Mannes v. Healey12/2/1997
The opinion of the court was delivered by
HAVEY, P.J.A.D.
In this personal injury action, plaintiff was struck by a vehicle owned and operated by defendant Candace Healey while Healey was travelling from her home to her part-time job with defendant Liberty Mortgage Company (Liberty). Judge Oles, in the Law Division, granted summary judgment in Liberty's favor, concluding that Healey was not acting within the course of her employment with Liberty at the time of the accident. We affirm. We hold that generally an employee's commutation to and from work is not within the scope of employment for the purposes of imposing liability upon the employer for the negligence of the employee-driver.
Considering the evidentiary material in a light most favorable to plaintiff, see Brill v. Guardian Life Ins. Co. of America, 142 N.J. 520, 540, 666 A.2d 146 (1995), these are the facts. Healey was employed as a part-time loan officer with Liberty at its offices in Little Egg Harbor, Ocean County. She did not keep regular business hours. She had a key to the office and access to it at any time during the day or night. She often stopped at the Liberty office after its regular business hours to pick up rate sheets, application forms, or make photocopies and business calls.
The accident occurred at 8:30 p.m. while Healey was en route from her home to the Liberty office to pick up mortgage application forms. Plaintiff, a pedestrian, was struck by Healey's vehicle when it turned from Radio Road into the entrance of the Liberty office parking lot.
"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; it is actuated, at least in part, by a purpose to serve the master.'" Di Cosala v. Kay, 91 N.J. 159, 169, 450 A.2d 508 (1982) (quoting Restatement (Second) of Agency, § 228 (1957); see also Abbamont v. Piscataway Tp. Bd. of Educ., 138 N.J. 405, 416, 650 A.2d 958 (1994).
Most courts endorse the general rule that an employee driving his or her own vehicle to and from the employee's workplace is not within the scope of employment for the purpose of imposing vicarious liability upon the employer for the negligence of the employee-driver. Weaver v. United States Coast Guard, 857 F. Supp. 539, 545 (S.D. Tex. 1994), aff'd, 53 F.3d 1282 (5th Cir. 1995); Skinner v. Braum's Ice Cream Store, 890 P.2d 922, 924 (Okla. 1995); Logan v. Phillips, 891 S.W.2d 542, 544 (Mo. Ct. App. 1995); Faverty v. McDonald's Restaurants, Inc., 133 Ore. App. 514, 892 P.2d 703, 708 (Or. Ct. App. 1995); Dillman v. Great Dane Trailers, Inc., 649 N.E.2d 665, 667 (Ind. Ct. App. 1995); Vaughan v. Hair, 645 So. 2d 1177, 1179 (La. Ct. App. 1994), cert. denied, 650 So. 2d 1186 (1995); Kimball v. United States, 262 F. Supp. 509, 513 (D.N.J. 1967); see also cases cited by Christopher Vaeth, Annotation, Employer's Liability for Negligence of Employee in Driving His or Her Own Automobile, 27 ALR 5th §§ 2, 3 at 218-38 (1995). This general rule is sometimes ascribed to the theory that employment is suspended from the time the employee leaves the workplace until he or she returns, or that in traveling to and from work, the employee is not rendering service to the employer. Hinman v. Westinghouse Elec. Co., 2 Cal. 3d 956, 471 P.2d 988, 990-91, 88 Cal. Rptr. 188 (Ca. 1970). Other courts focus on the fact that, while the commute is work motivated, the element of "control" by the employer is lacking. Jones v. Blair, 387 N.W.2d 349, 355 (Iowa 1986); Logan, (supra) , 891 S.W.2d at 554.
There are several recognized exceptions to this general rule, none of whi
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