*1 рart; For part; reversal in and remandment— affirmance PORITZ, COLEMAN, LONG, Chief Justice and Justices VERNIERO, LaVECCHIA, ZAZZALI and ALBIN —7.
Opposed—None.
COLEMAN, J., concurring in judgment. the Court’s separately that, I write express although the view some Fourth opinion Amendment discussion in the not Court’s disposition essential to the appeal, this I nonetheless concur judgment. the Court’s joins opinion.
Justice Verniero in this CARTER, WIFE, DAVID CARTER AND DONNA HUSBAND AND PLAINTIFFS-RESPONDENTS, REYNOLDS, v. ALICE F. DE FENDANT,STEVENS, FLUHR, CHISMAR, ALVINO & SCHECHTER, C.P.A., DEFENDANT-APPELLANT. Argued February November 2002 Decided 2003. *3 (Gercke, appellant Stephen argued R. the cause Dumser Dumser, attorneys; Sierzega, Mr. Dumser & Shoemaker brief). Sierzega, P. on the Ronald (Tomar argued respondents Sklarsky H. the cause Alan Graziano, attorneys). Jacoby Kaplan & O’Brien opinion wаs delivered the Court LONG, J. determine whether the appeal, are called on to this we hold superior may be invoked to an em- respondeat
doctrine of employee. vicariously of an More for the tort ployer liable *4 the automobile asked to decide whether particularly, we have been employer to required by her who negligence employee, was visits, subjected mandatory the on client personal use her car employee was on an accident when the employer to for Applying well-established way from a client’s location. her home law, have concluded it does. principles of our we
I Appeñate The facts of the in case are detañed Division Reynolds, N.J.Super. decision. Carter 783 A.2d (App.Div.2001), granted, 172 appeal leave to N.J. A.2d repeat only necessary disposition. We those that axe to our Reynolds operator Defendant Alice was the of a owner vehicle Carter, 15,1997, Belmar, plaintiff, January that struck in David on accident, Jersey. Reynolds, New At the time who resided Brielle, Jersey, employed by in accounting New was firm of Fluhr, (the Stevens, Chismar, Sehechter, CPA, firm), Alvino & Neptune, Jersey. located New firm, Reynolds non-professional, At the a part-timе employ- was who responsible ee conducted detaü for work auditors. She was verification, checking, preparation of bank reconcilia- job required office, Neptune tions. Her to in the her work firm’s Alvino, firm, also partner to visit clients. Vincent a in the Reynolds spent testified that approximately sixty seventy per- to Neptune twenty-five cent her time the firm’s office and to thirty percent at client locations. was There no office car avaü- Reynolds; thus, able to required she was to her own use vehicle travel, mileage with business reimbursed firm under the (IRS) Internal Revenue prevailing Service’s then allоwance of 31/é per respect reimbursement, cents mñe. With to travel Alvino that, rules, Reynolds testified with accordance IRS could mileage assignment claim from the to office the client and from the client assignment traveling to back the office and the event that she home, was from it mileage be would from her home to or the client from the office to the client, closer, whichever was and that would also hold true for the return If she was trip. traveling get from the client home, back she would the shorter distance of the mileage from client to home or the client to the office. respect billing, days Reynоlds With on her traveled from client, begin billing home she would when she arrived at the days client’s destination. On the directly that she went home client, meeting after stop bfiling with she would when she left client, actually not when she arrived at If home. she had to *5 client, bill for meeting she would after with to the office return to the firm. travel time her at, firm, spent morning Reynolds day question,
theOn Reynolds spent the location. Deal to a client traveled to and then that she was working in Deal. She testified day remainder Neptune, but that she Deal to mileage from reimbursed 4:29 approximately At her travel time. paid wages for was not home, the traveling from Deal to her Reynolds was p.m., when occurred. accident negligence 3, 1997, filed an automobile Carter November
On Later, com- filed an amended Reynolds. Carter against action defendant, Reynolds was alleging that adding firm as a plaint the accident servant, agent of the firm when employee, and/or employment. scope in the of her she was occurred because filed summary judgment and Carter filed a motion The firm motion, leaving granted the firm’s court The trial a cross-motion. motion in the case. On Carter’s defendant Reynolds as the sole trial court deter- precedent, new based on for reconsiderаtion fact, her was, acting within Reynolds mined that thus, granted Carter’s him and employment when she struck respondeat respect to summary judgment with partial motion for liability. superior order, interlocutory appeal the for leave to
The firm moved
Appellate
published opinion,
granted.
In a
motion was
which
summary judg
grant
partial
trial court’s
affirmed the
Division
acting within the
Carter,
Reynolds was
reasoning that
ment to
under the
making the firm liable
employment, thus
scope of her
Carter,
N.J.Super. at
supra, 345
superior.
respondeat
doctrine of
for leave to
before us
firm then moved
The
Ill
Although
law,
general
as a
liability
rule of tort
must be based on
fault,
respondeat
personal
superior
doctrine of
recognizes a
liability principle pursuant
vicarious
to which a master will be held
liable in
wrongful
certain cases for the
acts of his servants or
employees.
Keeton,
al.,
PageW.
Prosser and Keeton on the
et
Law
4,
Torts
21-23,
(5th
§§
ed.1984);
69 at
499-501
Rhett B.
of
Franklin, Pouring New Wine into an Old Bottle: A Recommen
Determining Liability
dation
Employer
an
Respon
Under
of
Superior,
deat
570,
(1994).
39 S.D.L.Rev.
572
The theoretical
respondeat
underpinning of the
superior has been
doctrine of
described as
expects
follows: that one who
to derive a benefit or
advantage
performed
from an act
on his behalf
another must
any
answer
injury
person may
that a third
sustain from it.
Solitare,
Winkelstein v.
38, 40,
(1942)
129 N.J.L.
Under can be found negligence liable for the of an causing injuries to third occurrence, acting if, employee was at the time of parties, Toys ‘R’ employment. Lehmann scope of his or her within (1993) Us, Inc., 587, 619, (quoting Restate A .2d445 N.J. (1958)). (Second) § To establish a master’s Agency ment (1) servant, prove that a plaintiff a must of his for the acts (2) act of relationship that the tortious existed master-servant employment. Those scope of that within the the servant occurred legal by different concepts governed entirely, distinct are two relationship. on the nature The former focuses principles. exists, inquiry relationship no further need If no master-servant relationship qua non sine the master-servant place tаke because See, Wright v. superior. e.g., respondeat the invocation of (observing that State, A.2d 443 169 N.J. of master- superior is based on existence respondeat doctrine exists, margins are relationship its relationship). If such a servant inquiry. Restatement subject of the (Second) § Agency 228 comment *7 A. relationship. Like turn first to the master-servant We states,1 220 of the recognize we section forty-four our sister of (Second) for determin Agency as the touchstone of Restatement 778 A.2d Wright, supra, 169 N.J. ing is a servant. who 117, 131-32, Petullo, A.2d 977 443; 153 N.J. Mavrikidis provides: Section (1) in affairs of another services the is a employed perform A servant persоn of the services conduct in the to the performance and who with respect physical right subject or to control. to the other’s control is (2) determining acting another is a servant or independent one whether among following are considered: facts, other’s, matters of the contractor,
(a) agreement, exercise over may the master which, of control by the extent work; of the the details (b) engaged or in a distinct occupation is or not the one employed whether business; cases). (Second) (collecting Agency § 220 See Restatement (c) the kind of with reference to whether, the work is occupation, locality, done under the direction of the or usually without employer by specialist supervision; (d) skill required particular occupation; (e) whether the or the workman employer instrumentalities, tools, supplies doing and the of work for the place work; person (f) length of time for which the is person employed; (g) job; the method of whether the time or payment, by by (h) regular whether or not the work is a part business the employer; (i) creating whether or not the believe parties are the relation of they master servant; (j) whether the is or is not in business. principal (Second) (1958).] Agency § [Restatement jury charge regarding Our model the definition of a servant is identical to Restatement section 220 with the addition of one line: may other reasonably “[S]uch factors as be considered in deter- mining whether the has right control or to control the (Civil) (June person employed.” 4.22(A) Jury Charges § Model 1979) added). intimates, (emphasis charge by As that “control master over the is servant the essence of the master-servant relationship on which the respondeat superior doctrine of is Wright, supra, based.” (quotation 169 N.J. at omitted); (“The Keeton, marks and citation supra, § see 70 at 501 traditional definition of a person employed servant is that he is a perform another, services the affairs of physical whose performance controlled, conduct in the of the service is or is subject control, right added) to a (emphasis the other.” (footnote omitted)).
B. Once relationship established, the master-servant it is neces- sary question to decide the particular of whether the tortious place conduct took within of that relation- *8 ship. Proof employer-employee that the relationship exists does not, itself, in and of create an given inference that a act done scope employment. was within the of Rеstatement (Second) (1958). Agency § 228 comment b of commonly
“Scope employment” principle, of is a cited but its easily contours are not defined. highly This indefinite which sometimes is varied “in the course of phrase, with meaning vagueness is so devoid of in itself that its has of employment,” very been permitting degree in
value a desirable of in It is no decisions. flexibility obviously more than a bare formula to cover the acts of unordered unauthorized charge servant for which it is found to be to with as master expedient liability, well as to exclude other acts for which it is not. It refers to acts which those are so with what do, connеcted the servant is to and so closely employed fairly regarded though incidental to that as it, methods; be even reasonably they may carrying objectives ones, of out the quite improper employment. § 70 at see Di [Keeton, 502; 159, 169, Cosala N.J. supra, Kay, (1982) (“The of is a formula standard, scope employment concededly imprecise, designed generally to delineate which unauthorized acts of the can be servant (citation omitted)).] charged to the master.” assessing factors that Some courts have considered when scope employment employment, of include: “the nature of the employee, duties of the in whether accident occurred job-related function, fulfilling course of some it or whether oc during trip personal employee.” Christopher curred a to the J.D., Annotation, Vaeth, Employer’s Liability Negligence of Automobile, Employee Driving His or Her Own 27 A.L.R.5th 174, 174 states,2 Jersey, scope employment
In New as in most other subject analysis to under Restatement 228 and sections which provide part employee’s in relevant conduct falls within scope employment if:
(a) it is of the kind he is employed perform; (b) it occurs within the authorized time and substantially space limits; (c) it is a actuated, mastеr, at least serve the part, by purpose (2) a if Conduct of servant is not within the it is different from that or authorized, limits, kind far the authorized time or beyond space too little actuated to serve the master. by purpose (Second) cases). Agency (collecting §§ 228, See Restatement *9 412 (1958).] (Second) Agency § 228
[Restatement of provides: 229 Restatement section (1) general of conduct must be the same To be within the of the employment, scope to conduct authorized. authorized, as that or incidental the nature (2) although determining not is never- authorized, or not the conduct, whether to within the to conduct authorized as be so similar tо or incidental the theless following to considered: matters of fact are be of scope employment,
(a)
servants;
is one
done
such
by
whether or not the act
commonly
(b)
act;
of the
time,
place
purpose
(c)
master and the servant;
relations between the
previous
(d)
between
which
business of the master is apportioned
the extent to
servants;
different
(e)
if within the
or,
act is outside the
of the master
whether or not the
enterprise
to
servant;
has not been entrusted
any
enterprise,
(f)
to
that such an act will be done;
or not
master has reason
expect
whether
(g)
authorized;
act
to the act
done
similarity
quality
(h)
is
has been
or not the
which the harm done
instrumentality by
whether
servant;
furnished
the master to the
(i)
accomplishing
of
an autho-
of
from the normal method
extent
departure
result;
rized
(j)
or not the act is
criminal.
seriously
whether
§
Ins. Co. v. United
678
[Id.
States,
see Government
229;
F.Supp.
Employees
(D.N.J.1988) (noting
456
that New
follows Restatement
454,
Jersey
approach
same);
applying
91
at
Cosala,
Di
N.J.
of
scope
employment analysis
supra,
guide
(using
of
c.
“going
“coming
to” or
from”
Generally, an
who
acting
place
employment
is not considered to be
his or her
Healey,
Mannes v.
306 N.J.Su
scope
employment.
within the
(citations omitted).
per.
351, 353-54,
(App.Div.1997)
There going coming to the exceptions compensation rule. Those are also rooted in workers’ See, e.g., Larson’s law. engrafted onto tort but have been law 15.05, Thus, 14.05, §§ 16.02 Compensation Law Workers’ involving apply to a situation has been held to respondeat superior (1) special engaged in a errand employee is commuting when: (2) behalf; requires employer employer’s on the or mission that the personal vehicle to work so his or her employee tо drive (3) tasks; may be used for work-related vehicle 354-55, Mannes, 703 A.2d supra, N.J.Super. at is “on-call.” omitted). (citations exceptions cases in purpose” cover so-called “dual. Those negligence, he or she can be which, employee’s at the time of the along with a employer serving an interest of the said to be 342, 351, Wallace, 396 A.2d Gilborges v. 78 N.J. personal interest. Jersey adopted purpose has dual (noting that New employer liability when em exception, provides which basis his or her furthering employer’s business as well as ployee is interests). exceptions to the It makes sense that those private ordinary coming commutation going rule exist. Unlike interest, really the noted no each of which has *11 a employee’s actions and exceptions some control over involves by employer, squarely reaped thus palpable benefit to be liability construct of back into the vicarious placing such conduct the Restatement. required-vehicle exception described
This case involves
Mannes,
recognized
exception was
but
supra,
that
above.
accident,
the time of the
ultimately
inapplicable
held
because at
particular
require
employee to use a
emрloyer did not
355,
It
N.J.Super.
the performance run work-related errands. Ubid.] Carr, 421, A.2d 471 175 N.J. v. See also O’Toole backdrop for is the exception). required-vehicle That (recognizing inquiry. our
IV
relationship plainly existed between
A master-servant
Further,
concluded
Appellate
Division
Reynolds
firm.
and the
time on the
one-third of her work
Reynolds spent
because
clients;
have her
requirеd
the firm to
was
visiting firm
road
activities;
returning
actually was
and
for such
car available
own
accident,
came within
she
visit at the time
from a client
coming rule outlined
going exception to the
required-vehicle
Carter,
N.J.Super, at
supra, 345
applied
Marines
Pfender.
74,
agree.
narrower than (1995). There, the Connors, A.2d 423 339 Md. Oaks traveling on personal vehicle required to have a was defendant Oaks, supra, 660 A .2d employer’s stores. job between his his way to a work on his involved in an accident He was 425. employer was argued that the plaintiffs assignment, id. at transporting a vehicle was vicariously defendant liable because have available required him to job *12 site that the The intermediate employment, id. at 427. of his use in the course 525, Oaks, Md.App. agreed. Connors appellate court 245, A (finding employer vicariously .2d liable under respondeat superior employee’s negligent operation of his personal commuting vehicle while employer to work when re quired employee bring personal fulfill job- his vehicle to work to rev’d, responsibilities), related 339 Md. Maryland Appeals Although Court reversed. recognizing required-vehicle exception acknowledging the em
ployer
employee
directed the
to have a vehicle available for work-
tasks,
related
employee
Oaks held that because the
was neither
actually performing
advancing
a work-related
nor
employ
task
his
purposes
accident,
er’s business
at the time of
exception
Oaks,
apply.
did not
supra,
Oaks was regarding wide of the mark control. When an employer requires vehicle, personal to use a it meaningful exercises control over the method of the commute compelling to foreswear carpooling, the use of walking, public transportation, just being dropped or off at work. *13 Konradi, (finding employer 1211-12 that supra, 919 F.2d at See because, among substantially employee’s commutе oth- controlled things, required employee personal his vehicle er use (i.e., bus, train, forms commutation or car instead of other of pooling)). question, Reynolds actually had made an off-site day
On the in returning in her and was home from the off-site location visit car required was to use her car for when the accident occurred. She a it purpose visit. had dual insofar as the Her commute therefore Moreover, Reynolds and firm. the served of both the interests requirement Reynolds firm’s that use her car eliminated alternate Thus, the firm to the transportation. means of is liable Carters superior Reynolds’ use respоndeat the of because under doctrine employer’s personal her automobile to advance her business of required-vehicle exception to purpose, the dual interests fell -within coming placed squarely her both the going the rule and within and relationship employment the of her at the inquiry. Obviously of this is fact-intensive time the accident. excep- every plaintiff required-vehicle invokes in which a the case rule, or must going coming he she establish that tion the fact, provided by employer, required the vehicle to be question. day on the
V Although need not comment on Carter’s alternative we Reynоlds “special or mission” for contention that was on a errand occurred, firm we add these observations. when the accident margins. special exception fairly has well-defined The mission having on his When an time and limits identifiable employee, space employment, journey be makes an which would not covered under normally off-premises journey brought going coming of within the course rule, may usual be making journey, or the fact that trouble and time employment by making urgency circum- it in the inconvenience, hazard, or particular special integral of the to be as an stances, substantial viewed sufficiently part itself service itself. State State, Police, Div. [Carberry N.J.Super. 114, 120, (App.Div.) (quoting 1 Arthur The Workmen’s Law Larson, Compensation (1990)), (1995).] § 16.11 at denied, 141 N.J. 4-204 A.2d 1193 certif. “special” exception very least, aspect requires, at the ordinary perform an act outside confines of job description employer. his or her at the behest of the That simply apply standard not present- does the circumstances here *14 ed.
VI Alternatively, adopt contends Carter that we should the broad enterprise liability theory respondeat that is the standard superior Hinman, 188, in supra, Cal.Rptr. California. 88 471 990; Huntsinger, supra, P.2d at Cal.Rptr. at Enterprise 99 668. nothing originatеd is It new. outside the law of in torts pure compensation form in the workers’ schemes enacted England and the States turn century. United around the of the Gregory Keating, Theory Enterprise Liability C. and 1285, Liability, (2001); Common Law Strict 54 Vand. L.Rev. 1287 Co., 54, 60, accord Ricciardi v. Damar Prods. 45 N.J. 211 A.2d347 (1965) (recognizing underpinning compensation of workers’ scheme to enterprise be belief that on behalf which is acting “inevitably should absorb losses that predictably are an However, operations”). noted, incident of its as scholars have eliminating requirement compensation, fault in workers’ against “law of a accidents” became “house divided itself.” Id. аt Entirely 1290. separate governed accident, standards the same depending on party whether or an innocent third was injured. Thus, according commentators, legal to the birth of to, did, workers’ compensation was bound and in fact initiate a Ibid, revolution in the common law of (citing torts. Jeremiah Smith, Acts, Sequel Compensation to Workmen’s 27 Harv. L.Rev. (1914)). 235 enterprise What occurred was theory that the ex pressed compensation “spread workers’ back” into the law of compensation torts as imported workers’ notions were into that (footnotes omitted). Thus, field. Id. at 1287-88 enterprise liability
419 every respondeat suрerior inquiry degree. to It is some informs distinguishes approach one articulation breadth from another. “ proper formulation states that ‘modern
The California is not or fault liability of master his control basis of vicarious ” Huntsinger, supra, 99 enterprise.’ his but the risks incident to 188, Hinman, supra, Cal.Rptr. 88 471 Cal.Rptr. at 668 (quoting “ 990). words, by the torts of P.2d losses caused ‘[t]he at other practical matter are sure to occur employees, which as a enterprise, placed upon are that enter employer’s conduct ” Ibid. itself, doing (quoting prise required as a cost of business.’ Hinman, supra, Cal.Rptr. 188, (quotation P.2d 471 at 990 88 omitted)). However, by employ commutation we note that when concerned, required is provide ees their own vehicles who are actually required-vehicle rule identical California supra, Cal.Rptr. Huntsinger, (citing See exception. Bd., 814, Comp. Appeals Cal. Smith v. Workmen’s Cal.2d bank) (“[I]n (1968) (in day Rptr. this of a 447 P.2d coming going highly society we cannot cast the rule motorized who, employer, cloak the shoulders of the protective as over *15 the advantage, employee that the furnish car on his own demands facts, job.”)). may under consideration of the It be that different no be warranted. We see the broader California rationale would such a course of action. reason in this case to undertake
VII judgment Appellate of Division is affirmed. The LaVECCHIA, J., concurring. join judgment its narrow
I in the of the Court and am able to “going- “required-vehicle” exception applies to holding that liability employer this under a and-coming” imposes rule on respondeat superior theory. any eschews Importantly, Court liability theory is enterprise that “the reliance on broad Ante respondeat superior in California.” standard for 469; Carr, 815 A see .2d at also O’Toole N.J. A.2d wisely adopt The Court declines to a standard that effectively employer abandons consideratiоn of control in the context of automobile accidents.
I agreeing hesitation in have no with the Court’s assessment employer here that the exercised control and derived benefit from requiring its to her motor day have vehicle at work that her, vehicle, sending perform that to an site to alternate employer liability duties. Her thus must bear vicarious for the way accident assignment. that occurred on home her from that typical employee’s end-of-workday This was not the commute worksite; regular home from her it was a return home from assigned off-site work In that setting, duties. the cessation of workday signal did not employer’s duties the end of the control derived benefit from the condition of that re- quired promotion the use of her employer’s vehicle interest. said, read, fairly opinion
That the Court’s does not stand for the proposition every required-vehicle exception invocation subject shall an to for an automobile accident occurring during employee’s surely commutation. It has not been, decision, and is not as a result of this of this law Court types employees that all by personal who commute to work vehicle, sent, may vehicle, and who be their assignment via own on time, from time every day to nоw commute to and from their regular workplace employer. “under the control” of their broadly Court has never considered sweeping application such required-vehicle exception going-and-coming to rule. The societal application cost and benefit of such an across-the-board required-vehicle exception employees may all who have to may commute to work their own motor vehicle and who have to occasionally use their vehicle in work-related business would re- quire scrutiny,' today careful but not and not on these facts. question day, Because that join left for another I able am *16 disposition. Court’s Justice PORITZ and Justices For affirmance —Chief LONG, VERNIERO, LaVECCHIA, COLEMAN, ZAZZALI and ALBIN —7.
Opposed —None. A.2d O’TOOLE, JR., H/W, PLAIN CHARLES ADRIENNE O’TOOLE AND TIFFS-APPELLANTS, AND AND SA CHRISTINE O’TOOLE MINORS, O’TOOLE, BY AND THROUGH THEIR FATHER RAH LITEM, O’TOOLE, JR., PLAIN AND GUARDIAN AD CHARLES (FICTITIOUS TIFFS, JOHN DOE v. PAUL J. CARR AND/OR NAME), DEFENDANT-APPELLANT, AND MURRAY AND (FICTITIOUS NAME), DE JOHN DOE # 1-5 CARR AND/OR FENDANT-RESPONDENT,BOROUGH OF TUCKERTON (FICTITIOUS NAME), KATHERINE DOE # 6-15 JOHN AND/OR (FICTITIOUS NAME), MO DOE TOYOTA CARR JANE AND/OR DOE CREDIT CORPORATION JOHN CORPORA TOR AND/OR (FICTITIOUS NAME), TOWNSHIP OF EAGLESWOOD TION (FICTITIOUS NAME), DOE # 16-20 RICHARD JOHN AND/OR NAME) (FICTITIOUS RICHARD ROE COMPANY ROE AND/OR (FICTI NAME) (FICTITIOUS ROE, RICHARD INC. AND/OR NAME) INDIVIDUALLY, JOINTLY, SEVERALLY TIOUS ALTERNATIVE, THE IN DEFENDANTS. AND/OR February Argued 2002 Decided 2003. November