June 8, 2012
SUSAN J. LAIRD, EXECUTRIX OF THE ESTATE OF STEVEN J. LAIRD, DECEASED, AND SUSAN J. LAIRD, INDIVIDUALLY, PLAINTIFF-APPELLANT,
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.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION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:
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, but must only decide whether there are any such issues that are material to resolving the dispute. Ibid. However, we review issues of law de novo and accord no deference to the trial court's conclusions on issues of law. Zabilowicz v. Kelsey, 200 N.J. 507, 512-13 (2009).
Under the doctrine of respondeat superior, an employer may be held liable for the actions of an employee if "at the time of the occurrence, the employee was acting within the scope of his or her employment." Carter v. Reynolds, 175 N.J. 402, 409 (2003). An employee is acting within the scope of his or her employment if the action is "'of the kind [the employee] 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.'" DiCosala v. Kay, 91 N.J. 159, 169 (1982) (quoting Restatement (Second) of Agency, § 228 (1957)).
Generally, however, respondeat superior does not extend to employee conduct occurring when the employee is traveling to and from work in his or her own vehicle. Mannes v. Healey, 306 N.J. Super. 351, 354 (App. Div. 1997). An employee "going to" or "coming from" the workplace is not deemed to be acting within the scope of employment. Carter, supra, 175 N.J. at 412 (citations omitted). The rationale for this "going and coming" rule is that "when employees travel to or from work, they are deemed to be acting in their own interests without constraint by the employer regarding the method or means of the commute." Id. at 413.
It is undisputed that Whager had not yet arrived at the Hitran site at the time of the accident. However, the facts viewed most favorably to plaintiff indicate that per Securitas's instructions, at 8:00 p.m., Whager arrived at a location in close proximity to the Hitran site and waited until "dusk" before proceeding to the Hitran property. This conduct could certainly be viewed as occurring "substantially within the authorized time and space limits" and "actuated . . . by a purpose to serve the master." Additionally, Securitas billed Hitran for Whager's services as of 8:00 p.m. As such, a genuinely disputed issue of fact existed as to whether Whager was "going to work" after leaving the waiting area or whether he had already commenced working once he arrived.
Moreover, even if Whager's conduct is deemed to be viewed as going to work at the time of the accident, rather than at work, New Jersey recognizes three "dual purpose" exceptions to the going and coming rule. Under these exceptions, an employer may be held liable for the negligence of the employee because at the time of the conduct, the employee was serving an interest of the employer as well as a personal interest. O'Toole v. Carter, 345 N.J. Super. 345, 568 (App. Div. 2001), aff'd, 175 N.J. 921 (2003). Thus, respondeat superior has been held to apply when:
(1) at the behest of the employer, the employee is engaged in a special errand or mission outside the ordinary confines of the employee's job description; (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" and is involved in an accident while traveling to a site at the employer's behest. Carter, supra, 175 N.J. at 414-18; Mannes, supra, 306 N.J. Super. at 354-55.
Here, there is a question of fact as to whether Securitas required Whager to drive his personal vehicle to work to perform work-related tasks on the day of the accident. The Securitas branch and fuel service managers both testified that for certain locations, including the Hitran site, employees were required to bring a vehicle as shelter and, in the event of bad weather, would not be able to work without it. Additionally, the branch manager testified it was unlikely that Whager would have been assigned to the Hitran property if he did not have a vehicle. A reasonable fact-finder could thus conclude that having a vehicle was a condition of Whager's employment, and the use of his vehicle for shelter while performing surveillance was a work-related task sufficient to bring this case within the required-vehicle exception to the going and coming rule. Accordingly, we reverse the grant of summary judgment in favor of Securitas and remand for trial.
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