conduct. The
plain language of subsection (a) — which states that “[n]o student
. . . shall be liable for any civil damages” resulting from certain acts
or omissions committed while “participat[ing] in the provision of
medical care or medical treatment” — exempts medical students
from civil liability when they provide medical care under the
particular circumstances set out in the statute. OCGA § 51-1-38 (a).
And the plain language of subsection (b) — which states that
“[s]ubsection (a) . . . shall not be construed to affect or limit the
liability of a medical facility, academic institution, or doctor of
12
medicine” — simply states that the exemption from liability for
medical students in subsection (a) has no impact on the liability of a
medical facility, academic institution, or physician who supervises a
medical student when providing medical care. OCGA § 51-1-38 (b).
Thus, while the statute exempts medical students from liability for
their own acts or omissions under certain circumstances, the statute
provides that supervising physicians remain liable as otherwise
provided by law. See Gilbert v. Richardson, 264 Ga. 744, 753-754 (7)
(452 SE2d 476) (1994) (“Under the doctrine of respondeat superior,
a principal has no defense based on an agent’s immunity from civil
liability for an act committed in the course of employment.”).
(b) We now turn to whether Georgia law provides another basis
for holding a physician who supervises a medical student during a
medical procedure vicariously liable for the medical student’s
negligence. In this case, Plaintiff claimed that the defendant
physicians were vicariously liable for the medical student’s
negligence under two related doctrines — the doctrine of respondeat
superior and the borrowed servant doctrine. We therefore briefly
13
describe the nature and operation of these doctrines before
addressing the Court of Appeals’ application of the doctrines to the
evidence presented on summary judgment.
(i) (A) Georgia law has long recognized “[t]he common-law
doctrine of respondeat superior, which is also known as the ‘masterservant’ rule.” Prodigies Child Care Mgmt., LLC v. Cotton, 317 Ga.
371, 376 (2) (a) (893 SE2d 640) (2023); 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
. . . .”). As we have explained, the doctrine of respondeat superior
allows a plaintiff to “hold a principal [vicariously] responsible for the
negligent conduct of an agent committed in furtherance of the
principal’s goals and within the scope of the principal’s business.”
Doe v. Saint Joseph’s Cath. Church, 313 Ga. 558, 565 (2) (b) (870
SE2d 365) (2022). But an agent’s negligence can be imputed to a
principal under the doctrine of respondeat superior only if the agent
qualifies as a “servant” of the principal, as opposed to, for example,
an “independent contractor.” Compare OCGA § 51-2-2 (making a
14
principal liable for the torts of his “servant”), with OCGA § 51-2-4
(providing that a principal “generally is not responsible for torts
committed by his employee when the employee exercises an
independent business”), and Peachtree-Cain Co. v. McBee, 254 Ga.
91, 91 (1) (327 SE2d 188) (1985) (“OCGA § 51-2-4 is a codification of
the original common law rule of the nonliability of an employer for
the torts of an independent contractor.”).
Under Georgia law, a master-servant relationship exists only
where a principal has a significant degree of control over how an
agent performs his work, see Farmer v. Ryder Truck Lines, Inc., 245
Ga. 734, 737-738 & n.2 (266 SE2d 922) (1980), 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, see Peachtree-Cain, 254 Ga. at 91
(1) (noting that “the proper party to be charged with the
responsibility for preventing the risk, and administering and
distributing it,” is the person who has the “right of control over the
manner in which the work is to be done”). And whether a master15
servant relationship exists is generally a factual question for the
jury to decide based on all the relevant evidence. See Ambling Mgmt.
Co., LLC v. Miller, 295 Ga. 758, 762-763 (2) (764 SE2d 127) (2014)
(noting that “whether a [person] is acting in the capacity as a
servant . . . is generally a question for the jury based on all evidence
provided”); Farmer, 245 Ga. at 738-739 (noting that several
“pertinent factors” may be relevant in determining whether an
agent is a servant).
A principal has a sufficient degree of control over an agent to
establish a master-servant relationship if the principal either
“controls or has the right to control the physical conduct of the
person employed in the performance of th[e] services.” Farmer, 245
Ga. at 737 n.2. And determining 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.” Id. at 738 (distinguishing “the right to control
the time, manner and method of executing the work,” which
16
describes a master-servant relationship, from the mere “right to
require certain results”); RBF Holding Co. v. Williamson, 260 Ga.
526, 526 (397 SE2d 440) (1990) (noting that determining whether a
person is a servant turns on whether the employer had “the right to
direct the time, the manner, the methods, and the means of the
execution of the work” (citation and punctuation omitted)).2
(B) “There are instances, under Georgia law, where one may be
the servant of two masters.” Hoffman v. Wells, 260 Ga. 588, 590 (2)
n.2 (397 SE2d 696) (1990). See U. S. Fid. & Guar. Co. v. Forrester,
230 Ga. 182, 184-185 (196 SE2d 133) (1973) (“Ordinarily, one is not
the servant of two masters, but the courts of this State have
recognized the principle that one may be the servant of two masters
and subject to the demands of both or either.” (citation and
punctuation omitted)). And when it is necessary to determine
2 See also OCGA § 51-2-4 (providing that an employer may be held
responsible for torts committed by a person who would ordinarily be classified
as an independent contractor if the person, like a servant, is “subject to the
immediate direction and control of the employer”); OCGA § 51-2-5 (5) (“An
employer is liable for the negligence of [an independent] 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 . . . .” (emphasis supplied)).
17
whether an agent was acting as a servant of one master or another
on a particular occasion — a situation that often arises “in the
context of the tort doctrine of respondeat superior,” as well as when
determining whether an agent qualifies as an “‘employee’ for
purposes of the workers’ compensation statute” — we have relied on
what is referred to as the “borrowed servant rule” or the “borrowed
servant doctrine.” Summerlin v. Georgia Pines Cmty. Serv. Bd., 286
Ga. 593, 596 (2) (690 SE2d 401) (2010).
In the respondeat superior context, where “vicarious liability
for the acts of servants depends upon the master’s right of control
over the acts of the servants,” the borrowed servant doctrine
addresses the fact that a servant may have more than one master as
a result of being loaned from one employer to another, but that both
masters rarely “have control over the actions of the [servant] at the
same time.” Hoffman, 260 Ga. at 589-590 (2). As we have explained,
the “borrowed servant” doctrine is a “widely recognized exception to
the doctrine of respondeat superior,” under which a master (often
referred to as a “general master”) who “lends his servants to
18
another” master (often referred to as a “special master”) “is not
responsible for any negligence of the servant committed within the
scope of his employment by the other.” Hoffman, 260 Ga. at 589 (2).
See also Summerlin, 286 Ga. at 596 (2) (noting that we had held that
the “borrowed servant rule is [an] exception to [the] tort doctrine of
respondeat superior”); Six Flags Over Georgia, Inc. v. Hill, 247 Ga.
375, 377 (1) (276 SE2d 572) (1981) (referring to an employer who
lends an employee to another as the “general master,” and referring
to an employer who borrows the employee as the “special master”
(citation and punctuation omitted)).
We have explained that, as a general matter, a general
master’s agent should be considered a “borrowed servant” of a
special master if, on the occasion when an injury occurred, (1) “the
special master had complete control and direction of the servant for
the occasion,” (2) “the general master had no such control,” and (3)
“the special master had the exclusive right to discharge the servant.”
Tim’s Crane & Rigging, Inc. v. Gibson, 278 Ga. 796, 797-798 (604
SE2d 763) (2004) (quoting Six Flags Over Georgia, 247 Ga. at 377
19
(1)). See Six Flags Over Georgia, 247 Ga. at 377 (1) (explaining that
courts must focus on the specific “occasion when the injury occurred”
in assessing whether the borrowed servant doctrine’s requirements
are satisfied). And we have established specific rules for applying
the borrowed servant doctrine in cases where a hospital seeks to
avoid vicarious liability for the negligence of a hospital employee
working under a physician’s supervision. See Ross v. Chatham
County Hosp. Auth., 258 Ga. 234, 235 (1) (367 SE2d 793) (1988)
(explaining that a “hospital which seeks to escape liability must
show that” (1) “it has yielded control of its employees who are
assisting in a surgical procedure,” (2) “the employees whose
negligence the hospital seeks to impute to the surgeon are under the
immediate supervision of the surgeon,” and (3) the task which the
employee allegedly performed in an allegedly negligent manner was
one “involving professional skill and judgment,” as opposed to a
“clerical or administrative task[ ] not requiring the exercise of
medical judgment” (citation and punctuation omitted)).
(ii) As applied to this case, the above legal principles establish
20
two conditions that must be satisfied in order for Plaintiff to hold
the defendant physicians vicariously liable under the doctrine of
respondeat superior for any negligence committed by the medical
student. First, Plaintiff must show that, when the injury occurred,
the medical student was acting “in furtherance of the [defendant
physicians’] goals and within the scope of the [their] business.” Saint
Joseph’s Cath. Church, 313 Ga. at 565 (2) (b). See also Quynn v.
Hulsey, 310 Ga. 473, 474 n.2 (850 SE2d 725) (2020) (“[T]he test to
determine if the master is liable [under the doctrine of respondeat
superior] 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.” (citation and punctuation omitted)). Second, Plaintiff must
show that, when the injury occurred, the medical student was acting
in her capacity as a “servant” of the defendant physicians by
establishing that the defendant physicians either “ha[d] the right to
control the [medical student’s] physical conduct” in executing the
work or assumed “control[ ]” over the medical student’s “physical
conduct” in executing the work. Farmer, 245 Ga. at 737 n.2. And in
21
assessing the defendant physicians’ degree of control over the
medical student, “pertinent factors” include whether the defendant
physicians controlled or had the right to control “the time, manner,
and method of executing the work.” Id. at 738.
On summary judgment, Defendants did not dispute that the
evidence, when viewed in the light most favorable to Plaintiff,
showed that the first condition was satisfied — that the medical
student was assisting the defendant physicians in achieving their
surgical goals within the scope of their business. Defendants argued
only that there was no genuine issue of material fact as to the second
condition — whether a master-servant relationship existed between
Defendants and the medical student. And they contended that the
Agreement between the medical school and the defendant medical
practice established as a matter of law that the medical student was
not an agent of Defendants.
In reviewing the trial court’s grant of partial summary
judgment to Defendants on the issue of vicarious liability, the Court
of Appeals’ lead opinion likewise focused on the second condition for
22
establishing vicarious liability under the doctrine of respondeat
superior. See Statham, 371 Ga. App. at 59-60 (a). Specifically, the
lead opinion asserted that “Georgia law is clear that[,] when
considering the relationship between parties, a written contract
controls the terms and scope of that relationship,” and, “where the
contract establishes the responsibility of the parties[,] it also
establishes whether the borrowed servant doctrine or other agency
principles apply.” Id. at 59 (a). And the lead opinion concluded that
“the clear and unambiguous terms” of the Agreement between the
medical student’s school and the defendant medical practice
established that there was no agency relationship between the
medical student and the defendant physicians because (1) the
Agreement “specified that the medical student was not considered
an employee or agent of the practice,” (2) the Agreement stated that
it did not “create any agency, employer/employee, or fiduciary
relationship between the parties,” (3) “[n]o compensation or
employment benefits from the practice were conferred on the
medical student” under the Agreement, and (4) the Agreement
23
vested both the medical school and the medical practice “with the
right to terminate the student’s participation in the program.” Id. at
59-60 (a).
The lead opinion was correct to consider the contract insofar as
it addressed the defendant physicians’ right to control the medical
student’s conduct during Plaintiff’s procedure. It has long been the
law of Georgia that a contract can give rise to a right of control over
an agent that can serve as an independent basis for concluding that
an agent was a principal’s servant, even when the principal did not
in fact assume control over the agent. See Golosh v. Cherokee Cab
Co., 226 Ga. 636, 637-638 (176 SE2d 925) (1970) (“The test to be
applied in determining whether the relationship of the parties under
a contract for the performance of labor is that of employer and
servant, or employer and independent contractor, lies in whether the
contract gives, or the employer assumes, the right to control the time,
manner, and method of executing the work, as distinguished from
the right merely to require certain definite results in conformity to
the contract.” (quoting Fid. & Cas. Co. of New York v. Windham, 209
24
Ga. 592, 593 (74 SE2d 835) (1953)) (emphasis supplied); Macon
News Printing Co. v. Hampton, 192 Ga. 623, 624-625 (15 SE2d 793)
(1941) (noting that determining whether an agent is a servant turns
on “whether the contract gives, or the employer assumes, the right to
control the time, manner, and method of executing the work”
(citation and punctuation omitted; emphasis supplied)). We have
also stated that a “contract between . . . parties is controlling as to
their responsibilities thereunder.” Tim’s Crane & Rigging, 278 Ga.
at 798 (quoting Montgomery Trucking Co. v. Black, 231 Ga. 211, 213
(200 SE2d 882) (1973)). As a result, in cases where there is no
contention that a party in fact assumed control over an agent and a
contract speaks to which party had a right to control the agent, a
contract’s terms could be dispositive in determining whether a party
had the right to control the agent’s conduct. See id. (holding that,
because “the contract between [a general master] and [a special
master] explicitly set[ ] forth each requirement of the borrowed
servant doctrine” and allocated the “risk” between the general
master and the special master as to the “responsibility for the
25
negligence of [a] servant,” “[w]hether or not [the special master] ever
assumed any control or supervision of [an agent, the special master]
acquired the right to do so,” and thus the general master was not
liable for “any negligence of [the agent]” (citation and punctuation
omitted)); Blair v. Smith, 201 Ga. 747, 748 (41 SE2d 133) (1947)
(treating a contract as dispositive of whether a principal had a right
to control an agent because the plaintiff conceded that the principal
“did not assume control of the work specified in his contract with
[the agent]”), overruled on other grounds by Wright Assocs., Inc. v.
Rieder, 247 Ga. 496 (277 SE2d 41) (1981). And determining whether
a contract gives rise to a master-servant relationship requires
careful consideration of whether the contract grants a principal a
right of control that is sufficient to create such a relationship under
the legal standards set out above, not merely on whether the
contract says there is or is not such a relationship. See, e.g., Blair,
201 Ga. at 749-751 (analyzing whether a contract granted a
principal the “right to control the time, method, and manner of
executing the work”).
26
But here the Court of Appeals misapplied the law in focusing
exclusively on the contract presented on summary judgment and
treating it as dispositive of whether the defendant physicians could
be held vicariously liable under the doctrine of respondeat superior.
This is because, as explained above, a master-servant relationship
can exist where a principal either has a right to control an agent’s
conduct or assumes control over the agent’s conduct. While the
contract may have been relevant in determining whether the
defendant physicians had a right to control the medical student,
Plaintiff’s respondeat superior claim was not primarily based on the
defendant physicians’ right of control but instead on their
assumption of control over the medical student. And because the
defendant physicians could have assumed control over the medical
student even if they did not have a contractual right to do so, the
Court of Appeals’ lead opinion erred in treating the contract terms
as dispositive of whether the defendant physicians could be held
vicariously liable.
Here, setting aside whether the defendant physicians had a
27
contractual right to control the medical student and whether the
Agreement provided any support for an inference that the defendant
physicians assumed control over the medical student, the
undisputed evidence, when considered in the light most favorable to
Plaintiff, created a genuine dispute of material fact as to whether
the defendant physicians assumed control over the medical
student’s physical conduct during Plaintiff’s surgery. Specifically,
the undisputed evidence showed that the defendant physicians
instructed the medical student to insert the sponge stick into
Plaintiff’s vagina, visually confirmed that the medical student’s
initial insertion was proper, and directed the medical student to
manipulate the sponge stick as necessary during the surgery.
Because a plaintiff need only show a sufficient group of “pertinent
factors” to establish the existence of a master-servant relationship,
Farmer, 245 Ga. at 738, and because this undisputed evidence could
support a finding that the defendant physicians assumed control
over the manner and method of the medical student’s work, whether
the medical student was acting as the defendant physician’s servant
28
during Plaintiff’s procedure is a jury question that cannot be decided
as a matter of law on summary judgment, see Ambling Mgmt., 295
Ga. at 762-763 (2).3 Accordingly, the Court of Appeals erred in
affirming the trial court’s grant of partial summary judgment to
Defendants on the issue of vicarious liability. 4
3 In analyzing the evidence presented on summary judgment, the Court
of Appeals’ lead opinion emphasized that the defendant practice did not pay
the medical student for her labor. See Statham, 371 Ga. App. at 59-60 (a) (“No
compensation or employment benefits from the practice were conferred on the
medical student[.]”). To the extent that the lead opinion treated that fact as
dispositive, it erred because payment is not a prerequisite to establishing a
master-servant relationship. See Fid. & Cas. Co. of New York, 209 Ga. at 594
(noting that “[p]ayment of wages . . . [is] not necessary to render one a master”
(citation and punctuation omitted)). See also Hoffman, 260 Ga. at 590 (2)
(holding that a nurse in an operating room was a servant of the doctor, rather
than of the hospital, even though the nurse was employed and paid by the
hospital, rather than by the doctor).
4 Although “[c]ontractual interpretation is generally a matter of law to
be decided by the court,” Knott v. Knott, 277 Ga. 380, 381 (2) (589 SE2d 99)
(2003), we need not decide here whether the Court of Appeals’ lead opinion
correctly interpreted the Agreement because, as described above, the
undisputed evidence was sufficient to create a genuine dispute of material fact
as to whether Defendants can be held vicariously liable for any negligence on
the part of the medical student under the doctrine of respondeat superior. To
the extent that the trial court needs to interpret the Agreement in future
proceedings, we remind the court that it is not bound by the interpretation set
out in the Court of Appeals’ lead opinion, which was not joined by a second
judge on the panel, and that, when interpreting the contract, the court should
carefully consider the specific language of the Agreement in the context of the
Agreement as a whole. See Langley v. MP Spring Lake, LLC, 307 Ga. 321, 324
(834 SE2d 800) (2019) (“[I]t is axiomatic that contracts must be construed in
their entirety and in a manner that permits all of the terms contained therein
to be consistent with one another.” (citation and punctuation omitted)).
29
(iii) As noted in Division 2 (b) (i) above, we have set out both
general requirements for applying the borrowed servant doctrine to
relieve a general master of vicarious liability for torts committed by
his servant, as well as specific requirements for applying the
doctrine to relieve a hospital of vicarious liability for torts committed
by hospital employees supervised by surgeons. The Court of Appeals’
lead opinion concluded that “the borrowed servant doctrine d[id] not
apply” to “make the surgeons vicariously liable” for the medical
student’s negligence because the evidence presented on summary
judgment could not support a jury finding that Plaintiff had satisfied
either set of requirements. Statham, 371 Ga. App. at 60 (b)
(concluding that the evidence did not support a finding that the
surgeons had “the exclusive right to terminate the medical student”
or that the medical student’s participation in the surgery “require[d]
a level of professional skill or judgment” (punctuation and emphasis
omitted)).5 Although we agree with the lead opinion’s conclusion —
5 The lead opinion also noted that the medical student was not an
employee of the medical school, and thus that “there was no employment
30
that Defendants could not be held vicariously liable under the
borrowed servant doctrine — we reach that conclusion for a different
reason.
As our description of the borrowed servant doctrine in Division
2 (b) (i) above reveals, in the context of vicarious liability, Georgia
law recognizes the doctrine as a defense to a respondeat superior
claim: the borrowed servant doctrine is an “exception to the doctrine
of respondeat superior” that relieves a general master of vicarious
liability if a special master had the “right of control over the acts of
the servant[ ]” when the injury occurred. Hoffman, 260 Ga. at 589
(2) (emphasis supplied). See also, e.g., Ross, 258 Ga. at 234
(defendant moved for summary judgment, arguing it was “release[d]
from liability under the ‘borrowed servant’ rule” because the
employee was acting as a servant of a special master when the injury
occurred); Brown v. Smith, 86 Ga. 274, 277 (12 SE 411) (1890)
(affirming a trial court’s determination that the plaintiff could not
relationship between the parties for the borrowed servant doctrine to apply
here.” Statham, 371 Ga. App. at 60 (b).
31
recover from a general master for the negligence of a servant
because, when the injury occurred, a special master “had as ample
and complete control over the [servant] as if [the special master] had
originally hired [the servant]”). The parties have not cited, and we
have not discovered, any case in which we have recognized the
borrowed servant doctrine as an independent basis for establishing
a defendant’s vicarious liability for a servant’s acts or omissions.6
6 In Tim’s Crane & Rigging, a bailor’s employee performed negligently
while working for a bailee, and we considered whether the bailor could be held
vicariously liable for his employee’s negligence under OCGA § 44-12-62 (b),
which provides:
If the bailor sends his own agents with the thing bailed, the hirer
shall not be liable for the acts of such agents but shall only be liable
either to the bailor or to third persons for the consequences of his
own directions and for gross neglect.
Tim’s Crane & Rigging, 278 Ga. at 796-797 (quoting OCGA § 44-12-62 (b);
emphasis supplied). We stated that the statute’s “reference to the hirer’s ‘own
directions’ . . . refers to the borrowed servant doctrine.” Id. at 797. And we held that the bailor was entitled to summary judgment because the evidence
established that the bailee had acquired a right to control the employee under
a contract that set out each requirement of the borrowed servant doctrine. See
id. at 797-798.
Although Tim’s Crane & Rigging addressed only whether the bailor had
a defense to a claim of vicarious liability under OCGA § 44-12-62, the Court of
Appeals appears to have interpreted Tim’s Crane & Rigging as establishing
requirements for a plaintiff to recover from a bailee under the statute. See Coe
v. Carroll & Carroll, Inc., 308 Ga. App. 777, 779-782 (1) (709 SE2d 324) (2011)
(considering evidence relevant to the borrowed servant doctrine’s requirements
in assessing whether a bailee could be held liable under OCGA § 44-12-62). We
32
Instead, as explained above, whether a plaintiff can hold a master
vicariously liable for a servant’s acts or omissions has traditionally
rested on the doctrine of respondeat superior. And consistent with
that traditional understanding of vicarious liability, we have
identified the doctrine of respondeat superior, rather than the
borrowed servant doctrine, as the basis for holding a special master
vicariously liable for the acts or omissions of borrowed servants,
who, as the phrase “borrowed servant” implies, are servants of the
special master. See Ross, 258 Ga. at 234, 235 (1) (explaining that
“the borrowed servant rule” allows a general master “to escape
liability,” and that “the negligence of [a borrowed servant is
imputed] to the [special master] under the rule of respondeat
superior” (emphasis supplied)). See also Summerlin, 286 Ga. at 594-need not decide here whether the Court of Appeals correctly interpreted Tim’s
Crane & Rigging because this is not a bailment case proceeding under OCGA
§ 44-12-62. For our purposes, it is enough to note that even if Tim’s Crane &
Rigging is properly interpreted as incorporating the borrowed servant
doctrine’s requirements into OCGA § 44-12-62 as the requirements for
establishing a bailee’s vicarious liability under that particular statute, it did
so only in the context of that statute and did not recognize the borrowed
servant doctrine as an independent basis for imposing vicarious liability on a
special master.
33
596 (2) (explaining that borrowed servants are servants under
Georgia law).7 In other words, a plaintiff who seeks to hold a special
master vicariously liable for a borrowed servant’s conduct cannot
rely on the borrowed servant doctrine but instead must establish the
elements of a respondeat superior claim — that, when the injury
occurred, the borrowed servant was acting as the special master’s
“servant” in furtherance of the special master’s goals and within the
7 The parties cite Hendley v. Evans, 319 Ga. App. 310 (734 SE2d 548)
(2012), a case in which the Court of Appeals purported to reject an argument
that “the borrowed servant doctrine may only be used defensively by a party
seeking to transfer vicarious liability to another party,” not “as an affirmative
theory of recovery.” Id. at 313-314 (punctuation and emphasis omitted). But a
careful reading of the case reveals that the court rejected this argument only
insofar as the defendants contended that the doctrine of respondeat superior
could not render the defendants vicariously liable for the conduct of agents
under their supervision if the agents were borrowed from another employer.
See id. at 314 (rejecting the contention that “a plaintiff injured by the negligent acts of hospital personnel while they were working as borrowed servants of an
operating room doctor has no affirmative cause of action against the doctor
under respondeat superior” because “say[ing] that a plaintiff has no
affirmative cause of action against a negligent actor’s employer [would be]
contrary to the doctrine of respondeat superior,” and the negligence of a
“borrowed servant” could render an employer liable under the “basic principle
of respondeat superior”). In other words, while the Court of Appeals in Hendley
purported to hold that the plaintiff could use the borrowed servant doctrine as
a basis for holding the defendant vicariously liable, the court in fact approved
only the use of respondeat superior for that purpose. To the extent that
Hendley could be construed as authorizing the use of the borrowed servant
doctrine as an independent basis on which to hold a defendant vicariously
liable, rather than as a defense to a respondeat superior claim, we disapprove
that reading.
34
scope of the special master’s business. Because Georgia law does not
recognize vicarious liability claims premised on the borrowed
servant doctrine, Plaintiff cannot hold Defendants vicariously liable
under that doctrine.
3. As explained above, Defendants were not entitled to partial
summary judgment on the issue of vicarious liability because, while
there were no genuine issues of material fact regarding their
vicarious liability under OCGA § 51-1-38 or the borrowed servant
doctrine, the evidence presented on summary judgment created a
jury question as to whether the defendant physicians were
vicariously liable under the doctrine of respondeat superior for any
negligence committed by the medical student during Plaintiff’s
surgery. Accordingly, we reverse the judgment of the Court of
Appeals, which affirmed the trial court’s grant of partial summary
judgment to Defendants on the issue of vicarious liability.
Judgment reversed. Peterson, CJ, Warren, PJ, and Bethel,
Ellington, McMillian, LaGrua, and Pinson, JJ, concur.
35