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QUESTION OF FACT WHETHER EMPLOYEE WAS ACTING WITHIN THE SCOPE OF HIS EMPLOYMENT WHEN THE CAR ACCIDENT OCCURRED.

The Second Department determined there was a question of fact whether the driver of a car involved in an accident was acting within the scope of his employment at the time. Therefore Supreme Court erred when it dismissed the complaint against the employer, alleging liability under the doctrine of respondeat superior. Here the employee was driving to the employer’s house, which had been used as the employer’s office, when the accident occurred:

 

The doctrine of respondeat superior renders an employer vicariously liable for torts committed by an employee acting in furtherance of the employer’s business and within the scope of his or her employment … . “An employee’s actions fall within the scope of employment where the purpose in performing such actions is to further the employer’s interest, or to carry out duties incumbent upon the employee in furthering the employer’s business” … . “Conversely, where an employee’s actions are taken for wholly personal reasons, which are not job related, his or her conduct cannot be said to fall within the scope of employment” … .

“An act is considered to be within the scope of employment if it is performed while the employee is engaged generally in the business of his employer, or if his act may be reasonably said to be necessary or incidental to such employment” … . “[T]he employer may be liable when the employee acts negligently or intentionally, so long as the tortious conduct is generally foreseeable and a natural incident of the employment” … . “[B]ecause the determination of whether a particular act was within the scope of the servant’s employment is so heavily dependent on factual considerations, the question is ordinarily one for the jury” … . Brandford v Singh, 2016 NY Slip Op 00920, 2nd Dept 2-10-16

 

NEGLIGENCE (MEDICAL MALPRACTICE, INFORMED CONSENT, DEFENDANT’S FAILURE TO AFFIRMATIVELY DEMONSTRATE SCARRING DISCUSSED PRIOR TO SIGNING OF CONSENT FORM AND FAILURE TO DEMONSTRATE PLAINTIFF WOULD HAVE GONE THROUGH WITH THE SURGERY DESPITE FULL DISCLOSURE REQUIRED DENIAL OF DEFENSE SUMMARY JUDGMENT MOTION)/MEDICAL MALPRACTICE (INFORMED CONSENT, DEFENDANT’S FAILURE TO AFFIRMATIVELY DEMONSTRATE SCARRING DISCUSSED PRIOR TO SIGNING OF CONSENT FORM AND FAILURE TO DEMONSTRATE PLAINTIFF WOULD HAVE GONE THROUGH WITH THE SURGERY DESPITE FULL DISCLOSURE REQUIRED DENIAL OF DEFENSE SUMMARY JUDGMENT MOTION)
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SECOND SUMMARY JUDGMENT MOTION PROPERLY ENTERTAINED; ABSENCE OF SPECIAL RELATIONSHIP... FAILURE TO DEMONSTRATE SCARRING WAS DISCUSSED PRIOR TO THE SIGNING OF THE CONSENT...