On appeal from the Superior Court, Appellate Division, whose opinion is reported at 345 N.J. Super. 559 (2001).
The issue in this appeal is whether the doctrine of respondeat superior may be invoked to hold an employer vicariously liable for the tort of an employee when the employee, an attorney, has an automobile accident while traveling from his home to his municipal court judgeship employment.
Paul J. Carr, an attorney with the law firm of Murray & Carr, was involved in a motor vehicle accident with Adrienne L. O'Toole while traveling to the Tuckerton Municipal Court, where he presided as a part-time municipal judge. Carr leased the vehicle he was driving in his personal capacity and insured it through First Trenton Indemnity. Lease payments, in addition to gas, tolls and other car expenses, were paid from Carr's corporate account. None of the income derived from the judgeship went into the partnership business account or corporate accounts. Although there was disputed testimony presented regarding Carr's use of a personal cell phone to conduct law firm business, it is undisputed that Carr was not on the cell phone at the time of the accident. There is no basis, therefore, to conclude that he was directly engaged in law firm business at the time of the accident.
The trial court granted the motions for summary judgment filed by O'Toole and Carr, reasoning that there was a sufficient "nexus" and a sufficient benefit to the firm from Carr's judgeship so as to make the law firm's excess policy available to O'Toole. The trial court further held that Carr was acting as an agent for the law firm. The Appellate Division reversed, holding that Carr's commute to his other job did not fall within any exception to the "going and coming rule."
HELD: The judgment of the Appellate Division is AFFIRMED substantially for the reasons expressed in Judge Conley's opinion.
1. The Court declines to adopt the broader enterprise liability theory that is the standard for respondeat superior in California, retaining instead the Restatement as our vicarious liability standard. Restatement (Second) of Agency §§ 220, 228, 229 (1958). (Pp. 5-6)
CHIEF JUSTICE PORITZ and JUSTICES COLEMAN, LONG, VERNIERO, LaVECCHIA, ZAZZALI, and ALBIN join in this opinion.
The opinion of the court was delivered by: Per Curiam
(NOTE: The Court wrote no full opinion in this case. Rather, the Court's affirmance of the judgment of the Appellate Division is based substantially on the reasons expressed in Judge Conley's opinion below.)
Plaintiff, Adrienne L. O'Toole was injured in an automobile accident caused by defendant, Paul J. Carr, an attorney with the law firm of Murray & Carr. She sued Carr and the law firm. The facts surrounding the accident were described by the Appellate Division as follows:
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. 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 in 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. [O'Toole v. Carr, 345 N.J. Super. 559, 562- 63 (App. Div. 2001) (footnote omitted).]
On those facts, the trial court granted the motions for summary judgment filed by plaintiff and Carr, ...