OPINION
{1} In this сase, we review the entry of summary judgment in favor of Defendant, Coronado Paint and Decorating Center (Coronado), on the claims of respondeat superior and negligent hiring or retention brought by Plaintiffs, Sue Lessard (Lessard) and her husband, Joel Lessard. Summary judgment was granted by the trial court on grounds that employee Barry Fennell (Fennell) was acting outside the scope of his employment as a matter of law and that liability was thus precluded under both theories. In regard to the claim based on a theory of respondeat superior, we conclude that under the circumstances of this case, Fennell was acting outside the scope of his employment as a matter of law. In regard to the claim for negligent hiring or retention, we conclude that Coronado owed a duty to the motoring public and that any questions regarding the scope or breach of that duty, as well as questions of proximate cause, must be reserved for the fact-finder. Accordingly, we affirm in part, reverse in part, and remand for further proceedings in light of this opinion.
I. BACKGROUND
{2} This case arises out of an automobile accident between Lessard and Fennell. Lessard suffered serious injuries when Fennell’s car crossed over the center line onto the wrong side of the road, struck Lessard’s car, and thus caused it to roll. Filing a complaint against Coronado, as well as other parties, Lessard and her husband alleged that Coronado was liable under theories of respondeat superior and negligent hiring and retention. Upon Coronado’s motion, the trial court granted summary judgment to Coronado on both causes of action and relied on Coronado’s argument that an employer is not liable for the acts of an employee who is returning home from work at the end of the day.
{3} For the purposes of the summary judgment motion, Coronado asked the trial court to assume, without deciding, that Fennell was its employee. Coronado set out the following facts as undisputed:
1. On November 20, 2000, ... Lessard and ... Fennell were involved in an auto accident on Rancho Viejo Boulevard, in Santa Fe, New Mexico.
2. At the time of the accident, ... Fennell was driving a vehicle owned by Clayton Gober.
3. At the time of the accident, ... Fennell was on his way home from work, having left work at around 4:35 to 4:40 p.m.[,] and had traveled about a mile from the home building development.
4. The accident occurred at approximately 4:45 p.m.
5. Coronado ... contracted with ... Fennell to perform tile repair services on the Rancho Viejo home building development, and a couple of other locations.
6. During the time ... Fennell worked for Coronado prior to the accident, he drove Mr. Gober’s Toyota pickup truck.
7. Coronado ... never lent ... Fennell a vehicle, and ... Fennell never drove one of Coronado[ ]’s company vehicles.
8. The manner in which ... Fennell was to get to job[]sites was never discussed with Coronado[.]
(Citations omitted.) Based on these facts, Coronado argued that summary judgment was proper on the claim for respondeat superior because an employer is not liable for the negligence of employees who are simрly traveling home after work is over for the day. In addition, Coronado argued that summary judgment was proper on the negligent hiring and retention claim because no connection existed between Coronado’s business and Lessard and because, hiring and retaining Fennell did not proximately cause Lessard’s injuries.
{4} In her response, Lessard disputed facts 3, 5, 7, and 8 and qualified fact 6. We address Lessard’s contentions in regard to facts 3, 6, 7, and 8 together because each contention tends to provide additional facts, rather than create a dispute about the fact offered by Coronado. In regard to fact 3, Lessard asserted that “[wjhile one possible construction of the events is that Fennell was on his way home from work, another is that Fennell had left the last job he was sent to by Coronado for the day.” Our review of the record reveals that Fennell testified he was on his way home from work: “I was just getting off of work. I was going home.” Lessard’s contention is based on an additional fact-Fennell, on his way home from work, had just left the location of his last job for Coronado that day. Similarly, in regard to fact 6, Lessard admits that Fennell drove Gober’s truck but further states that following the accident, Fennell drove a truck that was purchased for him by Coronado employee Miles Poteet (Poteet) after he bailed Fennell out of jail. Likewise, in regard to fact 7, Lessard disputed in part Coronado’s assertion that it never loaned Fennell a vehicle or provided him with a company vehicle; Lessard added that after the accident, Poteet purchased a vehicle for Fennell, who in turn purchased the vehicle from Poteet. Further, in regard to fact 8, Lessard disputed Coronado’s assertion that Coronado and Fennell never discussed the manner in which he would travel to job sites. Lessard contended that the facts show Coronado expected Fennell to drive to job sites to perform its repair work. Specifically, Lessard asserted that Poteet knew Fennell drove because Poteet regularly got materials ready for Fеnnell to pick up and that Poteet’s actions in bailing Fennell out of jail and purchasing another truck for him were evidence that Coronado expected Fennell to drive to job sites. We conclude that Lessard’s contentions, in regard to these undisputed facts set forth by Coronado, do not create issues of fact regarding Coronado’s assertions, but rather consist of additional facts to be considered in our analysis. We discuss the relevance of these facts as they become pertinent to our discussion.
{5} Finally, in regard to fact 5, Lessard disputed Coronado’s assertion that Coronado had contracted with Fennell. Lessard contends that a disputed fact exists regarding whether Fennell was an employee or a contractor. As observed earlier, however, Coronado stipulated that Fennell was an employee for the purposes of the summary judgment motion; thus, we conclude that this fact, though disputed, is not material to our discussion.
{6} Lessard offered additional statements of undisputed fact regarding Coronado’s acts and omissions, as well as Fennell’s driving record and drug use. Germane to our discussion are Lessard’s statements that “Coronado specifically hired Fennell to drive to its customers’ locations and perform repairs to tile work” and that Coronado depended on Fennell’s driving to various job sites. Further, Lessard asserted that Poteet knew that Fennell drove, expected him to get to the job sites to perform repairs, and discussed with Fennell what supplies were needed in order to get the materials ready for Fennell to pick up. In addition, Lessard relied on the fact that Coronado gave Fennell a cell phone to use for communicating with Coronado and scheduling appointments with Coronado’s customers. Later, in a supplemental brief requested by the trial court, Lessard relied on a weekly installation contract in support of her argument that Fennell’s employment was conditioned on his use of a vehicle to drive from job site to job site. The contract provided that Fennell would insure the vehicle he used for work and that he would name Coronado as an additional insured.
{7} Thus, Lessard argued that genuine issues of material fact preclude summary judgment on both claims because factual issues exist regarding exceptions to the going and coming rule and regarding whether Coronado knew or should have known that Fennell was unfit to drive. After a hearing on the motion and supplemental briefing, the trial court found that no genuine issues of material fact exist and awarded summary judgment to Coronado, based on the arguments presented in its motion.
II. STANDARD OF REVIEW
{8} “Summary judgment is a drastic measure that should be used with great caution.” Narney v. Daniels,
III. DISCUSSION
{9} As a prеliminary issue, we address the parties’ use of the term “going and coming rule.” Coronado used the term in the motion for summary judgment, and both parties have used the term throughout the pleadings below and in the briefs to this Court. As observed by Lessard in her brief in chief, New Mexico cases have referred to the going and coming rule only in workers’ compensation cases. See, e.g., Ramirez v. Dawson Prod. Partners, Inc.,
A. Respondeat Superior
{10} On appeal, Lessard argues that genuine issues of material fact exist regarding whether Fennell was acting within the scope of his employment, which would trigger liability for Coronado under the theory of respondeat superior. She frames the question posed as “whether there is an exception to the [going and coming] rule when an employer, either expliсitly or implicitly, requires an employee to bring a personal vehicle to work for use in performing essential job duties.” In turn, Coronado answers that summary judgment in its favor was proper because Lessard failed to show that Fennell was acting in furtherance of Coronado’s business and subject to its control. Thus, Coronado contends that Fennell was not acting within the scope of his employment and that Coronado cannot be held vicariously liable for Fennell’s actions.
{11} Under the doctrine of respondeat superior, an employer can be held vicariously liable for the negligent actions of an employee who is acting within the scope of his employment. Medina v. Graham’s Cowboys, Inc.,
{12} In Narney, we adopted a four-point test to determine whether an employee’s acts were performed within the scope of employment.
An employee’s action, although unauthorized, is considered to be in the scope of employment if the action (1) is the kind the employee is employed to perform; (2) occurs during a period reasonably connected to the authorized employment period; (3) occurs in an area reasonably close to the authorized area; and (4) is actuated, at least in part, by a purpose to serve the employer.
Id. at 49,
An act of an employee is within the scope of employment if:
1. It was something fairly and naturally incidental to the employer’s business assigned to the employee, and
2. It was done while the employee was engaged in the employer’s business with the view of furthering the employer’s interest and did not arise entirely from some external, independent and personal motive on the part of the employee.
UJI 13-407 NMRA; see also Childers v. S. Pac. Co.,
{13} We turn now to the rule regarding scope of employment in automobile accident cases. Several New Mexico cases have addressed the issue of scope of employment when an employee, going to or from work in his own automobile, has had an automobile accident. See, e.g., Richardson,
{14} In reaching the conclusion that the question of control was essential to the issue, the Court in Nabors relied on Bolt,
[A] master will not be held responsible for negligent operation of a servant’s automobile, even though engaged at the time in furthering the master’s business, unless the master expressly or impliedly consented to the use of the automobile, and had the right to control the servant in its operation, or else the use of the automobile was of such vital importance in furthering the master’s business that his control over it might reasonably be inferred.
Id. (emphasis omitted) (quoting Estate of Gallagher v. Battle,
{15} In light of the discussion in Bolt, we look at Nabors with fresh eyes. We read the holding in Nabors to say that there was substantial evidence that the employеr did not control the employee’s vehicle and that the employee was thus not acting in the scope of his employment while traveling to the job site.
{16} To find Coronado liable for Fennell’s negligent actions, each question must be answered in the affirmative. We examine the facts in our case to determine whether summary judgment for Coronado was appropriate on the respondeat superior claim.
1. Consent to Use
{17} Viewing the facts in favor of Lessard as the nonmoving party, we conclude that sufficient evidence exists from which a jury could, find that Coronado consented to Fennell’s use of his vehicle. Fennell was hired to repair tile installations in various homes throughout a housing development and at other sites in the vicinity, which required him to travel from job site to job site. Coronado did not provide any other transportation for Fennell or for the materials. Fennell testified that he used the vehicle to pick up materials from Coronado after he had discussed the job needs with Poteet and that Fennell regularly visited more than one job site in one day. In addition, Poteet procured another vehicle specifically for Fennell after the accident. From these facts, a jury could reasonably infer that Coronado consented to Fennell’s use of his personal vehicle to travel from job site to job site in the performance of his duties.
2. Control of the Instrumentality
{18} Similarly, we conclude that Coronado’s control over the operation of the vehicle could be implied in these circumstances. Use of Fennell’s personal vehicle could be considered essential to the performance of his duties as an employee because he was required to drive from job site to job site, even though Coronado did not provide him with a vehicle. See Bolt,
3. Furthering Coronado’s Business
{19} In the third step of our analysis, we ask if Fennell was engaged at the time in furthering Coronado’s business. The evidence in the record does not support Lessard’s contention that Fennell’s conduct at the time of the accident was in furtherance of Coronado’s business. The only relevant evidence in this respect is Fennell’s testimony that he was “just getting off work,” that he was going home, and that he was heading home by a direct route at the time of the accident. Lessard asserts that Coronado provided Fennell with a cell phone to “keep in touch with Coronado.” However, Lessard neither made allegations nor offered any evidence that could lead a reasonable jury to infer that Fennell was on call or otherwise engaged in using the cell phone to further Coronado’s interest at the time of the accident. Because Lessard has failed to present evidence that would support an inference that Fennell's conduct at the time was in furtherance of Coronado’s business, we conclude as a matter of law that no jury could reasonably infer that Fennell was acting within the scope of his employment.
{20} Consideration of the jury instruction supports the conclusion we have reached in our three-prong analysis. Because Fennell’s duties required him to drive from job site to job site, a jury could reasonably infer that his negligent conduct was fairly and naturally incidental to the employer’s business assigned to the employee. See UJI 13 — 407(1). However, we cannot conclude from the evidence in the record that Fennell, at the time of the accident, was acting in any part to further Coronado’s interests under these facts. As noted in the previous paragraph, the only evidence regarding the reasons for Fennell’s actions at the time of the accident was his testimony that he was driving home. Thus, we conclude that Fennell’s conduct arose entirely from this “external, independent and personal motive.” UJI 13-407(2); see also Restatement (Third) of Agency § 7.07 (discussing scope of employment). Lessard has provided no evidence from which a jury could reasonably infer otherwise. We therefore affirm the trial court’s grant of summary judgment in favor of Coronado on the respondeat superior claim.
{21} Lessard cites to several cases from other jurisdictions in support of her argument that a reasonable jury could conclude that Coronado is vicariously hable under the facts of this case. Considering our analysis above based on New Mexico law, we are not convinced that these out-of-state cases are applicable. We specifically address the three cases upon which Lessard relies most heavily. We recognize that the facts in Carter v. Reynolds,
{22} In Carter, the Supreme Court of New Jersey held that the employee came within the “required-vehicle exception” to the general rule precluding vicarious liability.
{23} The Huntsinger court relied on a similar rationale when it concluded that substantial evidence existed from whiсh the jury could have found that the employee’s “use of his vehicle was an implied or express condition of his employment.”
{24} Both Carter and Huntsinger impose liability on the basis of benefit to the employer. We acknowledge that benefit to the employer is one factor that has been used in the context of workers’ compensation to determine whether a worker’s injury “arise[s] out of and in the course of employment.” See Ramirez,
{25} Finally, Lessard relies on Murray,
B. Negligent Hiring and Retention
{26} Lessard disputes Coronado’s assertion that the going and coming rule precludes liability for the negligent hiring and retention claim. She contends that this approach is not consistent with New Mexico negligence law and that the appropriate analysis requires this Court to address duty, breach of duty, proximate cause, and eausein-fact of the plaintiff’s damages. Lessard asserts that as a matter of law, Coronado owes a duty to her because Coronado, as an employer who hired an employee to drive, owes a duty to membеrs of the motoring public. She contends that resolution of the issue is a jury question. In response, Coronado argues that as a matter of law, it has no duty to Lessard because no authority creates, and public policy does not support, a duty running from Coronado to Lessard. Under the circumstances of this case, we agree with Lessard.
{27} “Generally, a negligence claim requires the existence of a duty from a defendant to a plaintiff, breach of that duty, which is typically based upon a standard of reasonable care, and the breach being a proximate cause and cause in fact of the plaintiffs damages.” Herrera v. Quality Pontiac,
{28} Negligence in hiring or rеtention is based on the employer’s negligent acts or omissions in hiring or retaining an employee when the employer knows or should know, through the exercise of reasonable care, that the employee is incompetent or unfit. F &T Co. v. Woods,
{29} Here, we recognize that the parties did not expressly argue the question of duty and foreseeability in their pleadings below, but rather focused on the question of whether the going and coming rule precluded liability on both claims. The issue of duty is implicit, however, in the arguments made below, and both parties expressly address the issue on appeal. Moreover, the trial court’s decision can be interpreted as a determination that the going and coming rule precluded the existence of a duty in these circumstances. We therefore begin our analysis by discussing duty.
{30} A duty may exist based on statutory law; based on common law that has created an affirmative duty toward a specific individual or group of individuals; or based on a general negligence standard, which requires an individual to exercise reasonable care in his dealings and activities with the public. Calkins v. Cox Estates,
{31} The district court agreed with Coronado’s argument that it did not owe a duty to Lessard under these facts. We do not agree. First, Lessard was a foreseeable plaintiff because Coronado could reasonably anticipate that its employee, who was required to drive between jobs, might have a car accident with someone on the road during the workday. See id.,
{32} Lessard asserts that NMSA 1978, § 66-5^42 (1978) is an expression of legislаtive intent that supports the existence of a duty to investigate under these circumstances. As we discuss below, we conclude that Section 66-5^42 supports the existence of a duty to protect the motoring public; whether the scope of that duty includes investigation into Fennell’s driving capabilities or licensing, under these circumstances, is a question for the jury.
{33} We agree with Coronado that Lessard failed to make any argument based on Section 66-5-42 in the court below. This failure, however, does not preclude us from considering whether Section 66-5-42 and the public policy expressed therein provides support for a duty in this case. See Spencer,
{34} Section 66-5-42 states, “No person shall employ as a driver of a motor vehicle any person not licensed as provided in this article.” We digress here to address Coronado’s argument that Section 66-5 — 42 does not provide guidance under these facts because Fennell was not employed as a “driver/chauffeur,” but rather to repair tile. Coronado relies on Mavrikidis v. Petullo,
{35} By enacting Section 66-5-42, the legislature expressed its desire to protect the motoring public. To the extent that Coronado argues Section 66-5-42 applies only to those employees whose job duties entail solely driving or chauffeuring, we are not persuaded. We are not construing the statute, but rather looking to the public policy manifested by the statute. The public policy expressed in Section 66-5-42 gives recognition to Coronado’s obligаtion to people who might come into contact with its employee on the road. See Herrera,
{36} Any question regarding the scope of that duty, that is, whether it includes a duty to investigate the driver’s record and how that duty may be satisfied, is a question of breach of the employer’s duty, which is a question of fact for the jury. See Spencer,
{37} We find further support for our conclusion in the Restatement (Third) of Agency § 7.05(1), which provides that “[a] principal who conducts an activity through an agent is subject to liability for harm to a third party caused by the agent’s conduct if the harm was caused by the principal’s negligence in selecting, training, retaining, supervising, or otherwise controlling the agent.” See id. cmt. a, at 177 (“The rules stated in this section are specific instances of general tort-law principles.”); see also Gabaldon v. Erisa Mortgage Co.,
{38} Coronado also contends that New Mexico law limits any duty to only those members of the public who have a connection to a defendant employer’s business. Coronado asserts that Lessard did not claim any connection to Coronado’s business and thus her claim for negligent hiring or retention must fail. We are not convinced. The question of a nexus between the plaintiff and the employer is a question of proximate cause and not foreseeability in the context of duty, as asserted by Coronado. See Spencer,
{39} We are not persuaded in this regard by Coronado’s reliance on Raleigh v. Performance Plumbing and Heating,
{40} Similarly, we are not persuaded by Hare v. Cole,
{41} Finally, Coronado relies on Gabaldon,
IV. CONCLUSION
{42} In regard to the claim of vicarious liability based upon respondeat superior, our review of the record leads us to conclude as a matter of law that Lessard has failed to offer evidence from which a jury could reasonably infer Fennell’s actions at the time of the accident were within the scope of his employment. In regard to the claim for negligence in hiring or retention, we conclude that Coronado owed a duty to members of the motoring public. We further conclude that questions regarding the scope or breach of that duty, as well as questions of proximate cause, are questions of fact that must be reserved for a jury. Accordingly, we affirm in part, reverse in part, and remand for further proceedings consistent with this opinion.
{43} IT IS SO ORDERED.