Defendant, Frasier, was driving to work in his own car when he was involved in a rear-end collision with plaintiff. Plaintiff sued defendant’s employer under the doctrine of respondeat superior. The Fourth Department, reversing Supreme Court, determined defendant’s motion for summary judgment should have been granted. The defendant was not acting within the scope of his employment when the accident occurred:
As a general rule, an employee driving to and from work is not acting in the scope of his [or her] employment . . . Although such activity is work motivated, the element of control is lacking” … . “Although the issue whether an employee is acting within the scope of his or her employment generally is one of fact, it may be decided as a matter of law in a case such as this, in which the relevant facts are undisputed” … .
Contrary to plaintiffs’ contention, the mere fact that Frasier carried his own tools in his vehicle was insufficient to “transform the use of the automobile into a special errand [for defendant] or an extension of the employment” … . Moreover, the fact that Frasier drove a coworker to work that morning is of no significance because he was not directed to do so, and the carpool was based on the employees’ “personal arrangement” … . Finally, the fact that defendant paid for lodging for Frasier while he was at a remote work site also does not require a different finding inasmuch as defendant did not require its employees to stay at the procured hotel, and the employees did not have “to inform defendant of their whereabouts [outside of working hours]” … . Figura v Frasier, 2016 NY Slip Op 07525, 4th Dept 11-10-16
NEGLIGENCE (DEFENDANT EMPLOYEE WAS NOT ACTING WITHIN THE SCOPE OF HIS EMPLOYMENT WHEN THE REAR-END COLLISION OCCURRED; DEFENDANT WAS DRIVING HIS OWN CAR TO WORK)/EMPLOYMENT LAW (NEGLIGENCE, RESPONDEAT SUPERIOR, DEFENDANT EMPLOYEE WAS NOT ACTING WITHIN THE SCOPE OF HIS EMPLOYMENT WHEN THE REAR-END COLLISION OCCURRED; DEFENDANT WAS DRIVING HIS OWN CAR TO WORK)/RESPONDEAT SUPERIOR (DEFENDANT EMPLOYEE WAS NOT ACTING WITHIN THE SCOPE OF HIS EMPLOYMENT WHEN THE REAR-END COLLISION OCCURRED; DEFENDANT WAS DRIVING HIS OWN CAR TO WORK)