January 2007 - General Employment Law - Court

Spencer v. V.I.P., Inc.
2006 ME 120, 12/05/2006
DANA

Summary judgment denied employer contesting vicarious liability for tort injuries to third party by employee driving home from volunteering, for cash and a T-shirt, at employer function.

The Court ruled that summary judgment was not appropriate as there were genuine factual issues as to whether, under tort law, an employee's injuries occurred within the scope of his employment. Two dissenters argued that the Court's opinion is "unprecedented" and changes Maine tort law regarding the coming and going rule.

The employee was an hourly worker who volunteered to work one weekend day at the employer's annual promotional show, held off site. Volunteering employees received $25.00 in cash and a T-shirt. While the employee was driving home directly and immediately after the event, his vehicle collided with another car, killing one passenger and injuring two others in that car.

The survivors and decedent's estate sued the employee individually as well as his employer. The employer moved to have the case against it dismissed as a matter of law, on the basis that the employee was not acting within the scope of employment and thus the employer had no vicarious liability. The Oxford County Superior Court granted the motion, dismissing the case, and the plaintiffs appealed. On appeal, the Law Court vacated and remanded the case back to the lower court, with Chief Justice Saufley and Justice Levy filing a lengthy dissent.

The majority of the Court ruled that several facts could support finding that the employee was acting within the scope of his employment. First, there was testimony that the $25.00 that hourly employees received was intended to cover expenses such as gas, hence the Court found it possible that "the travel was part of a task [the employee] was employed to perform." Secondly, the travel that led to the accident occurred within a reasonable time, immediately after the employee completed his volunteer work. Finally, it was arguable that the travel was "actuated by a purpose to serve" the employer, since the employee had to drive to the event site.

Chief Justice Saufley and Justice Levy, in a lengthy and vigorous dissent, would affirm the lower court's ruling that the employee was not acting within the scope of his employment. They warned that the Court's "unprecedented" decision could "ultimately cause employers to become the insurers for all harm caused on the highways by their employees while driving to or from work." They added that it changes Maine law so it is now "out of step with tort law across the country," and such a decision should be left for the legislature.

In their opinion, the Court misapplied the rules of vicarious liability in the Restatement (Second) of Agency (1958), by applying section 228, the test for determining whether a servant's conduct is within the scope of employment, "in a vacuum." Specifically, another section notes that a master has no vicarious liability for a servant "performing other service" when the master has "no control or right to control" that service. Another section explicitly states that an employer has no vicarious liability for torts committed by a commuting employee. Following the Restatement, the dissenters would find that the employer had no liability as it had no control or right to control the employee's drive to or from the event, plus once the employee left the site, his motives were "entirely personal."

The dissenters added that numerous appellate courts across the country, including Massachusetts, Utah, Washington, and Nevada, have held as a general rule that an employee is not acting within the scope of employment while commuting because he is not under the employer's control or serving the employer's purpose. The dissenters acknowledged exceptions to the rule, including the dual-purpose exception, in which the employee is serving both his own and the employer's purposes while commuting, and thus is partly under the employer's control or acting to benefit the employer.

The plaintiffs here argued that the employee was on a so-called special errand for the employer, and the dissenters agreed that the special errand exception, if applied broadly, could encompass travel. However, they stated that the exception has usually been applied when the travel also included an errand for the employer, such as a pickup or delivery, which was not the case here. In cases such as here where the employee is merely working on a different day or at a different location, the exception has usually not been applied.

In a footnote, the dissenters made clear that there is a distinction between the coming and going rule in workers' compensation law and for vicarious liability insurance. In general, the standards for arising out of employment are broader in workers' comp law than in tort law, because the two areas have different purposes and policies.