On appeal from the Superior Court of New Jersey, Law Division, Hudson County.
Michels, Pressler and Trautwein. The opinion of the court was delivered by Michels, P.J.A.D.
Plaintiffs Philip Gotthelf and Paula Goodis appeal from a judgment of the Law Division in favor of all defendants and third-party defendants. The trial judge granted the motions for judgment in favor of defendants and third-party defendants Window Systems, De Vac of New Jersey, Inc. and De Vac of Minneapolis, Inc. at the conclusion of all the evidence and entered judgment in favor of defendant Property Management Systems, Inc. and The Prudential Insurance Company of America and third-party defendant Burns International Security Systems, Inc. on a molded jury verdict of no cause for action.
Plaintiffs seek a reversal of the judgment and a remand for a new trial, contending that the trial judge erred (1) in not applying the so-called "alternative liability" theory to their claims based on theft by agents or employees of defendants and third-party defendants and submitting that issue to the jury, and (2) in excluding from the jury proofs of prior and subsequent thefts in the apartment complex.
We are satisfied from our study of the record and the arguments presented that the evidence in support of the jury verdict is not insufficient and that all issues of law raised are clearly without merit. R. 2:11-3(e)(1)(B) and (E).
Liability cannot be visited upon these defendants and third-party defendants by reason of the alleged theft of plaintiffs' personal property by their agents or employees. It is a settled principle that an employer is liable for the acts of his servant only when those acts are within the servant's scope of
employment. E.g., Gilborges v. Wallace, 78 N.J. 342, 351 (1978); Gindin v. Baron, 11 N.J. Super. 215, 220 (App.Div.1951); Prosser, Law of Torts (4 ed. 1971) § 70 at 460; 1 Restatement, Agency 2d, § 238 at 526 (1958). Plainly there are many interpretive questions inherent in defining the "scope of employment." In Prosser's words,
This highly indefinite phrase, which sometimes is varied with "in the course of the 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 the 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. [ Prosser, op. cit., § 70 at 460-461]
In Comm. Union Ins. Co. v. Burt Thomas-Aitken Constr. Co., 49 N.J. 389, 392, n. 1 (1967), our Supreme Court adopted the definition given at 1 Restatement, Agency 2d, § 228 at 504 (1958), that:
(1) Conduct of a servant is within the scope of employment if, but only if:
(a) it is of the kind he is employed to perform;
(b) it occurs substantially within the authorized time ...