On appeal from the Superior Court, Appellate Division, whose opinion is reported at 345 N.J. Super. 67 (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 has an automobile accident on her way home from an off-site client's location and when she was required by her employer to use her personal car on mandatory client visits.
Alice Reynolds was a non-professional, part-time employee who conducted detail work for auditors. At the time of the accident, Reynolds was employed by the accounting firm of Stevenes, Fluhr, Chismar, Alvino & Schechter, CPA (the firm). She was required to work in the firm's Neptune office, but she spent twenty-five to thirty percent of her time visiting clients off-site. There was no office car available to Reynolds, thus, she was required to use her own vehicle for travel. Reynolds was able to claim mileage and obtain travel reimbursement in accordance with Internal Revenue Service rates and rules. On the date of the accident, Reynolds spent the morning in the office and then traveled to Deal to a client location. Reynolds was on her way home from Deal when she had an accident with a vehicle driven by David Carter.
Carter filed a Complaint against Reynolds and subsequently amended it to include the firm, alleging that Reynolds was an employee, servant, and/or agent of the firm when the accident occurred because she was in the scope of her employment. The firm filed a motion for summary judgment and Carter filed a cross-motion. The trial court granted the firm's motion, but on reconsideration ruled that Reynolds was acting within the scope of her employment and granted Carter's motion for partial summary judgment with respect to respondeat superior liability.
The firm moved for leave to appeal. In a published opinion, the Appellate Division affirmed the trial court's grant of partial summary judgment to Carter, reasoning that Reynolds was acting within the scope of her employment. The firm moved for leave to appeal and the Supreme Court granted the motion.
HELD: The firm is liable under the doctrine of respondeat superior because Reynolds' use of her personal automobile to advance her employer's business interests fell within the dual purpose, required-vehicle exception to the going and coming rule and placed her squarely both within the employment relationship and the scope of her employment at the time of the accident.
1. Although as a general rule of tort law, liability must be based on personal fault, the doctrine of respondeat superior recognizes a vicarious liability principle pursuant to which a master will be held liable in certain cases for the wrongful acts of his servants or employees. To establish a master's liability under respondeat superior, a plaintiff must prove (1) that a master-servant relationship existed and (2) that the tortious act of the servant occurred within the scope of that employment. (Pp. 6-7)
2. Along with forty-four other states, New Jersey recognizes section 220 of the Restatement (Second) of Agency as the touchstone for determining who is a servant: "A servant is a person employed to perform services in the affairs of another and who with respect to the physical conduct in the performance of the services is subject to the other's control or right to control." That determination is dependent on a number of factual matters set forth in the Restatement, incorporated into our model jury charge, and "such other factors as may be reasonably considered in determining whether the employer has control or right to control the person employed." (Pp. 7-9)
3. Proof that the employer-employee relationship exists does not, in and of itself, create an inference that a given act done by the employee was within the scope of employment. In New Jersey, an employee's conduct falls within the scope of employment if (a) it is of the kind he is employed to perform; (b) it occurs substantially within the authorized time and space limits; and, (c) it is actuated, at least in part, by a purpose to serve the master. Restatement (Second) § 228. § 229 of the Restatement provides that "to be within the scope of the employment, conduct must be of the same general nature as that authorized, or incidental to the conduct authorized." The Restatement sets forth a number of factors that should be considered in determining whether or not the conduct, although not authorized, is nevertheless so similar to or incidental to the conduct authorized as to be within the scope of employment. (Pp. 9-13)
4. Generally, an employee who is "going to" or "coming from" his or her place of employment is not considered to be acting within the scope of employment. There are, however, exceptions to the going and coming rule. Respondeat superior has been held to apply to a situation involving commuting when: (1) the employee is engaged in a special errand or mission on the employer's behalf; (2) the employer requires the employee to drive his or her personal vehicle to work so that the vehicle may be used for work-related tasks; and (3) the employee is "on-call." In addition, New Jersey has adopted the "dual purpose" exception, which covers cases in which, at the time of the employee's negligence, he or she can be said to be serving an interest of the employer along with a personal interest. (Pp. 13-17)
5. A master-servant relationship plainly existed between Reynolds and the firm. Because Reynolds spent one-third of her work time on the road visiting firm clients, was required by the firm to have her own car available for such activities, and actually was returning from a client visit at the time of the accident, she came within the required- vehicle exception to the going and coming rule. Moreover, driving a required vehicle satisfies the control and benefit elements of respondeat superior. Reynolds was returning home from an off-site visit and therefore had a dual purpose insofar as she was serving interests of both herself and the firm. (Pp. 17-20)
6. The Court rejects Carter's contention that Reynolds was on a "special errand or mission' for the firm when the accident occurred and declines to consider the broader enterprise liability theory that is the standard for respondeat superior in California. (Pp. 20-23)
The judgment of the Appellate Division is AFFIRMED.
JUSTICE LaVECCHIA filed a separate, concurring opinion, in which JUSTICE VERNIERO joins, stating that the Court's holding does not stand for the proposition that all types of employees who commute to work by personal vehicle, and who may be sent, via their own vehicle, on assignment from time to time, now commute every day to and from their regular workplace "under the control" of their employer.
CHIEF JUSTICE PORITZ and JUSTICES COLEMAN, ZAZZALI and ALBIN join in Justice LONG's opinion. JUSTICE LaVECCHIA filed a separate concurring opinion, in which JUSTICE VERNIERO joins.
The opinion of the court was delivered by: Long, J.
In this appeal, we are called on to determine whether the doctrine of respondeat superior may be invoked to hold an employer vicariously liable for the tort of an employee. More particularly, we have been asked to decide whether the automobile negligence of an employee, who was required by her employer to use her personal car on mandatory client visits, subjected the employer to liability for an accident when the employee was on her way home from a client's location. Applying well-established principles of our law, we have concluded that it does.
The facts of the case are detailed in the Appellate Division decision. Carter v. Reynolds, 345 N.J. Super. 67 (App. Div. 2001), leave to appeal granted, 172 N.J. 170 (2002). We repeat only those that are necessary to our disposition. Defendant Alice Reynolds was the owner and operator of a vehicle that struck plaintiff, David Carter, on January 15, 1997, in Belmar, New Jersey. At the time of the accident, Reynolds, who resided in Brielle, New Jersey, was employed by the accounting firm of Stevens, Fluhr, Chismar, Alvino & Schechter, CPA, (the firm), located in Neptune, New Jersey.
At the firm, Reynolds was a non-professional, part-time employee who conducted detail work for auditors. She was responsible for the verification, checking, and preparation of bank reconciliations. Her job required her to work in the firm's Neptune office, and also to visit clients. Vincent Alvino, a partner in the firm, testified that Reynolds spent approximately sixty to seventy percent of her time at the firm's Neptune office and twenty-five to thirty percent at client locations. There was no office car available to Reynolds; thus, she was required to use her own vehicle for travel, with business mileage reimbursed by the firm under the Internal Revenue Service's (IRS) then prevailing allowance of 31½ cents per mile. With respect to travel reimbursement, Alvino testified that, in accordance with IRS rules, Reynolds could claim mileage from the office to the client assignment and from the client assignment back to the office and in the event that she was traveling from home, it would be the mileage from her home to the client or from the office to the client, whichever was closer, and that would also hold true for the return trip. If she was traveling from the client back home, she would get the shorter distance of the mileage from the client to home or the client to the office.
With respect to billing, on the days Reynolds traveled from her home to the client, she would begin billing when she arrived at the client's destination. On the days that she went directly home after meeting with a client, she would stop billing when she left the client, not when she actually arrived at home. If she had to return to the office after meeting with a client, she would bill for her travel time to the firm.
On the day in question, Reynolds spent the morning at the firm, and then traveled to Deal to a client location. Reynolds spent the remainder of the day working in Deal. She testified that she was reimbursed for the mileage from Deal to Neptune, but that she was not paid wages for her travel time. At approximately 4:29 p.m., when Reynolds was traveling from Deal to her home, the accident occurred.
On November 3, 1997, Carter filed an automobile negligence action against Reynolds. Later, Carter filed an amended complaint adding the firm as a defendant, alleging that Reynolds was an employee, servant, and/or agent of the firm when the accident occurred because she was in the scope of her employment.
The firm filed a motion for summary judgment and Carter filed a cross-motion. The trial court granted the firm's motion, leaving Reynolds as the sole defendant in the case. On Carter's motion for reconsideration based on new precedent, the trial court determined that Reynolds was, in fact, acting within the scope of her employment when she struck him and thus, granted Carter's motion for partial summary judgment with respect to respondeat superior liability.
The firm moved for leave to appeal the interlocutory order, which motion was granted. In a published opinion, the Appellate Division affirmed the trial court's grant of partial summary judgment to Carter, reasoning that Reynolds was acting within the scope of her employment, thus making the firm liable under the doctrine of respondeat superior. Carter, supra, 345 N.J. Super. at 77. The firm ...