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Bassam Jafar, As Administrator Ad Prosequendum of the Estate of Mayda v. Elrac


April 18, 2011


On appeal from the Superior Court of New Jersey, Law Division, Morris County, Docket No. L-2068-06.

Per curiam.


Argued telephonically March 24, 2011

Before Judges Lihotz and J. N. Harris.

This appeal is the outgrowth of wrongful death litigation brought by the administrators ad prosequendum of two teenaged girls who were killed by an intoxicated driver in 2006.*fn1 In addition to seeking remedies against (1) the driver, defendant Eugene C. Baum (Baum); (2) the owner of the rented vehicle, defendant Elrac Inc. (Elrac); and (3) the car rental company, defendant Enterprise Rent-A-Car Co. (Enterprise), plaintiffs also included claims against the driver's employer, defendant Future Electronics Corp. (Future). They have proceeded on the theory that Baum was acting within the scope of his employment when the accident occurred, or alternatively, that Future had reason to know of Baum's alcohol abuse and negligently retained him as an employee.

Plaintiffs' causes of action against Elrac and Enterprise were dismissed on summary judgment and are not the subject of appeal. Plaintiffs' claims against Baum were otherwise resolved. It was Future's motion for summary judgment dismissing the complaint, which was granted, that is the focus of this appeal.

Before us, plaintiffs urge that the motion court erred in two fundamental ways: first, by refusing to stay the action against Future pending the completion of the criminal prosecution against Baum, and second, by granting summary judgment in favor of Future. Because we discern no abuse of discretion in the court's denial of a stay, and conclude that plaintiffs have failed to demonstrate the existence of a genuine issue of material fact to preclude summary judgment, we affirm.



Because this appeal arises out of a motion for summary judgment, we give all reasonable inferences to plaintiffs, the non-moving parties. See Bauer v. Nesbitt, 198 N.J. 601, 605 n.1 (2009).

On April 20, 2006, at approximately 7:45 p.m., Baum was operating a motor vehicle on County Road 618 (Kinnelon Road) in Kinnelon when his vehicle struck and killed the two teenaged victims, who were walking along the shoulder. The police report indicated that the vehicle traveled over 1,000 feet after striking the victims.

Baum was arrested and initially charged with reckless driving and operating a motor vehicle while intoxicated. See N.J.S.A. 39:4-50, -96. Although neither party has provided to us a copy of the indictment or judgment of conviction against Baum, plaintiffs allege that Baum was convicted of a crime in February 2010, and sentenced one month later to forty years in prison.*fn2

The vehicle Baum was operating was owned by Elrac, a wholly owned subsidiary of Enterprise, and had been rented to Baum by Enterprise. Baum admitted that the vehicle had been rented and paid for by him for his own personal use while his personal car was otherwise inoperable. The rented car was not provided to Baum by his employer.

On the date of the accident, Baum was employed as a sales representative by Future, an international distributor and marketer of semi-conductors and other electrical components. Baum was initially retained by Future in 2004 as an inside sales representative. In March 2006, Baum began "migrating" from inside to outside sales, with the goal that he would eventually be either mostly or "entirely outside the office."

Donald Bruce Ledingham, Baum's supervisor at Future's Parsippany office, testified that part of the duties of an outside salesman is to "visit customers [by] driving to the accounts." Ledingham was not aware of Future conducting motor vehicle checks on prospective employees prior to hiring them.

Baum's memory of the events leading up to the accident, and the accident itself, was limited. In a letter to the court, Baum's counsel indicated that Baum had been examined by a forensic psychologist who opined that Baum had "no real recollection of anything that occurred on the date of the accident." During his deposition in this case, however, Baum was able to recall many details connected with the incident.

In the hours leading up to the tragedy, Baum had driven to a business appointment in Monmouth County and returned to his home in Dover in the afternoon, before departing for his mother's house in Kinnelon to pick up an automobile tire. Baum's deposition testimony indicated that he been consuming vodka out of a plastic water bottle throughout the day, including while driving. He also testified that he customarily had "some drinks" when he got home and that it was "highly likely" that he consumed more alcoholic beverages after returning home on April 20, but before setting out on his errand. Although Baum could not recall taking medication on the date in question, he testified that he had been using a medication called Librium at the time.

Baum also testified that while his typical workday was between the hours of nine to five, he worked later, between five and nine, approximately "[fifty] percent of the time." However, Baum did not recall working after he returned home on the date in question, and in fact, left his briefcase, laptop computer, and other work-related materials in his car when he went inside. Kinnelon Detective David E. Crouthamel, however, testified that Baum told him that he "did some more emailing at home," when he returned from his appointment, but could not recall whether the emails were personal or work-related. Baum did not recall making any phone calls or reviewing any work-related documents while driving to his mother's home. The last outgoing activity on Baum's cell phone was a call placed to his voice mailbox at approximately 7:19 p.m., at least twenty-five minutes before the accident.

In response to Future's request for admissions, Baum stated that the purpose of his trip on the night of the accident "had no connection . . . with [his] employment at Future," that he was not going to or coming from "any work related function," and that he was either "undertaking a personal errand" or "on [his] own personal time" when the accident occurred.

In the nine months preceding the accident, Baum had been hospitalized on three separate occasions -- in August and November 2005, and again in early April 2006 -- for treatment relating to chronic pancreatitis and alcohol abuse. Baum testified that his work performance had been negatively impacted by his drinking, which he described as "excessive." However, Baum could only speculate whether Future was aware of his problem. While Baum admitted to drinking in the presence of his co-workers at various social functions, he denied ever becoming so intoxicated "where they would think of [him] being inebriated, or quote, unquote, drunk." Baum's supervisor, Ledingham, testified that he had never witnessed Baum consume alcohol. Moreover, although Baum had been asked by colleagues whether "everything was all right," which Baum understood to mean that "[his] performance was not the best," he never received a formal reprimand from a supervisor or the company.


On July 31, 2006, plaintiffs filed an eight-count complaint against Elrac, Baum, and Enterprise. On June 12, 2007, plaintiffs filed an amended complaint adding Future as a defendant.

Plaintiffs alleged that on April 20, 2006, at approximately 8:00 p.m., Baum struck and killed plaintiffs' decedents while driving intoxicated. They further asserted that at the time of the accident, Baum was acting within the course and scope of his employment and that Future "knew or should have known defendant Baum had been intoxicated in the past while performing his duties [for Future] as a traveling sales person driving a motor vehicle." Plaintiffs also asserted that Future negligently hired, continued to employ, and supervised Baum by employing him as a traveling salesperson since it was "reasonably foreseeable that defendant Baum's chronic intoxication would lead to a motor vehicle accident."

Future's first motion for summary judgment was filed on March 28, 2008, and denied without prejudice on July 3, 2008. On July 30, 2008, two years after commencing the action, plaintiffs filed a motion to stay the litigation. The denial of such motion forms part of the basis for this appeal.

During the discovery period, Future's employee Ledingham was deposed, and the Morris County Prosecutor's Office was ordered to provide various evidence including, "all information obtained from the cell phone(s) and laptop computer(s) seized from the vehicle," a video tape of Baum, his vehicle, and his interview with the police. On January 20, 2009, Baum was deposed pursuant to court order. His Fifth Amendment right against self-incrimination was asserted on a "per question basis."

On February 25, 2010, two arbitration awards were rendered against Baum in favor of the plaintiffs' estates. The handwritten Report and Award of Arbitrators indicates that each estate was awarded $300,000 in compensatory damages, plus $50,000 in punitive damages. According to plaintiffs' brief, the awards have since been converted into final judgments.

Following the completion of Baum's deposition, Future renewed its motion for summary judgment. On April 24, 2009, the motion was granted, and an order was entered dismissing all claims against Future. Plaintiffs thereafter filed two motions for reconsideration, which were denied on May 5 and June 12, 2010. This appeal followed.



Plaintiffs first argue that the motion court erred in refusing to stay the civil action pending the criminal case against Baum. Specifically, plaintiffs urge that due to limited access to the prosecutor's files and Baum's anticipated invocation of his right against self-incrimination, they were prevented from learning information essential to their case. We disagree.

On July 3, 2008, the Law Division denied Future's first motion for summary judgment without prejudice, and directed plaintiffs' newly-retained attorney to draft a discovery order to depose Baum, who was then incarcerated. In response to this direction, plaintiffs filed a motion to stay the proceedings pending the resolution of Baum's criminal matter, so that he would be able to provide deposition testimony without forfeiting his right against self-incrimination or otherwise prejudicing his criminal defense. In the alternative, plaintiffs moved to compel Baum's deposition.

By order dated August 22, 2008, the court denied plaintiffs' motion to stay, but set a briefing schedule to address the issue of whether Baum "[had] waived his right against self-incrimination by providing written answers to discovery requests" in the civil suit. The court also extended the discovery expiration date so that plaintiffs could conduct additional discovery. While incarcerated awaiting disposition of the criminal charges, Baum was fully deposed on January 20, 2009, at the Morris County Courthouse under the auspices of the Morris County Sheriff's Department.

Plaintiffs claim that they suffered undue prejudice as a result of the court's refusal to stay the civil action pending the disposition of Baum's criminal proceedings. They also argue that because they sought monetary damages only, as opposed to equitable relief, the stay was less likely to prejudice Future and should have been granted.

We review the grant or denial of a stay under an abuse of discretion standard. Avila v. Retailers & Mfrs. Distrib., 355 N.J. Super. 350, 354 (App. Div. 2002), certif. denied, 176 N.J. 74 (2003). We will reverse only when faced with "'special equities showing abuse of discretion in that injustice would be perpetrated on the one seeking the stay, and no hardship, prejudice or inconvenience would result to the one against whom it is sought.'" Ibid. (quoting Gosschalk v. Gosschalk, 48 N.J. Super. 566, 579 (App. Div.), aff'd, 28 N.J. 73 (1958)). While the decision to grant or deny a stay is discretionary, a chief consideration is "'whether refusing to stay discovery would impose undue hardship on a defendant and would thereby expose to unnecessary adverse consequences the defendant exercising the constitutional privilege.'" Byrd v. Manning, 253 N.J. Super. 307, 318 (App. Div.) (quoting State v. Kobrin Sec. Inc., 111 N.J. 307, 314 (1988)), certif. denied, 130 N.J. 18 (1992). Where a plaintiff applies for the stay, it should only be granted where the "trial judge [is] convinced that discovery which impinges on defendant['s] right against self-incrimination [is] critical to plaintiff's case." Whippany Paper Bd. Co. v. Alfano, 176 N.J. Super. 363, 374 (App. Div. 1980).

Plaintiffs assert that they were impaired in their ability to obtain full disclosure of Baum's work-life history. However, they have not suggested any evidence supporting their theory that Future knew or should have known that Baum posed a danger to third parties due to his alcohol abuse symptoms or that he was acting within the scope of his employment when the accident occurred. Although "a plaintiff seeking a stay in the face of a defendant's refusal to testify would be more deserving of relief than a defendant seeking a similar delay," id. at 373-74; Fid. Union Bank v. Hyman, 214 N.J. Super. 177, 182 (App. Div. 1986), plaintiffs have not set forth what evidence they expect to discover once granted unfettered access to the prosecutor's file except to assert that they had "limited access to relevant and probative information" in the civil case. See J. Josephson, Inc. v. Crum & Forster Ins. Co., 293 N.J. Super. 170, 204 (App. Div. 1996) ("When the incompleteness of discovery is raised as a defense to a motion for summary judgment, that party must establish that there is a likelihood that further discovery would supply the necessary information."); Whippany Paper Bd. Co., supra, 176 N.J. Super. at 374.

Furthermore, and most importantly, the claimed undue prejudice resulting from the denial of the stay is palpably uncorroborated by the record. Plaintiffs were given ample opportunity to depose Baum, as well as "any other employee of Future," and chose to depose only Baum and his immediate supervisor. Especially because the evidence most relevant to plaintiffs' claims would have been in Future's possession and not Baum's, it cannot be said that plaintiffs were harmed, much less unduly prejudiced, by the court's ruling. We are further unpersuaded that a stay should have been granted in the interests of justice. Accordingly, the motion court's denial of plaintiffs' application for a stay was well within its discretion. Fid. Union Bank, supra, 214 N.J. Super. at 182. We discern no principled basis to disturb it.


In their second point, plaintiffs assert that the motion court erred in granting summary judgment in favor of Future. From our review of the motion record, we conclude that plaintiffs failed to establish a genuine dispute of fact -- notwithstanding being given all reasonable inferences from that record -- that Baum was acting within the scope of his employment when the accident occurred, or that Future had a duty to monitor Baum's alcoholic beverage consumption during off-duty hours. Accordingly, summary judgment was properly granted.

On appeal, we apply the same standard applied by trial courts to determine whether the "'the pleadings, depositions, answers to interrogatories and admissions on file, together with affidavits, if any, show that there is no genuine issue as to any material fact challenged and that the moving party is entitled to a judgment or order as a matter of law.'" Henry v. N.J. Dep't of Human Servs., 204 N.J. 320, 329 (2010) (quoting R. 4:46-2). Our task is to first decide whether a genuine issue of material fact existed, and if it did not, whether the motion court correctly applied the relevant law. Henry, supra, 204 N.J. at 330.

Plaintiffs advanced two theories of liability against Future: the first vicarious, based on respondeat superior and the second direct, for negligent retention and supervision. Specifically as to the vicarious liability, plaintiffs asserted that "Baum was in the regular course and scope of his employment" when "he became intoxicated . . . and struck and killed [the two teens]." As for the direct liability, plaintiffs further alleged that Future "knew or should have known of . . . Baum's chronic intoxication while on duty during his regular course and scope of employment," and therefore, "negligently hired and/or continued to employ . . . Baum as a traveling sales person who is required to travel in the course of his regular duties."

On the first theory, the motion court concluded, in viewing the facts in the light most favorable to the plaintiffs, that the evidence was not "sufficient to create a genuine issue of material fact," as to whether "[Baum] was . . . acting in the course of his employment." We agree with the Law Division's determination.

The "essence" of vicarious liability on the basis of respondeat superior is control. Galvao v. G.R. Robert Constr. Co., 179 N.J. 462, 467 (2004) (internal quotations omitted). Underlying the doctrine is the principle that an employer who exercises control over an employee in the performance of his duties, "must answer for any injury that a third person may sustain from it." Carter v. Reynolds, 175 N.J. 402, 408 (2003). Vicarious liability "'is a rule of policy, a deliberate allocation of risk.'" Carter v. Reynolds, 345 N.J. Super. 67, 75 (App. Div. 2001) (quoting Hinman v. Westinghouse Elec. Co., 88 Cal. Rptr. 188, 190 (Cal. 1970)), aff'd, 175 N.J. 402 (2003).

The losses caused by torts of the servant which are more or less certain to occur in the conduct of the master's enterprise, and are closely connected with it, are placed upon the employer because he is better able to bear them, and to distribute them, through prices, rates or liability insurance, to the public. [Galvao, supra, 179 N.J. at 467 (quoting Eule v. Eule Motor Sales, 34 N.J. 537, 544 (1961)).]

To hold an employer liable for the acts of its employee, plaintiffs must demonstrate "(1) that a master-servant relationship existed and (2) that the tortious act of the servant occurred within the scope of that employment." Carter, supra, 175 N.J. at 409. The first element is plainly satisfied in the instant case because both parties agree that Baum was employed by Future on the date of the accident. The second element, whether the particular tortious conduct took place within the scope of the Baum's employment, requires a more nuanced analysis of the facts.

Factors frequently relied on in determining whether an employee was acting within the scope or course of employment include, "the nature of the employment, the duties of the employee, whether the accident occurred in the course of fulfilling some job-related function, or whether it occurred during a trip personal to the employee." Id. at 411 (quoting Christopher Vaeth, J.D., Annotation, Employer's Liability for Negligence of Employee in Driving His or Her Own Automobile, 27 A.L.R.5th 174, 174 (1995)). "Conduct of a servant is not within the scope of employment if it is different in kind from that authorized, far beyond the authorized time or space limits, or too little actuated by a purpose to serve the master." Ibid. (quoting Restatement (Second) of Agency § 228 (1958)).

The only evidence adduced by plaintiffs to show that Baum was acting within the scope of his employment was the fortuitous presence of work-related documents in the backseat of the rented vehicle, and that he checked his voicemail and listened to a message believed to be left by a co-worker at approximately 7:19 p.m. on the date of the accident. This is insufficient as a matter of law to implicate the employer in the after-hours torts of its employee.

Baum was plainly on his personal time when the accident occurred, and was engaged in a task entirely separate from his employment with Future. The presence of work-related materials in his vehicle is not enough to suggest that he was performing a service for Future while he was driving or that his trip to his mother's house was motivated by his employer. A conjectural work-related cellular telephone call -- the retrieval of a message from Baum's voice mailbox -- is likewise far too attenuated to link the employer with Baum's conduct more than twenty-five minutes later.

Moreover, there is no suggestion on the part of plaintiffs that Future either knew about Baum's incapacity on the night in question or that it had the ability to exercise control over his resulting actions. Galvao, supra, 179 N.J. at 468. In sum, none of the facts, by themselves or when viewed together, establish "a sufficient nexus" to Future such that a reasonable jury could conclude that Baum was acting within the scope or course of his employment when the accident occurred. Riley v. Keenan, 406 N.J. Super. 281, 291 (App. Div.), certif. denied, 200 N.J. 207 (2009).

Plaintiffs also argue that Future should be liable for the negligent hiring, supervision, and retention of Baum, on the theory that it was aware of his alcohol problem and allowed him to transfer to an outside sales position, which necessarily involved less supervision and control. The motion court disagreed, holding that "it can[not] be reasonably held . . . that a duty existed on behalf of Future to members of the public injured by Mr. Baum on his own time." The court further noted that under our State's negligence jurisprudence, in its current state, an employer's duty does not extend "to deal[ing] with functional alcoholics who injure persons on their own time." We agree.

The related doctrines of negligent hiring, supervision, and retention are distinct and broader forms of liability than under the doctrine of respondeat superior. Di Cosala v. Kay, 91 N.J. 159, 174 (1982); Lingar v. Live-In Companions, Inc., 300 N.J. Super. 22, 29-30 (App. Div. 1997). Significantly, there is no requirement under these theories that an employee have acted within the scope of his employment. Johnson v. Usdin Louis Co., 248 N.J. Super. 525, 528 (App. Div.), certif. denied, 126 N.J. 386 (1991). Rather, the basis for liability stems from the principle that "[a]n employer whose employees are brought into contact with members of the public in the course of their employment is responsible for exercising a duty of reasonable care in the selection or retention of its employees." Di Cosala, supra, 91 N.J. at 170-71; see also Lingar, supra, 300 N.J. Super. at 30. Under a negligent retention theory, "the question presented is whether the employer, knowing of its employee's unfitness, incompetence or dangerous attributes when it . . . retained [him], should have reasonably foreseen the likelihood that the employee through his employment would come into contact with members of the public, such as the plaintiff, under circumstances that would create a risk of danger to such persons because of the employee's qualities." Di Cosala, supra, 91 N.J. at 177.

There are two general showings that a plaintiff must make to impose liability under these theories. First, the employer must have known or had reason to know "of the employee's dangerous characteristics and the reasonable foreseeability of harm to other persons as a result of these qualities." Ibid.; Johnson, supra, 248 N.J. Super. at 528. Second, a plaintiff must show proximate causation: that the injury to the particular plaintiff was foreseeable by the employer. Ibid. A plaintiff will recover only when a duty owed to the injured third-party can be established in law and the breach of said duty can be proven in fact. Riley, supra, 406 N.J. Super. at 290; Johnson, supra, 248 N.J. Super. at 529.

Whether a duty exists is a question of law, the resolution of which is governed by "the foreseeability and severity of the risk of harm, the opportunity and ability to exercise care to prevent the harm, the comparative interests and relationships between or among the parties and, ultimately, fairness and public policy." Riley, supra, 406 N.J. Super. at 291. It is a fact-specific analysis that should result in "solutions that properly and fairly resolve the specific case and generate intelligible and sensible rules to govern future conduct." Hopkins v. Fox & Lazo Realtors, 132 N.J. 426, 439 (1993).

The first and most fundamental factor is foreseeability. "'[F]oresight, not hindsight, is the standard by which one's duty of care is to be judged.'" Lingar, supra, 300 N.J. Super. at 30 (quoting Johnson, supra, 248 N.J. Super. at 529). In the instant case, the decedents were unknown to Future and had no relation to Baum's employment. Baum was not traveling to or from work, but was on his own time, operating a vehicle rented and paid for by him, for a purpose totally separate from his work for Future. Although Baum had driven to a work appointment earlier that day, and conceded that it was likely he had been consuming vodka from a water bottle during that time, Baum did not set foot in Future's Parsippany office, and evidence of his condition to Future is absent. As such, there is nothing to suggest that Future knew or should have known that his alcoholic beverage consumption on the date in question would impair his ability to drive safely. Even if Future had reason to know that Baum drank on a regular basis, it had no way of preventing or knowing of Baum's particularly inebriated condition on the date in question, well after the usual workday ended.

Arguably, if Baum's employer knew or should have known about his drinking problem, it was foreseeable that he could injure someone while driving. However, "the ability to foresee injury does not in itself establish the existence of a duty." Piscitelli v. Classic Residence by Hyatt, 408 N.J. Super. 83, 113 (App. Div. 2009). Notions of fairness and policy must also be considered. Ibid. In Otis Engineering Corp. v. Clark, 668 S.W.2d 307 (Tex. 1983) (cited with approval in Riley, supra, 406 N.J. Super. at 292), an employer knew its employee had been drinking on the job and sent the employee home on the night of the accident because he was drunk. Id. at 308. The widowers of the accident victims brought suit against the employer when the employee killed two women in an automobile accident shortly after he left work. Ibid. In that case, the court reversed summary judgment for the employer and held that "when, because of an employee's incapacity, an employer exercises control over the employee, the employer has a duty to take such action as a reasonably prudent employer under the same or similar circumstances would take to prevent the employee from causing an unreasonable risk of harm to others." Otis Eng'g Corp., supra, 68 S.W.2d at 311.

Here, Future was completely unaware of Baum's physical state on the date in question. Future did not supply the vodka to Baum, Baum was not intoxicated from drinking with a client for business purposes earlier that day, and Baum was neither driving to nor returning from work when the accident occurred. Therefore, even if Future had a duty to monitor Baum's drinking habits on the job, as plaintiffs assert, plaintiffs cannot establish a causal connection with the alleged negligence and the resultant harm.

Furthermore, Baum returned home from his work appointment sometime in the afternoon where he likely voluntarily consumed more alcoholic beverages before departing for his mother's home. This court has noted that "[w]here a work gap is involved," courts have frequently framed the duty question as whether the employee's impaired condition arose out of his employment.

Riley, supra, 406 N.J. Super. at 294. Here, not only did Baum's final intoxication not arise out of his employment, Future had no basis to interfere with Baum's evening driving and prevent the accident.

This case is also distinguishable from those where the employer supplies the employee with a dangerous instrumentality that is used to cause injury to a third-party. In Corridon v. Bayonne, 129 N.J. Super. 393 (App. Div. 1974), a police officer volunteered to participate in a street parade in New York. Following the parade, he attended a buffet at a Polish-American Home in Bayonne. Id. at 396. After leaving the buffet, already intoxicated, the officer, who had no recollection of the events of the evening following the buffet, stopped at a bar where he shot a patron in the head. Ibid.

In that case there was credible evidence that the employer "knew or might reasonably have known of [the officer's] intoxication in public places on a number of occasions between" his hiring and the shooting, and, therefore, even though the officer was off-duty when the accident occurred, the court held that because "the hazard of firearms is so extraordinarily great," the city had a duty to supervise "those whom it arms." Id. at 397. Likewise in Di Cosala, another "enhanced hazard" case, the danger was partially created "through defendants' employment of [the employee]" since the firearm used to fatally injure plaintiff "was furnished as part of [the employee's] employment" and the accident took place in lodging provided by the employer. Id. at 178. In the instant case, no such instrumentality was provided, the presence of which might have extended Future's duty to supervise Baum to off-duty hours.


In summary, we are satisfied that the Law Division appropriately exercised its discretion in denying plaintiffs' application for a stay. Additionally, the court's grant of summary judgment in favor of Future was entirely proper and fully consonant with summary judgment jurisprudence. The later denial of plaintiffs' two motions for reconsideration was likewise correct.


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