September 16, 2008
DANA RUSIN AND DAVID LODI, PLAINTIFF-APPELLANTS,
CHRISTOPHER DINAPOLI, DEFENDANT-RESPONDENT, AND ALLSTATE NEW JERSEY INSURANCE COMPANY. DEFENDANT.
On appeal from Superior Court of New Jersey, Law Division, Camden County, L-272-06.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued telephonically September 2, 2008
Before Judges Payne and Alvarez.
Appellants, Dana Rusin and David Lodi, employees of the United States Postal Service who were injured when hit by a car driven by respondent, Christopher DiNapoli, appeal from a determination of a judge of the Law Division that DiNapoli was acting within the scope of his employment when the accident occurred, and thus he is immunized from suit under federal law. At the time of the accident, which occurred at midnight on February 3, 2004, Rusin and Lodi had clocked out, having completed one-half of their shifts, in order to take an Atlantic City casino bus trip that left from the Postal Service's employee parking lot. Rusin, with Lodi as a passenger, had just moved her car from one parking lot to another. Both then started to cross the two-lane roadway leading into the facility's parking areas. The accident took place after the two had crossed the roadway's ingress lane and while they were crossing the exit lane. The location of the accident was at a pedestrian walkway that crossed the roadway just outside of the parking lots' chain link fence and gates, some distance before the roadway joined the public road. The accident thus took place outside of the physical confines of the parking lot, but on Postal Service property. At the time of the accident, DiNapoli had also clocked out, having finished his shift in another part of the facility, and he was heading home. The accident appears to have been caused by DiNapoli's inability to see Rusin and Lodi as the result of frost build-up on DiNapoli's windshield, which he failed to remove before exiting the parking lot.
Following the accident, Rusin and Lodi applied for and were awarded temporary federal workers' compensation benefits.
Thereafter, they brought a civil tort action against DiNapoli seeking additional compensation for their injuries. DiNapoli, in turn, sought summary judgment, claiming immunity from suit pursuant to the immunity provisions of the Westfall Act*fn1 set forth at 28 U.S.C.A. § 2679(b)(1), which provide:
The remedy against the United States provided by sections 1346(b) and 2672 of this title for injury or loss of property, or personal injury or death arising or resulting from the negligent or wrongful act or omission of any employee of the Government while acting within the scope of his office or employment is exclusive of any other civil action or proceeding for money damages by reason of the same subject matter against the employee whose act or omission gave rise to the claim or against the estate of such employee. Any other civil action or proceeding for money damages arising out of or relating to the same subject matter against the employee or the employee's estate is precluded without regard to when the act or omission occurred.
Following oral argument, the motion judge denied DiNapoli's motion without prejudice, and he directed the parties to contact the United States Attorney's Office for its determination whether the United States was the proper defendant in the matter. See 28 U.S.C.A. § 2679(d)(1), which provides:
Upon certification by the Attorney General that the defendant employee was acting within the scope of his office or employment at the time of the incident out of which the claim arose, any civil action or proceeding commenced upon such claim in a United States district court shall be deemed an action against the United States under the provisions of this title and all references thereto, and the United States shall be substituted as the party defendant.
By letter dated July 2, 2007, the parties were informed:
It is the position of the United States Attorney that Mr. DiNapoli was not acting within the scope of his USPS employment when the subject accident occurred, as that term is understood and applied under the pertinent provisions of the Federal Tort Claims Act, 28 U.S.C. §§ 1346(b)(1),*fn2 2679(b). Doughty v. United States Postal Service, 359 F. Supp. 2d 361, 365 (D.N.J. 2005); . . . ; Borawski v. Henderson, 265 F. Supp. 2d 475, 482 (D.N.J. 2003). Consequently, this office declines to certify scope of employment for Mr. DiNapoli in the above matter.
Following receipt of the government's letter, DiNapoli moved in this action, pursuant to 28 U.S.C.A. § 2679(d)(3),*fn3 for Superior Court certification of his status as within the scope of his employment, contrary to the determination of the U.S. Attorney and for summary judgment. Following additional argument before the motion judge, DiNapoli's motion was granted on the ground that, because the accident occurred while DiNapoli remained within the confines of the parking lot or the roadway accessing it, he was acting within the scope of his employment when the accident occurred and therefore was immunized from civil suit. In a subsequent order, the judge also dismissed with prejudice claims against Allstate New Jersey Insurance Company, a private auto carrier that had intervened in the action.
At issue on appeal is the applicability of "scope of employment" precedent in the context of immunizing a fellow employee from liability for an accident occurring on the employer's property after the employee has concluded his work and left the employer's parking lot, but before the employee has reached the public road.
In Di Cosala v. Kay, 91 N.J. 159 (1982), the Supreme Court held that:
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." Restatement (Second) of Agency § 228 (1957).
[Di Cosala, supra, 91 N.J. at 169.]
As the Supreme Court recognized in Carter v. Reynolds, 175 N.J. 402 (2003), principles governing whether an employer (in this case, the federal government) can be held liable for the negligence of its employee causing injuries to a third person when leaving work in his car have their genesis in the going and coming rule of workers' compensation law as imported into tort law. Id. at 412. As the Court stated there:
most jurisdictions apply the general rule that an employee who is driving his or her personal vehicle to and from the employer's workplace is not within the scope of employment for the purpose of imposing vicarious liability on the employer.
[Id. at 412-13.]
Exceptions to this rule, again rooted in workers' compensation law, exist if the employee is engaged in a special errand or mission for the employer, if the employer requires the employee to drive his or her personal car to work for use in work-related tasks, or if the employee is "on-call." Id. at 414. DiNapoli's use of his vehicle does not fit within any of these exceptions. Nonetheless, we recognize that, in 1979, N.J.S.A. 34:15-36 was amended to provide:
Employment shall be deemed to commence when an employee arrives at the employer's place of employment to report for work and shall terminate when the employee leaves the employer's place of employment, excluding areas not under the control of the employer.
Thus, for workers' compensation purposes, the going and coming rule has been largely abrogated, Kristiansen v. Morgan, 153 N.J. 298, 316 (1998), modified on other grounds, 158 N.J. 681 (1999), and has been replaced by a "premises rule." Ramos v. M & F Fashions, Inc., 154 N.J. 583, 591 (1998). As a consequence, in Livingstone v. Abraham & Straus, Inc., 111 N.J. 89 (1988), the Supreme Court held that, for workers' compensation purposes, the petitioner was injured in an accident "arising out of and in the course of employment" when she was hit while walking to work from her car, parked in the far corner of a shopping mall parking lot in an area designated for use by Abraham & Straus employees. Id. at 104.
However, we have previously found the principles of Livingstone inapplicable in a tort context, stating:
Livingstone is clearly distinguishable because it defines the parameters of the "employer's place of employment" in the context of the Workers' Compensation Act, and endorses a flexible case-by-case analysis of the concept of "control" in a manner consistent with the remedial purposes and spirit of the Act. 111 N.J. at 102-05. No New Jersey case has equated the tort concept "within the scope of employment" with the workers' compensation concept of "arising out of and in the course of employment." As stated, the latter is applied in such a way as to effect the humane purposes of the Workers' Compensation Act in providing compensation to injured employees. See Sheffield v. Schering Plough Corp., 146 N.J. 442, 461 (1996). The former involves application of the Restatement (Second) of Agency § 228 criteria in deciding whether an employer is liable for the injuries to a third party caused by the negligence of the employee. See Government Employees Ins. Co. v. United States, 678 F. Supp. 454, 456 (D.N.J. 1988) (holding that the New Jersey workers' compensation cases do not govern the scope of employment doctrine for purposes of respondeat superior liability).
[Mannes v. Healey, 306 N.J. Super. 351, 356-57 (App. Div. 1997).] See also O'Toole v. Carr, 345 N.J. Super. 559, 566-68 (App. Div. 2001), aff'd o.b. 175 N.J. 421 (2003). Carter, decided after O'Toole and Mannes, does not challenge the principles that we have articulated.
As a consequence, we find the motion judge to have been mistaken in his application of the premises rule to this case, thereby establishing DiNapoli's immunity from the tort claims of Rusin and Lodi. Further, our review of applicable scope-of- employment principles set forth in the Restatement (Second) of Agency §§ 228 and 229, satisfies us that no other basis exists for a determination that DiNapoli's conduct fell within the scope of his employment. See Carter, supra, 175 N.J. at 411-12 (discussing these Restatement provisions).
Reversed and remanded.