On appeal from Superior Court of New Jersey, Law Division, Ocean County.
Approved for Publication December 2, 1997.
Before Judges Havey, Newman and Collester. The opinion of the court was delivered by Havey, P.j.a.d.
The opinion of the court was delivered by: Havey
The opinion of the court was delivered by
In this personal injury action, plaintiff was struck by a vehicle owned and operated by defendant Candace Healey while Healey was travelling from her home to her part-time job with defendant Liberty Mortgage Company (Liberty). Judge Oles, in the Law Division, granted summary judgment in Liberty's favor, concluding that Healey was not acting within the course of her employment with Liberty at the time of the accident. *fn1 We affirm. We hold that generally an employee's commutation to and from work is not within the scope of employment for the purposes of imposing liability upon the employer for the negligence of the employee-driver.
Considering the evidentiary material in a light most favorable to plaintiff, see Brill v. Guardian Life Ins. Co. of America, 142 N.J. 520, 540, 666 A.2d 146 (1995), these are the facts. Healey was employed as a part-time loan officer with Liberty at its offices in Little Egg Harbor, Ocean County. She did not keep regular business hours. She had a key to the office and access to it at any time during the day or night. She often stopped at the Liberty office after its regular business hours to pick up rate sheets, application forms, or make photocopies and business calls.
The accident occurred at 8:30 p.m. while Healey was en route from her home to the Liberty office to pick up mortgage application forms. Plaintiff, a pedestrian, was struck by Healey's vehicle when it turned from Radio Road into the entrance of the Liberty office parking lot.
"Conduct is generally considered to be within the scope of employment if, 'it is of the kind [that the servant] is employed to perform; it occurs substantially within the authorized time and space limits; [and] it is actuated, at least in part, by a purpose to serve the master.'" Di Cosala v. Kay, 91 N.J. 159, 169, 450 A.2d 508 (1982) (quoting Restatement (Second) of Agency, § 228 (1957); see also Abbamont v. Piscataway Tp. Bd. of Educ., 138 N.J. 405, 416, 650 A.2d 958 (1994).
Most courts endorse the general rule that an employee driving his or her own vehicle to and from the employee's workplace is not within the scope of employment for the purpose of imposing vicarious liability upon the employer for the negligence of the employee-driver. Weaver v. United States Coast Guard, 857 F. Supp. 539, 545 (S.D. Tex. 1994), aff'd, 53 F.3d 1282 (5th Cir. 1995); Skinner v. Braum's Ice Cream Store, 890 P.2d 922, 924 (Okla. 1995); Logan v. Phillips, 891 S.W.2d 542, 544 (Mo. Ct. App. 1995); Faverty v. McDonald's Restaurants, Inc., 133 Ore. App. 514, 892 P.2d 703, 708 (Or. Ct. App. 1995); Dillman v. Great Dane Trailers, Inc., 649 N.E.2d 665, 667 (Ind. Ct. App. 1995); Vaughan v. Hair, 645 So. 2d 1177, 1179 (La. Ct. App. 1994), cert. denied, 650 So. 2d 1186 (1995); Kimball v. United States, 262 F. Supp. 509, 513 (D.N.J. 1967); see also cases cited by Christopher Vaeth, Annotation, Employer's Liability for Negligence of Employee in Driving His or Her Own Automobile, 27 ALR 5th §§ 2, 3 at 218-38 (1995). This general rule is sometimes ascribed to the theory that employment is suspended from the time the employee leaves the workplace until he or she returns, or that in traveling to and from work, the employee is not rendering service to the employer. Hinman v. Westinghouse Elec. Co., 2 Cal. 3d 956, 471 P.2d 988, 990-91, 88 Cal. Rptr. 188 (Ca. 1970). Other courts focus on the fact that, while the commute is work motivated, the element of "control" by the employer is lacking. Jones v. Blair, 387 N.W.2d 349, 355 (Iowa 1986); Logan, (supra) , 891 S.W.2d at 554.
There are several recognized exceptions to this general rule, none of which apply here. For example, courts have imposed respondeat superior liability upon the employer when the employee is engaged in a special errand or mission. Chevron v. Lee, 847 S.W.2d 354, 356 (Tex. Ct. App. 1993); Studebaker v. Nettie's Flower Garden, Inc., 842 S.W.2d 227, 229 (Mo. Ct. App. 1992); Burger Chef Sys. v. Govro, 407 F.2d 921, 927 (8th Cir. 1969). Another exception is where an employer requires the employee to drive his or her vehicle to work so that the vehicle is available for use in fulfilling the employee's work-related responsibilities. Oaks v. Connors, 339 Md. 24, 660 A.2d 423, 426-27 (Md. 1995). As a corollary to this rule, an employer may be held liable if the employee is "on call" and is involved in an accident while travelling to a work site in response to an employer's request for his service. Evington v. Forbes, 742 F.2d 834, 836-37 (4th Cir. 1984).
Here, the general rule applies. Healey was simply driving from her home to the Liberty office to obtain mortgage application forms. The fact that Healey was on her way to the office to perform some work-related duty is not sufficient in and of itself to constitute a mission undertaken on Liberty's behalf. Further, the commute was not controlled by Liberty. Healey was operating her own car; Liberty did not dictate the manner by which Healey operated it, the route of travel, or when she chose to commute to the Liberty office for work-related purposes.
The thrust of plaintiff's argument is that the general rule should apply only to "nine to five" employees, "whose services do not begin until they arrive at work and end when they leave to go home." Plaintiff reasons that because of the undefined and flexible nature of the time and space parameters of Healey's employment, she acts within the course of her employment with Liberty any time she commutes to the office to perform a work-related task before travelling "to other locations." We disagree.
The fact that Healey commutes to and from the Liberty office at her convenience renders the commute no more work-connected than if she had been a "nine to five" employee. That Liberty may have benefitted from the flexibility of Healey's work schedule is not dispositive. Indeed, the flexible work schedule inured more to her benefit than to the benefit of her employer. Moreover, Healey's varying hours and unrestricted access to the Liberty office ...