On appeal from Superior Court, Law Division, Monmouth County, L-6027-98.
Before Judges Conley, Lefelt and Lisa.
The opinion of the court was delivered by: Conley, J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
This appeal is generated by an automobile accident caused by defendant Paul J. Carr while driving from his home to his municipal court judgeship employment. The accident victims sued not only Carr but the Murray and Carr law firm in which, at the time of the accident, Carr was a partner.*fn1
The law firm's alleged liability was premised upon principles of agency and respondeat superior vicarious liability. On leave granted by the Supreme Court, the firm appeals a March 16, 2001, order granting plaintiffs' and Carr's motion for summary judgment. In granting the motion, the judge concluded as a matter of law that the law firm was vicariously liable for Carr's negligence.
Although recognizing that more modern approaches in other jurisdictions to respondeat superior liability might provide a basis for vicarious liability under the particular circumstances here, we are constrained to abide by what we believe to be the current law in New Jersey and reverse. Under our existing law, Carr's automobile negligence while driving to the location of his municipal court judgeship cannot be imputed to the private law practice of Murray and Carr.
Most of the particular circumstances are not in dispute. On January 8, 1998, the O'Tooles' vehicle was struck by Carr's vehicle on Route 9 in the Township of Eagleswood.*fn2 At the time of the accident, Carr was driving to the Tuckerton Municipal Court, where he presided as a part-time municipal judge. His car was leased. Lease payments, in addition to gas, tolls and other car expenses, were paid from Carr's corporate account. Income in this corporate account was derived from law firm disbursements after partnership overhead expenses were paid. No income, however, from Carr's judgeships, or Murray's (who also was a part-time municipal judge) judgeships, went into the partnership business account or their separate corporate accounts. Carr's vehicle was not leased in either the partnership or corporate name, but rather was leased by Carr in his personal capacity. The vehicle was insured by First Trenton Indemnity with bodily injury limits of $100,000 for each person and $300,000 for each accident. In contrast, the law firm had a million dollar automobile policy with CNA. The judge noted that plaintiffs had no underinsured motorists' coverage, thus enabling them to recover from either policy.
There are a few disputed facts. Carr had a portable cellular phone at the time of the accident which he had with him in the vehicle. Sometime before the accident, he claims to have made several law firm-related calls, one to his secretary to check his diary for the day and one or two to law firm clients. It was his deposition testimony that were it not for the accident, these clients would have been billed for the phone calls. Some question is raised as to the existence of the calls as phone bills purporting to be those of Carr's cell phone do not reflect the calls. The authenticity and accuracy of these records is disputed. Were there some basis for concluding that the accident occurred while Carr was engaged in one of the firm- related phone calls he claims to have made, the dispute of fact as to their existence might be critical. Carr, however, admitted in deposition testimony that he had finished the phone calls and was not on the cell phone at the time of the accident. There is no basis for concluding, therefore, that at the time of the accident, Carr was directly engaged in law firm business.
Nonetheless, the motion judge imposed vicarious liability upon the firm concluding that:
[A]ny attorney who is also a municipal court judge even though the direct contributions may not be going back into the firm, there is a sufficient nexus and a sufficient benefit to that firm from that activity which inures to the benefit of all partners in that firm. . . . That is a sufficient connection so as to make [the law firm's] excess policy available for this accident.
That [Carr] was in fact on sufficient law firm business at the time of the event so as to be, "legally designated as an agent." To the extent that we need that designat[ion] to implicate the policy.
The judge acknowledged that he was "expanding the definition of agency to cover this activity."
The focus here is upon the "going and coming" or commuting anomalies that have been engrafted upon respondeat superior liability principles. See generally Christopher Vaeth, Annotation, Employer's Liability for Negligence of Employee in Driving His or Her Own Automobile, 27 A.L.R.5th 174 (1995); Rhett B. Franklin, Pouring New Wine Into an Old Bottle: A Recommendation for Determining Liability of an Employer Under Respondeat Superior, 39 S.D. L. Rev. 570 (1994). A number of different tests have been employed by jurisdictions throughout the country to determine whether respondeat superior principles apply to commuting accidents so as to make the employer liable for the commuting employee's negligence. Ibid. By far, the most liberal is that utilized in California. Employing what has been referred to as an enterprise theory of liability,*fn3 California has concluded that "if the employee's trip to or from work 'involves an incidental benefit to the employer, not common to commute trips made by ordinary members of the work force,' the 'going and coming' rule will not apply." Henderson v. Adia Servs. Inc., 227 Cal. Rptr. 745, 747-48 (Cal. App. Ct. 1986) (quoting Hinman v. Westinghouse Elec. Co., 471 P.2d 988 (Cal. 1970)). "Categorization of an employee's action as within or outside the scope of employment thus begins with a question of foreseeability, i.e., whether the accident is part of the inevitable toll of a lawful enterprise." Id. at 748. The enterprise theory inquires whether "in the context of the particular enterprise the employee's conduct was 'so unusual or startling that it would seem unfair to include the loss resulting from it among other costs of the employer's business'." Id. at 749-50 (citation omitted). See also Alma W. v. Oakland Unified ...