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[PUBLISH] In the United States Court of Appeals For the Eleventh Circuit

____________________

No. 22-14324 ____________________

RICHARD HICKS, JOCELYN HICKS, Plaintiffs-Appellants, versus GREGORY MIDDLETON, JOHN DOE, I, MARINE TERMINALS CORPORATION - EAST, d.b.a. Ports America,

Defendants-Appellees.

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Appeal from the United States District Court for the Southern District of Georgia D.C. Docket No. 4:21-cv-00003-RSB-CLR ____________________

Before ROSENBAUM, NEWSOM, and ABUDU, Circuit Judges. ABUDU, Circuit Judge: Appellants Richard Hicks and his wife, Jocelyn Hicks (collec- tively, the “Hickses”),1 appeal the district court’s grant of summary judgment in favor of Marine Terminals Corporation - East, d/b/a Ports America (“Ports America”). At issue here, the Hickses brought claims for monetary damages against Ports America after its employee, Gregory Middleton, hit and injured Richard Hicks with his vehicle. The district court ruled that Ports America could not be held vicariously liable as Middleton’s employer because Middleton did not injure Hicks while acting within the course and scope of his employment with Ports America. Therefore, the court granted summary judgment in favor of Ports America.

1 Jocelyn Hicks’s “loss of consortium claim is derivative of [her] spouse’s per-

sonal injury action,” and “[a]ll claims which derive from the personal injuries sustained by a single individual’ [are properly] joined in a single action . . . .” Miller v. Crumbley, 548 S.E.2d 657, 658 (Ga. Ct. App. 2001) (quotations omitted) (citing Stenger v. Grimes, 400 S.E.2d 318, 320 (Ga. 1991)). Accordingly, we do not separately discuss Jocelyn’s claim. Additionally, where the singular, “Hicks,” is used throughout this opinion, we are referring to Richard Hicks alone. Where the plural, “Hickses,” is used throughout this opinion, we are referring to both Richard and Jocelyn. USCA11 Case: 22-14324 Document: 48-1 Date Filed: 06/18/2025 Page: 3 of 15

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After carefully reviewing the record and the parties’ briefs, and with the benefit of oral argument, we vacate the district court’s grant of summary judgment and remand the case for further pro- ceedings. I. BACKGROUND2 This case arose from a collision that occurred on November 7, 2020 at the Port of Savannah (the “Port”) in Savannah, Georgia. The Hickses alleged that, while Richard Hicks was working as a longshoreman3 on the Port, fellow longshoreman Middleton struck him with his personal vehicle as Hicks stood alongside an- other car. The Hickses sought to hold Middleton personally liable and Ports America vicariously liable for Richard’s injuries and other monetary damages. Ports America is one of three stevedoring companies that employs longshoremen to perform cargo operations. The Port where Hicks and Middleton worked is owned, operated, and con- trolled by the Georgia Ports Authority (“GPA”). However, private companies like Ports America perform cargo operations at the Port.

2 Because we review the district court’s grant of summary judgment to Ports

America, we construe all facts and draw all reasonable inferences in favor of the Hickses, noting any disputed material facts. Guevara v. Lafise Corp., 127 F.4th 824, 828 (11th Cir. 2025). Further, as we write for the parties, we recite only those facts needed to explain this decision. 3 “Longshoremen” duties generally involve performing cargo operations on

ships docked at the Port such as loading and unloading cargo. USCA11 Case: 22-14324 Document: 48-1 Date Filed: 06/18/2025 Page: 4 of 15

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Pursuant to a collective bargaining agreement, International Longshoreman’s Association Local 1414 (“ILA 1414”) provides workers to Ports America and the other stevedoring companies. Each working day, members of ILA 1414 hold meetings at a union hall located off-site from the Port, during which longshoremen are hired to work for the stevedoring companies like Ports America. The meetings are held exactly one hour before the time set for cargo operations to begin. After being selected for employment, longshoremen then drive from the union hall to the Port, which takes approximately fifteen minutes. Upon arriving at the Port, longshoremen must present credentials at the security gate showing that they have been dispatched to work that day before they will be allowed on the Port’s premises. An agreement between ILA 1414 and the steve- doring companies expressly prohibits anyone who has not been dis- patched to work that day from coming upon the Port’s premises, and anyone found on Port premises “who is not employed by” one of the stevedoring companies is subject to a fifteen-day suspension. Once within the Port, longshoremen must complete several tasks (the “pre-ship duties”) before they are permitted to begin working on a ship. Among other pre-ship duties that must be com- pleted before cargo operations commence, longshoremen are re- quired to obtain documents called “game plans,” which show the manner and order in which cargo will be unloaded and loaded on the assigned ship. Ports America creates the game plans “in ad- vance so the work can be done more efficiently,” and USCA11 Case: 22-14324 Document: 48-1 Date Filed: 06/18/2025 Page: 5 of 15

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longshoremen usually retrieve the game plans from the “dock house” located nearest to the “cargo berth” (“CB”) where the as- signed ship is docked. There are four or five dock houses at the Port, and the CBs are designated in numerical order from CB1 to CB9 along the edge of the Port closest to the water. Because GPA does not allow individuals to walk on Port premises, those who work at the Port generally must drive their personal vehicles while inside. According to Ports America’s corporate representative, re- trieving the game plans is part of the “whole job” of being a long- shoreman. Nevertheless, longshoremen are not paid for the time it takes them to retrieve the game plans. Indeed, the pay period for longshoremen does not start until the commencement of cargo op- erations, at which point they must have completed all their pre- ship duties. On the day that Hicks was injured, Middleton drove to the Port and arrived approximately twenty-three minutes before cargo operations were set to begin. While driving through the Port to obtain his game plans, Middleton crossed the center line of the roadway, entered the wrong lane of travel, and struck Hicks. The incident occurred behind the dock house located nearest to CB8, but Middleton had actually been assigned to work on a ship docked at CB4. When asked why he had driven past the dock house nearest to his assigned ship, Middleton stated that he thought he had been assigned to a ship docked “somewhere between” CB7 and CB9. He USCA11 Case: 22-14324 Document: 48-1 Date Filed: 06/18/2025 Page: 6 of 15

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testified that he had been driving to the dock house “[f]or the pur- pose of picking up” his game plans when the accident occurred, and he also planned to heat up his lunch while at the dock house. Tests conducted after the incident revealed that Middleton had been driving while impaired by fentanyl and other drugs. Because Middleton never reported to his assigned ship, Ports America did not pay him for any work performed that day. Mid- dleton testified, however, that he had “already been hired” by Ports America when the incident occurred and confirmed that work was the only reason he was at the Port that day. Ports America’s cor- porate representative likewise confirmed that when Middleton “was hired in the [union] hall, he was hired to work for Ports Amer- ica.” II. PROCEDURAL HISTORY The Hickses sued Middleton and Ports America in Georgia state court, and Ports America removed the case to federal court based on diversity jurisdiction. In their complaint, the Hickses sought monetary damages for Hicks’s injuries caused by the colli- sion, which required Hicks to undergo “extensive” hospitalization and rehabilitation, and for his wife’s loss of consortium. They al- leged Middleton was directly liable for their injuries and that, be- cause Middleton injured Hicks while “on duty” for Ports America and in his capacity as an “employee” of Ports America, Ports Amer- ica was vicariously liable. Following discovery, Ports America moved for summary judgment on the ground that Middleton was not acting within the USCA11 Case: 22-14324 Document: 48-1 Date Filed: 06/18/2025 Page: 7 of 15

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course of his employment when he struck Hicks. Specifically, Ports America argued that Middleton never became an employee given that he had not reported to his assigned ship when the incident oc- curred. Next, Ports America asserted that even if Middleton al- ready had been hired to work at the time of the accident, he never actually started working and, thus, was not yet “on the clock.” Al- ternatively, Ports America contended that Middleton departed from the course and scope of his employment when he drove past the ship that he had been assigned to and went to heat up his lunch in an area of the Port where he had “no work-related reason to be.” In response, the Hickses maintained that the issue of when Middleton’s employment with Ports America began was a jury question, the answer to which would determine the scope of Ports America’s liability. In particular, they argued that the evidence weighed as much in favor of finding that Middleton’s employment began when he arrived at the Port, especially because retrieving the game plans was a necessary part of his job responsibilities. They also asserted that Middleton’s frame of mind, i.e., his sincere belief he was headed towards the right ship, supported a finding that Mid- dleton’s presence at the Port was as a Ports America employee when he struck Hicks. The district court ultimately granted Ports America’s sum- mary judgment motion. As to the scope of employment issue, the court determined that there was no set of facts that would support a jury finding that Middleton injured Hicks while acting within the scope of his employment. The court reasoned that the evidence USCA11 Case: 22-14324 Document: 48-1 Date Filed: 06/18/2025 Page: 8 of 15

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established that the incident occurred during Middleton’s com- mute, and, under Georgia law, an employee’s commute is a purely personal activity that does not fall within the scope of employment. The court further found that, even assuming that Middleton’s com- mute had ended when he reached the area near his assigned ship, he still only “engaged in a purely personal matter” by driving to another area of the Port. Moreover, the court rejected the argu- ment that obtaining game plans fell within his “scope of employ- ment,” because Ports America itself never asked or directed Mid- dleton to do so. The court, therefore, dismissed the Hickses’ claims against Ports America, but certified its judgment as immediately appealable under Rule 54(b) of the Federal Rules of Civil Proce- dure. The Hickses timely appealed. III. STANDARD OF REVIEW “We review a district court’s decision on summary judg- ment de novo and apply the same legal standard used by the district court, drawing all inferences in the light most favorable to the non- moving party . . . .” Smith v. Owens, 848 F.3d 975, 978 (11th Cir. 2017). Summary judgment is warranted only if “there is no genuine dispute as to any material fact and the movant is enti- tled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). “A genuine issue of material fact exists ‘if the evidence is such that a reasonable jury could return a verdict for the nonmoving party.’” Edmondson v. Velvet Lifestyles, LLC, 43 F.4th 1153, 1159 (11th Cir 2022) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)). It is the function of a jury to weigh the evidence, make USCA11 Case: 22-14324 Document: 48-1 Date Filed: 06/18/2025 Page: 9 of 15

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credibility determinations, and draw any legitimate inferences from the facts. Id. IV. DISCUSSION On appeal, the Hickses largely repeat the arguments they made at summary judgment—that Middleton’s presence at the Port and his actions, which were aimed at obtaining the game plan, could also support a factual finding in their favor, thus precluding summary judgment in Ports America’s favor. Within that fact- based inquiry, they carve out the specific question of whether Mid- dleton driving to the wrong place within the Port to retrieve game plans was just a slight deviation or complete departure from the course and scope of his employment for purposes of determining liability. Ports America responds that, as an initial matter, sum- mary judgment was proper because the Hickses never actually es- tablished (and the district court never addressed) whether Middle- ton was even an employee at the time of the incident, let alone acting within the scope of his employment. In any event, Ports America argues, the district court’s stated reasons for dismissal— that the incident occurred while Middleton was engaged in the per- sonal act of commuting—support the district court’s decision as well. Sitting in diversity, we apply Georgia law, and we “decide issues of state law ‘the way it appears the state’s highest court would.’” Pincus v. Am. Traffic Sols., Inc., 986 F.3d 1305, 1310 (11th Cir. 2021) (quoting Ernie Haire Ford, Inc. v. Ford Motor Co., 260 F.3d 1285, 1290 (11th Cir. 2001)). Under Georgia law, “an USCA11 Case: 22-14324 Document: 48-1 Date Filed: 06/18/2025 Page: 10 of 15

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employer is liable for a tort committed by [its] employee where the injury is inflicted in the course and scope of employment and not because of some private and personal act of the employee.” Odom v. Hubeny, Inc., 345 S.E.2d 886, 887 (Ga. Ct. App. 1986). To hold an employer liable under a respondeat-superior theory, the em- ployee (1) must be acting “in furtherance of the [employer’s] busi- ness;” and, (2) “must be acting within the scope of his [employer]’s business.” Piedmont Hosp., Inc. v. Palladino, 580 S.E.2d 215, 217 (Ga. 2003). Whether a party has satisfied both elements is gen- erally a question for a jury. See Prodigies Child Care Mgmt., LLC v. Cotton, 893 S.E.2d 640, 646 (Ga. 2023). Summary judgment for the employer is not appropriate un- less “the evidence and all reasonable inference drawn therefrom show that the employee was not engaged in furtherance of the em- ployer’s business, but [instead] was on a private enterprise of the employee’s own.” Id. at 647 (quoting Chorey, Taylor & Feil, P.C. v. Clark, 539 S.E.2d 139 (Ga. 2000)). Stated differently, a court can only dismiss a respondeat-superior claim as a matter of law if there is “plain and undisputable” evidence that the employee was not act- ing to further his employer’s business but rather was acting outside the scope of his employment. Id. (citation omitted). In evaluating an employer’s liability where an employee commits a tort while driving, Georgia courts adhere to “a longstanding general rule that an employee is engaged in a purely personal matter while commuting to . . . work,” thus precluding li- ability against the employer for torts arising during the employee’s USCA11 Case: 22-14324 Document: 48-1 Date Filed: 06/18/2025 Page: 11 of 15

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commute. Centurion Indus., Inc. v. Naville-Saeger, 834 S.E.2d 875, 878–79 (Ga. Ct. App. 2019). An employer likewise cannot be held liable under Georgia law where an employee deviates from a “nor- mal route” and completely departs from the scope of employment to engage in a purely personal pursuit like driving to a restaurant on a lunch break. See Elliot v. Leavitt, 178 S.E.2d 268, 274 (Ga. Ct. App. 1970) (explaining that an employee’s complete departure from the scope of employment will exonerate an em- ployer from liability as a matter of law). However, [w]here the evidence shows that the employee was not taking the shortest or most direct route for the performance of the duties of his employ- ment, . . . whether the deviation was so substantial as to constitute a departure from the employment, or whether he was nevertheless acting within the scope of his employment, is generally a question of fact for the jury. Davis Gas Co. v. Powell, 232 S.E.2d 258, 260 (Ga. Ct. App. 1976); see also Prodigies Child Care Mgmt., 893 S.E.2d at 653 (Peterson, P.J., concurring) (“[T]he question of when mid-commute work-related activity rises to the level of scope and furtherance will almost al- ways be for a jury to decide.”). In the Hickses’ case, the evidence in the record, Georgia law, and the summary judgment standard all mandate that the ques- tions of (1) whether Middleton was acting in furtherance of Ports America’s business, and (2) whether Middleton was acting within USCA11 Case: 22-14324 Document: 48-1 Date Filed: 06/18/2025 Page: 12 of 15

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the scope of his employment be presented to a jury. Both elements of the Hickses’ respondeat-superior claims are generally jury ques- tions under Georgia law, and the evidence in this case is not “plain and undisputable” such that those issues were proper for resolution at the summary judgment stage. 4 See Prodigies Child Care Mgmt., 893 S.E.2d at 646–47 (citation omitted). Regarding the first element of the Hickses’ respondeat-supe- rior claims, a factual dispute exists as to whether Middleton injured Hicks while acting “in furtherance of” Ports America’s business. See Piedmont Hosp., Inc., 580 S.E.2d at 217 (citations omitted). On one hand, a jury could agree with Ports America that Middleton had not yet begun furthering Ports America’s business when the incident occurred. However, reviewing the evidence in the light most favorable to the Hickses, which we must, also supports a rea- sonable conclusion that Middleton was “on the clock” as soon as he set foot on the Port or, at the very least, when his intention was to get the game plan and he thought he was headed in the right direction. See Edmondson, 43 F.4th at 1159. Specifically, given the unique circumstances of working at the Port, the issue of whether and when Middleton’s commute ended is anything but “plain and undisputable.” Prodigies Child Care Mgmt., 893 S.E.2d at 647 (citation omitted). The evidence does not

4 Additionally, because the district court did not decide whether Middleton

qualified as a Ports America employee at the time of the incident in the first instance, we assume without deciding that Ports America employed Middle- ton at the time of the incident. USCA11 Case: 22-14324 Document: 48-1 Date Filed: 06/18/2025 Page: 13 of 15

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compel a conclusion either way, but it would not be unreasonable for a jury to infer that Middleton’s commute ended when he ceased driving on public roads, passed through the security gates at the Port, and entered an area where only individuals who were desig- nated to work were allowed to be present. Even assuming that Middleton’s commute continued once inside the Port, a jury could reasonably find that, at the point he headed to pick up his game plans—a task that clearly is part of his pre-ship duties rather than “some private and personal act,” Odom, 345 S.E.2d at 887—he was acting “in furtherance of” Ports America’s business such that his commute concluded, Prodigies Child Care Mgmt., 893 S.E.2d at 647 (citation omitted). Indeed, the evidence reflects that Ports America created the game plans “in advance so the work can be done more efficiently,” and that longshoremen were required to drive to pick up their game plans because GPA did not allow individuals to walk to and from different areas on Port premises. Based on such evi- dence, it would not be unreasonable for a jury to conclude that Ports America benefited from Middleton driving to pick up his game plans such that his commute concluded at the point he began performing the pre-ship duty and that the incident occurred while he acted “in furtherance of” Ports America’s business. Piedmont Hosp., Inc., 580 S.E.2d at 217 (internal quotation marks and citations omitted). As to the second element of the Hickses’ respondeat-superior claims, a factual dispute likewise exists about whether Middleton injured Hicks while acting “within the scope of” his employment with Ports America. See id. (internal quotation marks and citation USCA11 Case: 22-14324 Document: 48-1 Date Filed: 06/18/2025 Page: 14 of 15

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omitted). Similar to the issue of whether Middleton injured Hicks while furthering Ports America’s business, a jury could reasonably infer from the evidence showing that longshoremen are required to obtain game plans but prohibited from walking on Port premises that the act of driving to retrieve the game plans fell within the scope of Middleton’s employment. Drawing all legitimate infer- ences in favor of the Hickses, a jury could find in the Hickses’ favor with respect to both elements, thus setting the factual basis for a legal analysis on the vicarious-liability issue. See Edmondson, 43 F.4th at 1159. Moreover, the evidence reflects that, even though Middle- ton was in the wrong area of the Port when the incident occurred, he was not there to engage in some “private enterprise” of his own, but instead because he sincerely, albeit mistakenly, believed that his game plans were located there. See Prodigies Child Care Mgmt., 893 S.E.2d at 647 (citation omitted). Whether his mistaken belief concerning the location of his game plans resulted in a deviation “so substantial as to constitute a departure from [his] employment” remains “a question of fact for the jury.” Davis Gas Co., 232 S.E.2d at 260. Because the evidence in this case “is such that a reasonable jury could return a verdict” in favor of the Hickses’ respondeat-supe- rior claims, the district court erred in granting summary judgment to Ports America. Edmondson, 43 F.4th at 1159 (quotation marks and citation omitted). USCA11 Case: 22-14324 Document: 48-1 Date Filed: 06/18/2025 Page: 15 of 15

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V. CONCLUSION In light of the foregoing, we vacate the district court’s entry of summary judgment in favor of Ports America and remand this case for further proceedings. VACATED AND REMANDED.