Employer Responsibility For Employee Actions Under Respondeat Superior Doctrine
WHEN WILL AN EMPLOYER BE RESPONSBILE FOR THE ACTIONS OF ITS EMPLOYEE PURSUANT TO THE DOCTRINE OF RESPONDEAT SUPERIOR?
Under the doctrine of Respondeat Superior, an employer may be found liable
for the negligent actions of its employee if, at the time of the negligent
action, the employee was acting within the course or scope of his or her
employment. Carter v. Reynolds, 175 N.J. 802 (2003); Lehmann v. Toys ‘r Us,
132 N.J. 587 (1993). The theory behind this doctrine is based upon the fact
that a person who derives a benefit or advantage from the acts performed by
another must answer for injuries or damages caused in the performance of
those acts to a third person. Carter, 175 N.J. at 409 citing Winkelstein v.
Solitare, 129 N.J.L. 38, 40 (1942). In order to establish an employer’s
liability for the actions of his employee in a tort action, plaintiff must
prove: 1. that a master/servant relationship existed and 2. that the
tortious conduct of the employee occurred within the “scope of his
employment.” Id. at 409.
With regard to the first prong of the two-prong analysis of the Respondeat
Superior test, an employee will qualify as a servant if that person is
“employed to employ services in the affairs of [the employer] and who with
respect to the physical conduct in the performance of the services is
subject to the other’s control or right to control.” Id. citing Restatement
(Second) of Agency §220 (1958). Additionally, in the event that the master,
or employer, is taking the position that the tort feasor is not a servant
but, instead, is an independent contractor, the Restatement (Second) of
Agency sets forth various factors to consider in making a determination
concerning the independent contractor/servant dichotomy. Id. at 409-410.
However, because it is undisputed that defendant Torchia was an “employee”
of Acme Supermarkets on the date of the accident, such analysis is not
required in the present litigation.
Unfortunately, the determination of whether a tortfeasor was within the
course or scope of his employment at the time the tortious act was
committed, is significantly more complex. Because the legal term “scope of
employment” in and of itself is rather vague and ambiguous, various courts
have looked to various factors in determining whether a tortfeasor’s conduct
falls within the “scope of employment.” Id. at 410-411. For instance, some
of the factors 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. (citations omitted). New Jersey courts, for the
most part, have turned to and relied upon the scope and analysis of
Restatement (Second) of Agency at §228 and 229. Id. Section 228 states
that an employee’s conduct falls within the scope of employment if: a. the
conduct is of the kind he is employed to perform; b. it occurs substantially
within the authorized time and space limits; c. it is actuated, at least in
part, by a purpose to serve the master. Id. citing Restatement (Second) of
Agency at §228. Additionally, Restatement §229 sets forth additional
factors to be considered by the court in determining whether an employee is
acting within the course of his employment. The general principle provided
by §229 indicates that unauthorized conduct on behalf of an employee will be
considered to be within the scope or course of employment if the
unauthorized conduct is of the same general nature of that authorized or
incidental to the conduct authorized. Id. The Restatement sets forth
various factors to determine whether unauthorized conduct is “so similar to
or incidental to the conduct authorized as to be within the scope of
employment.” Id. citing Restatement (Second) of Agency §229. The factors
of §229 relevant to the within litigation are as follows: “a. whether or
not the act is one commonly done by servants; b. the time, place and purpose
of the act; … f. whether or not the master has reason to expect that such
an act will be done; g. the similarity in quality of the act done to the act
authorized; …” Id. at 412 citing Restatement (Second) of Agency, §229.
Against this backdrop, courts of this state have previously held that
employees who are “going to” or “coming from” their place of employment are
not considered to be acting within the course or scope of their employment.
(The going and coming rule). Id. at 412; Mannes v. Healey, 306 N.J. Super.
351, 353-354 (App. Div. 1997). Importantly, the “going and coming rule” is
based upon the fact that the employer loses the element of control over an
employee when an employee leaves the work place until he or she returns to
the work place, Mannes, supra, 306 N.J. Super. at 354, and that the employer
derives absolutely no benefit from the employee’s commute. Id. “In
essence, when employees travel to or from work they are deemed to be acting
in their own interests without constraints by the employer regarding the
method or means of the commute.” Carter, supra 175 N.J. at 413.
Importantly, as is relevant to the within matter, there are at least three
exceptions to the “going and coming rule”. They are: 1. when the employee
is engaged in a special errand or mission on the employer’s behalf; 2. when
the employer requires that the employee drive his or her personal vehicle to
work; 3. when the employee is on call. Id. citing Mannes, supra, 306 N.J.
Super. at 354-355. Clearly, the second exception is not applicable to the
within litigation. However, the first and third exceptions must be further
The above referenced exceptions to the “going and coming rule” are deemed
“dual purpose” exceptions on the basis that the employer derives some
benefit out of the employee’s actions. Id. “Unlike ordinary commutation in
which an employer really has no interest, each of the noted exceptions
involves some control over the employee’s actions and a palpable benefit to
be reaped by the employer, thus squarely placing such conduct back into the
vicarious liability construct of the Restatement.” Id., 175 N.J. at 414.
In Ricciardi v. Damar Products Co., 45 N.J. 54 (1965), the Supreme Court of
this state held that an employee’s attendance at a company picnic qualified
as a special errand or special mission has to fall within the scope of the
employee’s employment. In Ricciardi, the plaintiff’s decedent was killed in
a motor vehicle accident on July 2, 1960 while returning home from a picnic
sponsored by her employer. Ricciardi, supra 45 N.J. at 59. Importantly,
the plaintiff’s decedent was not required to attend the picnic and received
no compensation in exchange for attending same. Id. Instead, the
employer’s vice president encouraged employees’ attendance at the picnic
indicating that the picnic was intended to improve employer/employee
relations. Id. In determining whether plaintiff’s decedent’s death was
covered under the worker’s compensation statutory scheme (i.e. whether the
death occurred in the course of the employee’s employment), the court looked
to the “special errand or mission” exception to the “going and coming rule”.
Id. at 61. In determining that the accident was compensable, the Supreme
Court focused on the benefit of the employee’s attendance at the picnic to
the employer. Id. at 61. “Here the employer could not achieve the business
aim of the outing unless the employees reached the picnic scene. Travel to
and from it were of course essential.” Id. at 61 (emphasis added).