On appeal from the Superior Court of New Jersey, Law Division, Essex County, L-4714- 97.
Judges Baime, Carchman and Lintner.
The opinion of the court was delivered by: Lintner, J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
In this appeal we are asked to resolve whether defendant, City of Newark (the City), is vicariously liable under the doctrine of respondeat superior for a police officer's negligent operation of a personal automobile while in uniform and traveling home on lunch break. The motion judge denied the City's motion for partial summary judgment finding that defendant, Officer Keith B. Jordan, was operating his vehicle within the scope of his employment based upon the Newark Police Department's (the Department) Rules and Regulations, which specified that an officer remains on duty even when periodically relieved during his regularly scheduled day. The City appeals. We hold that, under the circumstances of this case, Officer Jordan was not within the scope of his employment at the time of the accident, and reverse.
We combine the relevant facts, which are undisputed, with the procedural history. On August 26, 1995, at approximately 8:47 p.m., defendant, Officer Keith Jordan, was operating his personal [private passenger vehicle] car when he struck and seriously injured a pedestrian, plaintiff, Veronica Rogers. At the time, Jordan was in uniform, on paid lunch break and traveling home to attend to his son who was ill. He was working the 3:00 p.m. to 11:00 p.m. shift, assigned to the Department's Communications Division, where he was responsible for dispatching assignments and transmitting official orders to radio-equipped vehicles.
The Department's Manual of Rules and Regulations (Manual), which "defines the lines of authority, requisite duties, and code of conduct" for all police personnel, provides in pertinent part:
2:3.16 Duty. The embodiment of the requirements of the police calling that a police officer must fulfill by reason of the (sworn) oath of office he has taken.
2:3.24 Off Duty. The duty status of a member of the Department during authorized leave when he is free from the responsibility of performing his specified routine duties.
2:3.27 On Duty. The duty status of a member of the Department when he is actively engaged in the performance of his assigned duties during designated hours of the day.
2:3.43 Tour of Duty. A designated space of time within a 24 hour period during which members of the Department are actively engaged in the performance of their assign duties.
3:2.1 Duty Requirements. Police officers shall be always subject to duty even when periodically relieved from regularly scheduled duty.
On April 22, 1997, plaintiff filed a complaint naming Jordan, the City and the Department, among others who are not involved in this appeal, as defendants.*fn1 The complaint sought damages for personal injuries against Jordan based upon negligent operation of his vehicle. The complaint also asserted liability against the City predicated upon respondeat superior and negligent hiring. On March 3, 1999, plaintiff filed a motion seeking an order (1) finding Jordan to be on duty at the time of the accident and (2) granting summary judgment against the City on the issue of negligent hiring. The City filed opposition and a cross motion for partial summary judgment seeking to dismiss plaintiff's claims that the City was vicariously liable for Jordan's negligent conduct. The motion judge found, as a matter of law, that Jordan was within the scope and course of his employment at the time of the accident. He also determined that although plaintiff had established sufficient facts to present a prima facie case of negligent hiring, a jury question remained. An order reflecting the motion judge's findings was entered on June 2, 1999. The City's motion for reconsideration was denied by order of August 9, 1999, and we denied leave to appeal on October 6 1999.
Trial was scheduled before a different judge who found the June 2 order to be the law of the case. Following a six-day jury trial, a verdict was returned finding Jordan fifty-one percent negligent and plaintiff forty-nine percent negligent. Plaintiff's motion for new trial and alternative additur was denied. This appeal followed and is limited to the City's contention that the motion judge ...