The Fourth Department, reversing Supreme Court, over a two-justice dissent, determined the complaint against the company which owned a truck which struck plaintiff should not have been dismissed. The driver of the truck, an employee, was using it for personal purposes (driving bar to bar) at the time of the accident and was not acting within the scope of his employment. The company was not liable under the doctrine of respondeat superior. However, there was a question of fact whether the driver was using the truck with the company’s permission at the time of the accident, rendering the company liable pursuant to the Vehicle and Traffic Law:
“It is well settled that Vehicle and Traffic Law § 388 (1) creates a strong presumption that the driver of a vehicle is operating it with the owner’s permission and consent, express or implied, and that presumption continues until rebutted by substantial evidence to the contrary” … . Even in the case of substantial evidence to the contrary, the issue of implied permission is ordinarily a question of fact for a jury … . The Court of Appeals … went so far as to state that “uncontradicted statements of both the owner and the driver that the driver was operating the vehicle without the owner’s permission will not necessarily warrant a court in awarding summary judgment for the owner” … . Baker v Lisconish, 2017 NY Slip Op 08943, Fourth Dept 12-22-17
NEGLIGENCE (TRAFFIC ACCIDENT, EMPLOYMENT LAW, VEHICLE AND TRAFFIC LAW, ALTHOUGH THE EMPLOYEE OF THE OWNER OF THE TRUCK WAS NOT ACTING WITHIN THE SCOPE OF HIS EMPLOYMENT AT THE TIME OF THE ACCIDENT, THERE WAS A QUESTION OF FACT WHETHER THE EMPLOYEE WAS USING THE TRUCK WITH THE COMPANY’S PERMISSION, RENDERING THE COMPANY LIABLE PURSUANT TO VEHICLE AND TRAFFIC LAW 388 (FOURTH DEPT))/EMPLOYMENT LAW (TRAFFIC ACCIDENT, RESPONDEAT SUPERIOR, ALTHOUGH THE EMPLOYEE OF THE OWNER OF THE TRUCK WAS NOT ACTING WITHIN THE SCOPE OF HIS EMPLOYMENT AT THE TIME OF THE ACCIDENT, THERE WAS A QUESTION OF FACT WHETHER THE EMPLOYEE WAS USING THE TRUCK WITH THE COMPANY’S PERMISSION, RENDERING THE COMPANY LIABLE PURSUANT TO VEHICLE AND TRAFFIC LAW 388 (FOURTH DEPT))/VEHICLE AND TRAFFIC LAW (TRAFFIC ACCIDENTS, PERMISSIVE USE, ALTHOUGH THE EMPLOYEE OF THE OWNER OF THE TRUCK WAS NOT ACTING WITHIN THE SCOPE OF HIS EMPLOYMENT AT THE TIME OF THE ACCIDENT, THERE WAS A QUESTION OF FACT WHETHER THE EMPLOYEE WAS USING THE TRUCK WITH THE COMPANY’S PERMISSION, RENDERING THE COMPANY LIABLE PURSUANT TO VEHICLE AND TRAFFIC LAW 388 (FOURTH DEPT))/RESPONDEAT SUPERIOR (TRAFFIC ACCIDENTS, ALTHOUGH THE EMPLOYEE OF THE OWNER OF THE TRUCK WAS NOT ACTING WITHIN THE SCOPE OF HIS EMPLOYMENT AT THE TIME OF THE ACCIDENT, THERE WAS A QUESTION OF FACT WHETHER THE EMPLOYEE WAS USING THE TRUCK WITH THE COMPANY’S PERMISSION, RENDERING THE COMPANY LIABLE PURSUANT TO VEHICLE AND TRAFFIC LAW 388 (FOURTH DEPT))/TRAFFIC ACCIDENTS (RESPONDEAT SUPERIOR, VEHICLE AND TRAFFIC LAW, ALTHOUGH THE EMPLOYEE OF THE OWNER OF THE TRUCK WAS NOT ACTING WITHIN THE SCOPE OF HIS EMPLOYMENT AT THE TIME OF THE ACCIDENT, THERE WAS A QUESTION OF FACT WHETHER THE EMPLOYEE WAS USING THE TRUCK WITH THE COMPANY’S PERMISSION, RENDERING THE COMPANY LIABLE PURSUANT TO VEHICLE AND TRAFFIC LAW 388 (FOURTH DEPT))/PERMISSIVE USE (TRAFFIC ACCIDENTS, VEHICLE AND TRAFFIC LAW, ALTHOUGH THE EMPLOYEE OF THE OWNER OF THE TRUCK WAS NOT ACTING WITHIN THE SCOPE OF HIS EMPLOYMENT AT THE TIME OF THE ACCIDENT, THERE WAS A QUESTION OF FACT WHETHER THE EMPLOYEE WAS USING THE TRUCK WITH THE COMPANY’S PERMISSION, RENDERING THE COMPANY LIABLE PURSUANT TO VEHICLE AND TRAFFIC LAW 388 (FOURTH DEPT))