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Susan J. Laird, Executrix of the v. Tommy B. Whager and Richard J. Fallon

June 8, 2012

SUSAN J. LAIRD, EXECUTRIX OF THE ESTATE OF STEVEN J. LAIRD, DECEASED, AND SUSAN J. LAIRD, INDIVIDUALLY, PLAINTIFF-APPELLANT,
v.
TOMMY B. WHAGER AND RICHARD J. FALLON, DEFENDANTS, AND SECURITAS SECURITY SERVICES U.S.A., INC., DEFENDANT-RESPONDENT.



On appeal from the Superior Court of New Jersey, Law Division, Somerset County, Docket No. L-1819-07.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued October 13, 2011 -

Before Judges Axelrad and Sapp-Peterson.

In this appeal, we consider whether defendant, Tommy B. Whager, was acting within the scope of his employment when he became involved in a motor vehicle collision in which plaintiff's decedent, Steven J. Laird, sustained fatal injuries. The motion judge concluded he was not and granted summary judgment to his employer, defendant, Securitas Security Services U.S.A., Inc. (Securitas), dismissing plaintiff's claims as to it. We reverse.

The facts, when viewed in a light most favorable to plaintiff, Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995), reveal that on Sunday, July 1, 2007, at 9:17 p.m., co-defendant, Richard J. Fallon, was traveling north on Route 31 in Somerset County when a south-bound vehicle, owned and operated by Whager, turned in front of Fallon's vehicle. Fallon came to an abrupt stop and avoided making contact with Whager's vehicle. However, Laird, who was operating a motorcycle behind Fallon, did not stop and struck Fallon's vehicle. Laird succumbed to his injuries.

At the time of the accident, Whager was employed by Securitas as a security guard. Approximately two weeks prior to the accident, Securitas and Hitran Company (Hitran) entered into a Security Services Agreement pursuant to which Hitran would pay an hourly rate for "[o]ne security [o]fficer working Monday to Friday from 22[:]00 - 04[:]00, Saturday from 20[:]00 - 06[:]00 [and] Sunday [from] 20[:]00 - 04[:]00" to provide security services on a Hitran property located on Route 31. Securitas assigned Whager to surveil the Hitran property. Just before the collision, Whager was traveling from a gas station on Route 31, where, per his employer's direction, he arrived at approximately 8:00 p.m. and had been sitting in his car waiting for dark, at which time he would proceed to the Hitran property to perform the surveillance.

Securitas branch manager, Robert Zdunowski, when deposed, testified that the Securitas-Hitran agreement was orally modified to provide that the security officer not arrive on the Hitran premises until "dusk." However, Securitas billed Hitran for Whager's time beginning at 8:00 p.m. each Sunday, including the day of the accident. Zdunowski also testified that there were times when employees would use their vehicles in work-related duties and were required to bring their vehicles as shelter "[i]f they want to work." He also testified that if Whager did not have a vehicle, he "most likely" would not have been selected for the Hitran assignment. Edwin Ortiz, Securitas's fuel service manager, similarly testified that an employee would not be able to work at the Hitran site without a vehicle because he would need it for shelter in the event of bad weather.

Prior to the start of trial, Securitas filed a motion for summary judgment. Securitas maintained that Whager was not acting within the scope of his employment at the time of the accident. Rather, it argued Whager had not yet arrived at work but was instead traveling to work in his privately-owned vehicle. The motion judge granted summary judgment to Securitas, reasoning that "[Whager] was on his way to work, [he] had not begun work yet." Although recognizing "[t]here is a discrepancy in the timesheet[s]," the judge did not believe the timesheets to be "probative as to all of the issues[,]" and further concluded: "The fact that he drove his own car, drove from home with an assignment that had not yet begun all leads . . . just to one conclusion, which is in fact that Mr. Whager was not working - - was not on the clock for Securitas in reference to the matter." On appeal, plaintiff raises the following issues for our consideration:

POINT I

ON THE ISSUE OF RESPONDEAT SUPERIOR, THE TRIAL COURT ERRED BY DENYING SUMMARY JUDGMENT TO . . . PLAINTIFF AND GRANTING SUMMARY JUDGMENT IN FAVOR OF . . . DEFENDANT.

A. DEFENDANT WHAGER WAS ACTING WITHIN THE SCOPE OF HIS EMPLOYMENT FOR SECURITAS AT THE TIME OF THE ACCIDENT.

B. DEFENDANT WHAGER'S USE OF HIS VEHICLE FOR EMPLOYMENT PURPOSES IMPOSES VICARIOUS LIABILITY UPON SECURITAS.

In reviewing a trial court's grant of summary judgment, we use the same standard of review as the trial court. Prudential Prop & Cas. Ins. Co. v. Boylan, 307 N.J. Super. 162, 167 (App. Div.), certif. denied, 154 N.J. 608 (1998). We first decide whether there was a genuine issue of material fact. Walker v. Alt. Chrysler Plymouth, 216 N.J. Super. 255, 258 (App. Div. 1987). If there was not, we then decide whether the lower court's ruling on the law was correct. Ibid. In determining whether there exists a genuine issue of material fact, we consider "whether the competent evidential materials presented, when viewed in the light most favorable to the non-moving party, are sufficient to permit a rational factfinder to resolve the alleged disputed issue in favor of the non-moving party." Brill, supra, 142 N.J. at 540. If "there exists a single, unavoidable resolution of the alleged disputed issue of fact, that issue should be considered insufficient to constitute a 'genuine' issue of material fact." Ibid. The trial court must not decide disputed issues of fact, ...


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