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QUESTIONS OF FACT WHETHER THE EMPLOYEE WAS DRIVING THE EMPLOYER’S TRUCK WITH THE EMPLOYER’S PERMISSION AND WHETHER THE EMPLOYEE WAS ACTING WITHIN THE SCOPE OF HIS EMPLOYMENT WHEN THE TRAFFIC ACCIDENT OCCURRED (THIRD DEPT).

The Third Department determined plaintiff’s vicarious liability causes of action against the employer of the driver of a company truck which struck plaintiff’s car head-on properly survived summary judgment. The driver, Price, was intoxicated and was convicted of vehicular assault. The employer argued that, because of the company policy prohibiting employees from using drugs and alcohol, Price did not have permission to operate the truck within the meaning of Vehicle and Traffic Law 388. The employer further argued Price was not acting within the scope of his employment when the accident occurred. The court found there were questions of fact on both issues:

… [T]he requirement to drive sober relates more closely to the manner of operation, or how to drive, rather than a restriction on who may operate the vehicle and when and where they may do so … . As defendants did not establish, as a matter of law, that Price was driving without permission at the time of the accident, they were not entitled to summary judgment on the Vehicle and Traffic Law § 388 claim … . …

Price testified that [his employer] gave him a vehicle to use for business purposes, including traveling from home to work, and at the time of the accident he was driving to a job site to begin work for the day. [The employer] arguably derived a benefit from Price’s ability to take the vehicle home because the truck contained a tool box for work tools, he used the truck to transport supplies to job sites from home improvement stores, the truck advertised the business by displaying the company name and logo, and he worked at construction job sites rather than a main office, so permitting him to take the vehicle home saved him from having to use work time to pick the company truck up and drop it off at a central location each day … . Based on this evidence, defendants failed to establish their entitlement to summary judgment, as there was a factual question regarding whether Price was acting within the scope of his employment at the time of the accident … . Williams v J. Luke Constr. Co., LLC, 2019 NY Slip Op 03431, Third Dept 5-2-19

 

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