Lead Opinion
In this аppeal, we are called on to determine whether the doctrine of respondeat superior may be invoked to hold an employer vicariously liable for the tort of an employee. More particularly, we have been asked to decide whether the automobile negligence of an employee, who was required by her employer to use her personal car on mandatory client visits, subjected the employer to liability for an accident when the employee was on her way home from a client’s location. Applying well-establishеd principles of our law, we have concluded that it does.
The facts of the case are detañed in the Appeñate Division decision. Carter v. Reynolds, 345 N.J.Super. 67,
At the firm, Reynolds was a non-professional, part-time employee who conducted detaü work for auditors. She was responsible for the verification, checking, and preparation of bank reconciliations. Her job required her to work in the firm’s Neptune office, and also to visit clients. Vincent Alvino, a partner in the firm, testified that Reynolds spent approximately sixty to seventy percent of her time at the firm’s Neptune office and twenty-five to thirty percent at client locations. There was no office car avaüable to Reynolds; thus, she was required to use her own vehicle for travel, with business mileage reimbursеd by the firm under the Internal Revenue Service’s (IRS) then prevailing allowance of 31/é cents per mñe. With respect to travel reimbursement, Alvino testified that, in accordance with IRS rules, Reynolds could
claim mileage from the office to the client assignment and from the client assignment back to the office and in the event that she was traveling from home, it would be the mileage from her home to the client or from the office to the client, whichever was closer, and that would also hold true for the return trip. If she was traveling from the client back home, she wоuld get the shorter distance of the mileage from the client to home or the client to the office.
With respect to billing, on the days Reynolds traveled from her home to the client, she would begin billing when she arrived at the client’s destination. On the days that she went directly home after meeting with a client, she would stop bfiling when she left the client, not when she actually arrived at home. If she had to return to the office after meeting with a client, she would bill for her travel time to the firm.
On the day in question, Reynolds spent the morning at, the firm, and then traveled to Deal to a client lоcation. Reynolds spent the remainder of the day working in Deal. She testified that she was reimbursed for the mileage from Deal to Neptune, but that she was not paid wages for her travel time. At approximately 4:29 p.m., when Reynolds was traveling from Deal to her home, the accident occurred.
On November 3, 1997, Carter filed an automobile negligence action against Reynolds. Later, Carter filed an amended complaint adding the firm as a defendant, alleging that Reynolds was an employee, servant, and/or agent of the firm when the accident occurred because she was in the scope of her employment.
The firm filed a motion for summary judgment and Carter filed a cross-motion. The trial court granted the firm’s motion, leaving Reynolds as the sole defendant in the case. On Carter’s motion for reconsideration based on new precedent, the trial court determined that Reynolds was, in fact, acting within the scope of her employment when she struck him and thus, granted Carter’s motion for partial summary judgment with respect to respondeat superior liability.
II
The heart of the firm’s argument is that the Appellate Division’s decision represents a fundamental change in the law regarding an employer’s vicarious liability because the court jettisoned the element of control, which the firm maintains is a nеcessary aspect of the vicarious liability calculus. Carter counters that the Appellate Division merely recognized a well-established exception to the “going and coming” rule carved out for cases in which an employer requires an employee to use his or her own vehicle for work. Carter argues alternatively that Reynolds’ activity on the day in question fell within the “special mission” exception to the going and coming rule. Finally, Carter urges us to consider adopting the broad “enterprise liability” theory enunciated as the respondeat superior standard by the California Supreme Court. Hinman v. Westinghouse Elec. Co.,
Ill
Although as a general rule of tort law, liability must be based on personal fault, the doctrine of respondeat superior recognizes a vicarious liability principle pursuant to which a master will be held liable in certain cases for the wrongful acts of his servants or employees. W. Page Keeton, et al., Prosser and Keeton on the Law of Torts §§ 4, 69 at 21-23, 499-501 (5th ed.1984); Rhett B. Franklin, Pouring New Wine into an Old Bottle: A Recommendation for Determining Liability of an Employer Under Respondeat Superior, 39 S.D.L.Rev. 570, 572 (1994). The theoretical underpinning of the doctrine of respondeat superior has been described as follows: that one who expects to derive a benefit or advantage from an act performed on his behalf by another must answer for any injury that a third person may sustain from it. Winkelstein v. Solitare, 129 N.J.L. 38, 40,
Under respondeat superior, an employer can be found liable for the negligence of an employee causing injuries to third parties, if, at the time of the occurrence, the employee was acting within the scope of his or her employment. Lehmann v. Toys ‘R’ Us, Inc., 132 N.J. 587, 619,
A.
We turn first to the master-servant relationship. Like forty-four of our sister states,
(1) A servant is a person employed to perform services in the affairs of another and who with respect to the physical conduct in the performance of the services is subject to the other’s control or right to control.
(2) In determining whether one acting for another is a servant or an independent contractor, the following matters of facts, among other’s, are considered:
(a) the extent of control which, by the agreement, the master may exercise over the details of thе work;
(b) whether or not the one employed is engaged in a distinct occupation or business;
(c) the kind of occupation, with reference to whether, in the locality, the work is usually done under the direction of the employer or by a specialist without supervision;
(d) the skill required in the particular occupation;
(e) whether the employer or the workman supplies the instrumentalities, tools, and the place of work for the person doing the work;
(f) the length of time for which the person is employed;
(g) the method of payment, whether by the time or by the job;
(h) whether or not the work is a part of the regular business of the employer;
(i) whether or not the parties believe they are creating the relation of master and servant; and
(j) whether the principal is or is not in business.
[Restatement (Second) of Agency § 220 (1958).]
Our model jury charge regarding the definition of a servant is identical to Restatement section 220 with the addition of one line: “[S]uch other factors as may be reasonably considered in determining whether the employer has control or right to control the person employed.” Model Jury Charges (Civil) § 4.22(A) (June 1979) (emphasis added). As that charge intimates, “control by the master over the servant is the essence of the master-servant relationship on which the doctrine of respondeat superior is based.” Wright, supra, 169 N.J. at 436,
B.
Once the master-servant relationship is established, it is necessary to decide the
“Scope of employment” is a commonly cited principle, but its contours are not easily defined.
This highly indefinite phrase, which sometimes is varied with “in the course of employment,” is so devoid of meaning in itself that its very vagueness has been of value in permitting a desirable degree of flexibility in decisions. It is obviously no more than a bare formula to cover the unordered and unauthorized acts of the servant for which it is found to be expedient to charge the master with liability, as well as to exclude other acts for which it is not. It refers to those acts which are so closely connected with what thе servant is employed to do, and so fairly and reasonably incidental to it, that they may be regarded as methods; even though quite improper ones, of carrying out the objectives of the employment.
[Keeton, supra, § 70 at 502; see Di Cosala v. Kay, 91 N.J. 159, 169,450 A.2d 508 (1982) (“The scope of employment standard, concededly imprecise, is a formula designed to delineate generally which unauthorized acts of the servant can be charged to the master.” (citation omitted)).]
Some factors that courts have considered when assessing the scope of employment include: “the nature of the emрloyment, the duties of the employee, whether the accident occurred in the course of fulfilling some job-related function, or whether it occurred during a trip personal to the employee.” Christopher Vaeth, J.D., Annotation, Employer’s Liability for Negligence of Employee in Driving His or Her Own Automobile,
In New Jersey, as in most other states,
(a) it is of the kind he is employed to perform;
(b) it occurs substantially within the authorized time and space limits;
(c) it is actuated, at least in part, by a purpose to serve the master,
(2) Conduct of a servant is not within the scope of employment if it is different in kind from that authorized, far beyond the authorized time or space limits, or too little actuated by a purpose to serve the master.
[Restatement (Second) of Agency § 228 (1958).]
Restatement section 229 provides:
(1) To be within the scope of the employment, conduct must be of the same general nature as that authorized, or incidental to the conduct authorized.
(2) In determining whether or not the conduct, although not authorized, is nevertheless so similar to or incidental to the сonduct authorized as to be within the scope of employment, the following matters of fact are to be considered:
(a) whether or not the act is one commonly done by such servants;
(b) the time, place and purpose of the act;
(c) the previous relations between the master and the servant;
(d) the extent to which the business of the master is apportioned between different servants;
(e) whether or not the act is outside the enterprise of the master or, if within the enterprise, has not been entrusted to any servant;
(f) whether or not the master has reason to expect that such an aсt will be done;
(g) the similarity in quality of the act done to the act authorized;
(h) whether or not the instrumentality by which the harm is done has been furnished by the master to the servant;
(i) the extent of departure from the normal method of accomplishing an authorized result; and
(j) whether or not the act is seriously criminal.
[Id. § 229; see Government Employees Ins. Co. v. United States, 678 F.Supp. 454, 456 (D.N.J.1988) (noting that New Jersey follows Restatement approach to scope of employment analysis and applying same); Di Cosala, supra, 91 N.J. at 169,450 A.2d 508 (using Restatement principles to guide scope of employment analysis).]
c.
Generally, an employee who is “going to” or “coming from” his or her place of employment is not considered to be acting within the scope of employment. Mannes v. Healey, 306 N.J.Super. 351, 353-54,
Two rationales exist to support the “going and coming” rule. Mannes, supra, 306 N.J.Super. at 354,
There are, however, exceptions to the going and coming rule. Those exceptions are also rooted in wоrkers’ compensation law but have been engrafted onto tort law. See, e.g., 1 Larson’s Workers’ Compensation Law §§ 14.05, 15.05, 16.02 (2002). Thus, respondeat superior has been held to apply to a situation involving commuting when: (1) the employee is engaged in a special errand or mission on the employer’s behalf; (2) the employer requires the employee to drive his or her personal vehicle to work so that the vehicle may be used for work-related tasks; and (3) the employee is “on-call.” Mannes, supra, 306 N.J.Super. at 354-55,
Those so-called “dual. purpose” exceptions cover cases in which, at the time of the employee’s negligence, he or she can be said to be serving an interest of the employer along with a personal interest. Gilborges v. Wallace, 78 N.J. 342, 351,
This case involves the required-vehicle exception described above. In Mannes, supra, that exception was recognized but ultimately held inapplicable because at the time of the accident, the employer did not require the employee to use a particular vehicle. 306 N.J.Super. at 355,
DRI’s liability under that well-recognized exception is clear since Torres was driving to work when the accident haрpened and he was required to use the car in the performance of his employment as a demonstrator to encourage sales and to run work-related errands.
Ubid.]
See also O’Toole v. Carr, 175 N.J. 421,
A master-servant relationship plainly existed between Reynolds and the firm. Further, the Appellate Division concluded that because Reynolds spent one-third of her work time on the road visiting firm clients; was required by the firm to have her own car available for such activities; and actually was returning from a client visit at the time of the accident, she came within the required-vehicle exception to the going and coming rule outlined in Marines and applied in Pfender. Carter, supra, 345 N.J.Super, at 74,
The firm’s contrary view — that the required-vehicle exception is narrower than the Appellate Division realized — is based upon Oaks v. Connors, 339 Md. 24,
We disagree with that rather narrow analysis. To be sure, ordinary commuting is beyond the scope of employment because of the absence of control and benefit. Driving a required vehicle, however, is a horse of another color because it satisfies the control and benefit elements of respondeat superior. An employee who is required to use his or her own vehicle provides an “essential instrumentality” for the performance of the employer’s work. Konradi v. United States,
Oaks was equally wide of the mark regarding control. When an employer requires an employee to use a personal vehicle, it exercises meaningful control over the method of the commute by compelling the employee to foreswear the use of carpooling, walking, public transportation, or just being dropped off at work. See Konradi, supra,
On the day in question, Reynolds actually had made an off-site visit in her car and was returning home from the off-site location when the accident occurred. She was required to use her car for the visit. Her commute therefore had a dual purpose insofar as it served interests of both Reynolds and the firm. Moreover, the firm’s requirement that Reynolds use her car eliminаted alternate means of transportation. Thus, the firm is liable to the Carters under the doctrine of respondeat superior because Reynolds’ use of her personal automobile to advance her employer’s business interests fell -within the dual purpose, required-vehicle exception to the going and coming rule and placed her squarely both within the employment relationship and the scope of her employment at the time of the accident. Obviously this is a fact-intensive inquiry. In every case in which a plaintiff invokes the required-vehicle exception to the gоing and coming rule, he or she must establish that the employer, in fact, required the vehicle to be provided by the employee on the day in question.
V
Although we need not comment on Carter’s alternative contention that Reynolds was on a “special errand or mission” for the firm when the accident occurred, we add these observations. The special mission exception has fairly well-defined margins.
When an employee, having identifiable time and space limits on his employment, makes an off-premises journey which would normally not be coverеd under the usual going and coming rule, the journey may be brought within the course of employment by the fact that the trouble and time of making the journey, or the special inconvenience, hazard, or urgency of making it in the particular circumstances, is itself sufficiently substantial to be viewed as an integral part of the service itself.
[Carberry v. State, Div. of State Police, 279 N.J.Super. 114, 120,652 A.2d 232 (App.Div.) (quoting 1 Arthur Larson, The Law of Workmen’s Compensation § 16.11 at 4-204 (1990)), certif. denied, 141 N.J. 94,660 A.2d 1193 (1995).]
The “special” aspect of the exception requires, at the very least, that the employee perform an act outside the ordinary confines of his or her job description at the behest of the employer. That standard simply does not apply in the circumstances here presented.
VI
Alternatively, Carter contends that we should adopt the broad enterprise liability theory that is the standard for respondeat superior in California. Hinman, supra, 88 Cal.Rptr. 188,
The California formulation states that the “ ‘modern and proper basis of vicarious liability of the master is not his control or fault but the risks incident to his enterprise.’ ” Huntsinger, supra, 99 Cal.Rptr. at 668 (quoting Hinman, supra, 88 Cal.Rptr. 188,
VII
The judgment of the Appellate Division is affirmed.
Notes
See Restatement (Second) of Agency § 220 (1958) (collecting cases).
See Restatement (Second) of Agency §§ 228, 229 (1958) (collecting cases).
Concurrence Opinion
concurring.
I am able to join in the judgment of the Court and its narrow holding that applies the “required-vehicle” exception to the “going- and-coming” rule and imposes liability on this employer under a respondeat superior theory. Importantly, the Court eschews any reliance on “the broad enterprise liability theory that is the standard for respondeat superior in California.” Ante at 418,
I have no hesitation in agreeing with the Court’s assessment here that the employer exercised control and derived benefit from requiring its employee to have her motor vehicle at work that day and sending her, in that vehicle, to an alternate site to pеrform duties. Her employer thus must bear vicarious liability for the accident that occurred on her way home from that assignment. This was not the employee’s typical end-of-workday commute home from her regular worksite; it was a return home from assigned off-site work duties. In that setting, the cessation of workday duties did not signal the end of the employer’s control and derived benefit from the condition of employment that required
That said, fairly read, the Court’s opinion does not stand for the proposition that every invocation of the required-vehicle exception shall subject an employer to liability for an automobile accident occurring during an employee’s commutation. It surely has not been, and is not as a result of this decision, the law of this Court that all types of employees who commute to work by personal vehicle, and who may be sent, via their own vehicle, on assignment from time to time, now commute every day to and from their regular workplace “under the control” of their employer. The Court has never cоnsidered such a broadly sweeping application of the required-vehicle exception to the going-and-coming rule. The societal cost and benefit of such an across-the-board application of the required-vehicle exception to all employees who may have to commute to work by their own motor vehicle and who may have to use their vehicle occasionally in work-related business would require careful scrutiny,' but not today and not on these facts. Because that question is left for another day, I am able to join in the Court’s disposition.
Opposed — None.