Employer Responsibility For Employee Actions Under Respondeat Superior Doctrine

WHEN WILL AN EMPLOYER BE RESPONSBILE FOR THE ACTIONS OF ITS EMPLOYEE PURSUANT TO THE DOCTRINE OF RESPONDEAT SUPERIOR?

Under the doctrine of Respondeat Superior, an employer may be found liable

for the negligent actions of its employee if, at the time of the negligent

action, the employee was acting within the course or scope of his or her

employment. Carter v. Reynolds, 175 N.J. 802 (2003); Lehmann v. Toys ‘r Us,

132 N.J. 587 (1993). The theory behind this doctrine is based upon the fact

that a person who derives a benefit or advantage from the acts performed by

another must answer for injuries or damages caused in the performance of

those acts to a third person. Carter, 175 N.J. at 409 citing Winkelstein v.

Solitare, 129 N.J.L. 38, 40 (1942). In order to establish an employer’s

liability for the actions of his employee in a tort action, plaintiff must

prove: 1. that a master/servant relationship existed and 2. that the

tortious conduct of the employee occurred within the “scope of his

employment.” Id. at 409.

With regard to the first prong of the two-prong analysis of the Respondeat

Superior test, an employee will qualify as a servant if that person is

“employed to employ services in the affairs of [the employer] 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.” Id. citing Restatement

(Second) of Agency §220 (1958). Additionally, in the event that the master,

or employer, is taking the position that the tort feasor is not a servant

but, instead, is an independent contractor, the Restatement (Second) of

Agency sets forth various factors to consider in making a determination

concerning the independent contractor/servant dichotomy. Id. at 409-410.

However, because it is undisputed that defendant Torchia was an “employee”

of Acme Supermarkets on the date of the accident, such analysis is not

required in the present litigation.

Unfortunately, the determination of whether a tortfeasor was within the

course or scope of his employment at the time the tortious act was

committed, is significantly more complex. Because the legal term “scope of

employment” in and of itself is rather vague and ambiguous, various courts

have looked to various factors in determining whether a tortfeasor’s conduct

falls within the “scope of employment.” Id. at 410-411. For instance, some

of the factors include “the nature of the employment, 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.” Id. at 411. (citations omitted). New Jersey courts, for the

most part, have turned to and relied upon the scope and analysis of

Restatement (Second) of Agency at §228 and 229. Id. Section 228 states

that an employee’s conduct falls within the scope of employment if: a. the

conduct 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. Id. citing Restatement (Second) of

Agency at §228. Additionally, Restatement §229 sets forth additional

factors to be considered by the court in determining whether an employee is

acting within the course of his employment. The general principle provided

by §229 indicates that unauthorized conduct on behalf of an employee will be

considered to be within the scope or course of employment if the

unauthorized conduct is of the same general nature of that authorized or

incidental to the conduct authorized. Id. The Restatement sets forth

various factors to determine whether unauthorized conduct is “so similar to

or incidental to the conduct authorized as to be within the scope of

employment.” Id. citing Restatement (Second) of Agency §229. The factors

of §229 relevant to the within litigation are as follows: “a. whether or

not the act is one commonly done by servants; b. the time, place and purpose

of the act; … f. whether or not the master has reason to expect that such

an act will be done; g. the similarity in quality of the act done to the act

authorized; …” Id. at 412 citing Restatement (Second) of Agency, §229.

Against this backdrop, courts of this state have previously held that

employees who are “going to” or “coming from” their place of employment are

not considered to be acting within the course or scope of their employment.

(The going and coming rule). Id. at 412; Mannes v. Healey, 306 N.J. Super.

351, 353-354 (App. Div. 1997). Importantly, the “going and coming rule” is

based upon the fact that the employer loses the element of control over an

employee when an employee leaves the work place until he or she returns to

the work place, Mannes, supra, 306 N.J. Super. at 354, and that the employer

derives absolutely no benefit from the employee’s commute. Id. “In

essence, when employees travel to or from work they are deemed to be acting

in their own interests without constraints by the employer regarding the

method or means of the commute.” Carter, supra 175 N.J. at 413.

Importantly, as is relevant to the within matter, there are at least three

exceptions to the “going and coming rule”. They are: 1. when the employee

is engaged in a special errand or mission on the employer’s behalf; 2. when

the employer requires that the employee drive his or her personal vehicle to

work; 3. when the employee is on call. Id. citing Mannes, supra, 306 N.J.

Super. at 354-355. Clearly, the second exception is not applicable to the

within litigation. However, the first and third exceptions must be further

explored.

The above referenced exceptions to the “going and coming rule” are deemed

“dual purpose” exceptions on the basis that the employer derives some

benefit out of the employee’s actions. Id. “Unlike ordinary commutation in

which an employer really has no interest, each of the noted exceptions

involves some control over the employee’s actions and a palpable benefit to

be reaped by the employer, thus squarely placing such conduct back into the

vicarious liability construct of the Restatement.” Id., 175 N.J. at 414.

In Ricciardi v. Damar Products Co., 45 N.J. 54 (1965), the Supreme Court of

this state held that an employee’s attendance at a company picnic qualified

as a special errand or special mission has to fall within the scope of the

employee’s employment. In Ricciardi, the plaintiff’s decedent was killed in

a motor vehicle accident on July 2, 1960 while returning home from a picnic

sponsored by her employer. Ricciardi, supra 45 N.J. at 59. Importantly,

the plaintiff’s decedent was not required to attend the picnic and received

no compensation in exchange for attending same. Id. Instead, the

employer’s vice president encouraged employees’ attendance at the picnic

indicating that the picnic was intended to improve employer/employee

relations. Id. In determining whether plaintiff’s decedent’s death was

covered under the worker’s compensation statutory scheme (i.e. whether the

death occurred in the course of the employee’s employment), the court looked

to the “special errand or mission” exception to the “going and coming rule”.

Id. at 61. In determining that the accident was compensable, the Supreme

Court focused on the benefit of the employee’s attendance at the picnic to

the employer. Id. at 61. “Here the employer could not achieve the business

aim of the outing unless the employees reached the picnic scene. Travel to

and from it were of course essential.” Id. at 61 (emphasis added).