Horne v . DePetrillo, et a l . 04-CV-076-SM 04/18/05 UNITED STATES DISTRICT COURT
DISTRICT OF NEW HAMPSHIRE
Betty F. Horne, Plaintiff
v. Civil N o . 04-cv-76-SM Opinion N o . 2005 DNH 064 Alfred J. DePetrillo; Odessa Corp. d/b/a Fastop Convenience Store; Kleen Laundry & Dry Cleaning Services, Inc.; and Michael Roberts, Defendants
O R D E R
Betty F. Horne filed this five-count complaint1 against
Alfred J. DePetrillo (“DePetrillo”), Odessa Corp. d/b/a Fastop
Convenience Store (“Fastop”), Kleen Laundry & Dry Cleaning
Services, Inc. (“Kleen Laundry” or “the company”), and Michael
Roberts, seeking damages for injuries suffered after she was
struck by an automobile driven by DePetrillo. Count I asserts
that DePetrillo was negligent. Count II asserts that Kleen
Laundry is liable for DePetrillo’s negligence because he was
1 The claims appear to be misnumbered in plaintiff’s second amended complaint. Two counts are marked “Count IV.” The second Count IV will be referred to as Count V . acting within the scope of his employment at the time of the
accident. Count I I I asserts that Kleen Laundry negligently
instructed DePetrillo to rush to work. Count I V asserts that
Fastop was negligent when it failed to remove snow and ice from
the parking lot DePetrillo was exiting at the time of the
accident, and Count V asserts a similar claim against Michael
Roberts, who was allegedly responsible for removing snow from
Fastop’s parking lot.
Defendant Kleen Laundry moves for summary judgment on Counts
I I and I I I . Plaintiff objects. For the reasons set forth below,
defendant’s motion for summary judgment is granted.
STANDARD OF REVIEW
Summary judgment is appropriate when the record demonstrates
“that there is no genuine issue as to any material fact and that
the moving party is entitled to a judgment as a matter of law.”
F E D . R . C I V . P . 56(C). In considering a motion for summary
judgment, the court must view the record “in the light most
hospitable” to the nonmoving party. Euromodas, Inc. v . Zanella,
Ltd., 368 F.3d 1 1 , 17 (1st Cir. 2004) (citing Houlton Citizens’
2 Coalition v . Town of Houlton, 175 F.3d 1 7 8 , 184 (1st Cir. 1999);
Garside v . Osco Drug, Inc., 895 F.2d 4 6 , 48 (1st Cir. 1990)). An
issue is “‘genuine’ if the parties’ positions on the issue are
supported by conflicting evidence.” Int’l Ass’n of Machinists &
Aerospace Workers v . Winship Green Nursing Ctr., 103 F.3d 196,
200 (1st Cir. 1996) (citing Anderson v . Liberty Lobby, Inc., 477
U.S. 2 4 2 , 250 (1986)). An issue is “‘material’ if it potentially
affects the outcome of the suit.” Id. at 199-200.
In support of its summary judgment motion, the moving party
must “identify[] those portions of [the record] which . . .
demonstrate the absence of a genuine issue of a material fact.”
Celotex Corp. v . Catrett, 477 U.S. 3 1 7 , 323 (1986). If the
moving party successfully demonstrates the lack of a genuine
issue of material fact, “the burden shifts to the nonmoving party
. . . to demonstrate that a trier of fact reasonably could find
in [its] favor.” DeNovellis v . Shalala, 124 F.3d 2 9 8 , 306 (1st
Cir. 1997) (citing Celotex, 477 U.S. at 322-25). Once the burden
shifts, the nonmoving party “may not rest upon mere allegations
or denials of his [or her] pleading, but must set forth specific
3 facts showing that there is a genuine issue for trial.”
Anderson, 477 U.S. at 256.
BACKGROUND
The facts, set forth in the light most favorable to Horne,
are as follows. On the morning of January 3 0 , 2003, Horne was
walking “at or near the intersection of Hanover Street and Route
20 in Lebanon, New Hampshire.” (2d Am. Compl. (hereinafter
“Compl.”) ¶ 8.) DePetrillo, who had been at the Fastop
convenience store, “made a right hand turn out of the parking lot
onto Hanover Street” where his vehicle “struck and ran over”
Horne. (Compl. ¶ 15.) As a result of the accident, Horne
suffered various injuries that resulted in an “extended period of
hospitalization” and “a nursing home admission.” (Compl. ¶ 20.)
Horne has incurred “medical expenses in excess of $381,000 . . .
permanent loss of function, disability, pain and suffering, as
well as lost wages and lost future earning capacity.” (Compl.
¶ 20.)
At the time of the accident, DePetrillo was employed by
Kleen Laundry, where he worked as a part-time spotter. (Def.’s
4 Mot. Summ J., Ex. A (Gosselin Aff.) ¶ 3.) DePetrillo had worked
for Kleen Laundry for a number of years, starting as a full-time
employee. (Def.’s Mot. Summ. J., Ex. C . (DePetrillo Dep.) at
29.) As Kleen Laundry’s business “dwindled,” DePetrillo’s hours
were gradually reduced, and he became a part-time employee.
(DePetrillo Dep. at 30.) At the time of the accident, DePetrillo
was regularly working five days a week, for four hours a day,
beginning each workday at noon and ending at 4:00 p.m. (Pl.’s
Mot. Summ. J., Tab 2 (Gosselin Dep.) at 25-6.) On the morning of
the accident, Kleen Laundry called DePetrillo and asked him to
come to work early because “the lady who normally did [Kleen
Laundry’s] bagging was busy with other tasks.” (Def.’s Mot. Summ
J., Ex. B (Murrey Aff.) ¶ 4.) Although DePetrillo says he does
not now recall the specific language used when he was asked to
report to work, shortly after the accident he told the police
that he was told to arrive at work “pronto.” (DePetrillo Dep. at
39-43.)
DePetrillo, like all of Kleen Laundry’s employees, is “paid
only for the time that [he] actually spend[s] working.”
(Gosselin Aff. ¶ 6.) The company “does not now, and has not ever
5 paid its employees to drive to and from work” (Gosselin Aff.
¶ 5 ) , and has never “exercise[d] any direction or control over
the operation of [DePetrillo’s] personal vehicle” (Gosselin Aff.
¶ 17). DePetrillo was driving “his personal vehicle on the day
of the accident [which] was not in any way within the scope of
his part-time employment as a spotter . . . .” (Murrey. Aff
¶ 19.) While on his way to work, DePetrillo stopped at Fastop to
pick up a newspaper. (DePetrillo Dep. at 13.) Fastop “is not
located anywhere between [ ] DePetrillo’s home . . . and [Kleen
Laundry]” and nobody from Kleen Laundry ever requested that
DePetrillo stop there. (Gosselin Aff. ¶ 12-14; Murrey Aff. ¶ 13-
15.)
DISCUSSION
Kleen Laundry moves for summary judgment on both negligence
counts, arguing that, as to Count I I , DePetrillo was acting
outside the scope of his employment when the accident occurred,
and accordingly, it cannot be held liable under the theory of
respondeat superior. Regarding Count I I I , defendant asserts that
it had no direct control over the vehicle that caused the
accident and therefore cannot be held liable.
6 I. Vicarious Liability (Count II)
“Under respondeat superior, ‘an employer may be held
vicariously responsible for the tortious acts of its employee if
the employee was acting within the scope of his or her employment
when his or her tortious act injured the plaintiff.’” Porter v .
City of Manchester, 151 N.H. 3 0 , 39-40 (2004) (quoting Pierson v .
Hubbard, 147 N.H. 7 6 0 , 766 (2002)). Moreover,
[a]n employee’s conduct falls within the scope of his or her employment i f : (a) it is of the kind he or she is employed to perform; (b) it occurs substantially within the authorized time and space limits; and (c) it is actuated, at least in part, by a purpose to serve the master.
Pierson, 147 N . H . at 766 (citing RESTATEMENT (SECOND) OF AGENCY § 228
(1958)).
Here, plaintiff contends that because DePetrillo was acting
within the scope of his employment when traveling to work on the
morning of the accident, Kleen Laundry is liable for her
injuries.
7 The first prong of the Pierson scope-of-employment test asks
whether DePetrillo’s conduct on the morning of the accident was
“of the kind he [ ] was employed to perform.” 147 N.H. at 766.
Here, DePetrillo was employed as a part-time spotter and
occasionally handled other related duties on an as-needed basis.
There is no evidence that any of those duties required DePetrillo
to operate a motor vehicle and no evidence suggests he was
operating his personal vehicle to further some goal, or achieve
some end, of Kleen Laundry.
DePetrillo’s work for Kleen Laundry was different than that
of the employee in Murray v . Travelers Insurance Co., 601 N.W.2d
661 (Wis. C t . App. 1999), who was hired “to travel to [ ]
patients’ homes and administer physical therapy to them.” Id. at
664. In finding that the Murray employee’s travel to and from
patients’ homes fell within the scope of her employment, the
court noted that the terms of her employment “required her to
travel to various sites to carry out her duties as a physical
therapist” and that “her workplace differed significantly from
that of an employee who leaves each day for his or her fixed
place of employment.” Id. at 665.
8 DePetrillo’s case also differs from Carter v . Reynolds, 815
A.2d 460 (N.J. 2003), where the employee was “required to work in
[her] firm’s [ ] office, and also visit clients.” Id. at 462.
Although the employee was “required to use her own vehicle for
travel” id., the court found that the “employer benefits by not
having to have available an office car and yet possessing a means
by which off-site visits can be performed by its employees.” Id.
at 468. Thus, while the employee in Carter was operating her own
vehicle, because she was doing so in an effort to fulfill an
obligation of her employment, her travel to and from clients’ was
considered to be within the scope of her employment.
Here, there is no evidence to suggest that DePetrillo’s
employment obligations to Kleen Laundry required that he travel
to clients or customers as the employees did in Murray and
Carter. Plaintiff has therefore failed to establish that
DePetrillo’s conduct before the accident was of the kind he was
employed to perform.
The second prong of the Pierson test similarly supports the
conclusion that DePetrillo was not acting within the scope of
9 employment when the accident occurred. This prong considers
whether the conduct “occurs substantially within the authorized
time and space limits” of the employment. 147 N.H. at 766.
Defendant has produced testimony that Kleen Laundry only
compensates employees for the “time they spend working” (Gosselin
Aff. ¶ 1 7 ) , which supported by the fact that the company requires
its employees to “‘punch in’ and ‘punch out,’” thereby creating a
precise tabulation of the number of hours each employee worked
(Gosselin Aff. ¶ 6 ) . Moreover, Kleen Laundry does not compensate
its employees for the time they spend commuting to and from work.
(Gosselin Aff. ¶ 5.)
Considering these undisputed facts, it is clear that
DePetrillo’s drive to work on the morning of the accident did not
take place during the “authorized time and space limits” of his
employment. As discussed in relation to the first prong, all of
DePetrillo’s job duties were performed on Kleen Laundry’s site.
Further, because DePetrillo was paid on an hourly basis and was
not being paid for the time he was driving to work on the morning
of the accident, he was clearly not within the authorized time
limits of his employment.
10 The third prong of the Pierson test considers the nature of
the employee’s conduct to determine whether “it is actuated, at
least in part, by a purpose to serve the master.” 147 N . H . at
766. Plaintiff argues that because DePetrillo was an on-call
employee, his commute to work on the morning of the accident was
intended to serve defendant because he only traveled to work only
after he was called to come i n . Defendant maintains that
DePetrillo was on a personal errand before his employment duties
began. Defendant is correct.
While it is true that DePetrillo’s conduct in driving to
work was “actuated, at least in part, by a purpose to serve the
master,” id., the specific conduct that gave rise to the
accident, that i s , DePetrillo’s stop at a convenience store,
served no purpose of his employer. Although the RESTATEMENT
(SECOND) OF AGENCY, upon which the Pierson court relied, notes that
“[g]etting ready to work . . . may be within the scope of
employment” RESTATEMENT (SECOND) OF AGENCY § 229, Comment c, the New
Hampshire Supreme Court has held that “the immediately
predominating purpose of the [employee’s action] must have had
some relation to his master’s service beyond a mere intent to
11 resume it later.” Sauriolle v . O’Gorman, 86 N.H. 39 (1932)
(citing Stegman v . Sturtevant & Haley Beef & Supply Co., 137 N.E.
363, 364 (Mass. 1922)).
Applying that standard here, DePetrillo’s conduct cannot be
said to have served any purpose of his employer. Although
DePetrillo was on his way to work when the accident occurred, the
mere fact he had left his residence with the intention of
eventually going to work is insufficient to bring the trip within
the scope of his employment. Put differently, “the immediately
predominating purpose” of DePetrillo’s stop at the convenience
store had no “relation to his [employer’s] service beyond a mere
intent” to go to work later. Accordingly, DePetrillo’s brief
stop at the convenience store served no purpose of Kleen Laundry.
Although New Hampshire has yet to do s o , some jurisdictions
have adopted the so-called “special mission” exception to the
general rule that travel to and from work falls outside the scope
of employment. See, e.g., Chevron, U.S.A., Inc. v . Lee, 847
S.W.2d 3 5 4 , 356 (Tex. App. 1993). As the Texas Court of Appeals
explained:
12 a “special mission” exists when an employee is not simply traveling from his home to his normal place of employment, or returning from his normal place of employment to his home for his own purpose, but is traveling from his home or returning to it on a special errand either as part of his regular duties or at the specific order or request of his employer.
Id. In Chevron, an employee’s actions were found to be within
the scope of employment when he was “ordered to attend a
mandatory seminar . . . on what otherwise would have been his day
off from normal employment.” Id. at 355. Here, even if New
Hampshire were to adopt the “special mission” exception,
DePetrillo’s drive to work on the morning of the accident would
not fall within i t . Unlike the employee in Chevron, DePetrillo
was “simply traveling from his home to his normal place of
employment” and was not “on a special errand” as plaintiff
suggests. Id. at 356.
Finally, in her objection to summary judgment, plaintiff
analogizes to workers’ compensation law, arguing that the
workers’ compensation “special duty exception” brings
DePetrillo’s drive to work within the scope of his employment.
Although some states have had occasion to apply workers’
13 compensation concepts to tort claims, see, e.g., Carter, 815 A.2d
at 466, New Hampshire has not yet done s o . Plaintiff identifies
no case in which the New Hampshire Supreme Court has interpreted
agency law by reference to workers’ compensation law, and no case
in which that court has applied the “special duty exception” to
agency law. This court declines to do so here.
But even if the “special duty exception” were applied in
this case, plaintiff’s claim would still fail. Plaintiff
emphasizes the fact that DePetrillo was available on an “on-call”
basis and, analogizing to workers’ compensation law, argues that
under the “special duty exception” DePetrillo’s drive to and from
work should be considered within the scope of his employment. To
support this argument, plaintiff cites Heinz v . Concord Union
Sch. Dist., 117 N.H. 214 (1977), where the court found a school
teacher to be acting within the scope of employment when he was
on his way home, to change clothes, in order to chaperone a
school dance. Id. at 216-17. In reaching its conclusion, the
court noted that the teacher “was not obligated to chaperone
school dances” id. at 216, and “that chaperoning was an irregular
event, that duties occupying evening weekend hours were not
14 routine, and that evening travel often presents special hazards.”
Id. at 219. But here, unlike the teacher in Heinz, DePetrillo’s
conduct was regular and routine, and DePetrillo did have an
obligation to work when called upon to do s o .
Simply put, DePetrillo’s travel to work on the morning of
the accident was consistent with the regular terms and conditions
of his employment; it was not a “special duty.”
Plaintiff also argues, again analogizing to workers’
compensation law, that because DePetrillo was an “on-call”
employee who only went to work when he was specifically asked t o ,
his travel to and from work was within the authorized time and
space limits of his employment. But courts have routinely
recognized “that the mere fact of being on call does not place
employees within the scope of their employment.” Clickner v .
City of Lowell, 663 N.E.2d 8 5 2 , 855 (1996) (footnote omitted).
One court has held, however, that “[a]n employee traveling to
work after being summoned by his or her employer could be acting
within the scope of employment if additional facts support such a
15 finding.” Id. (citing Evington v . Forbes, 742 F.2d 8 3 4 , 835-36
(4th Cir. 1984) (applying North Carolina law)).
In Evington, the employee was on “‘call back’ status” which
“entailed wearing a beeper and staying within the beeper’s
range.” 742 F.2d at 835. “When the beeper sounded, he was
required to return to the hospital,” id., an arrangement that is
arguably similar to DePetrillo’s relationship with Kleen Laundry.
But unlike the present case, the employee in Evington was
compensated for the time he was on call-back status. Id. at 835-
36. This served as an “additional fact” which the court found to
support the notion that the employee was acting within the scope
of his employment. Id. Here, beyond the mere fact that he was
arguably on call, there is nothing more to suggest that
DePetrillo’s conduct on the morning of the accident fell within
the authorized time and space limits of his employment.
The undisputed factual record disclosed that DePetrillo was
not acting within the scope of his employment on the morning of
the accident. Accordingly, Kleen Laundry is entitled to judgment
as a matter of law on Count I I .
16 II. Direct Negligence (Count III)
“A plaintiff claiming negligence must prove: (1) that the
defendant owed the plaintiff a duty; (2) that the duty was
breached; (3) that the plaintiff suffered an injury; and (4) that
the defendant’s breach was the proximate cause of the injury.”
Vachon v . New England Towing, 148 N.H. 429 (2002) (citing Ronayne
v . New Hampshire, 137 N.H. 2 8 1 , 284 (1993)). Further,
“[d]etermining the standard of care in a particular case, i.e.,
the duty placed upon a defendant under given circumstances, is a
question of law.” Allen v . Dover Co-Recreational Softball
League, 148 N.H. 4 0 7 , 417 (2002) (citing Young v . Clogston, 127
N.H. 3 4 0 , 342 (1985)).
Plaintiff asserts that Kleen Laundry’s breach of two
different duties caused DePetrillo’s accident. Specifically,
plaintiff claims Kleen Laundry had duties (1) to close its
facilities during inclement weather conditions; and (2) to not
tell its employees to travel to work “pronto.” Kleen Laundry
asserts that no such duties exist because it never had any
control over DePetrillo’s vehicle. Defendant is correct.
17 Generally, “[a]ll persons have a duty to exercise reasonable
care not to subject others to an unreasonable risk of harm.”
Remsburg v . Docusearch, Inc., 149 N.H. 1 4 8 , 153 (2003) (citing
Walls v . Oxford Mgmt. Co., 137 N.H. 653, 656 (1993)). Moreover,
“[w]hether a defendant’s conduct creates a risk of harm to others
sufficiently foreseeable to charge the defendant with a duty to
avoid such conduct is a question of law.” Id. (citing Iannelli
v . Burger King Corp., 145 N.H. 1 9 0 , 193 (2000)). Typically,
“[p]arties owe a duty to those third parties foreseeably
endangered by their conduct with respect to those risks whose
likelihood and magnitude make the conduct unreasonably dangerous.
Id. (citing Hungerford v . Jones, 143 N.H. 2 0 8 , 211 (1998)).
However, “under all ordinary and normal circumstances, in the
absence of any reason to expect the contrary, the actor may
reasonably proceed upon the assumption that others will obey the
law.” Id. (quoting Walls, 137 N.H. at 6 5 6 ) .
While the foregoing principle is typically articulated in
the context of claims that a defendant is somehow liable for a
criminal attack on a plaintiff by a third party, see, e.g.,
Dupont v . Aavid Thermal Techs., Inc., 147 N.H. 706 (2002)
18 (employer found not liable for one employee shooting another), it
is equally applicable here. When an employer requires its
employees to travel to work during periods of inclement weather,
the employer is entitled to assume that its employees will act as
reasonably prudent people would act under the prevailing
circumstances, unless there is some reason to believe otherwise.
Similarly, even when an employer expresses a desire for its
employees to travel to work quickly, it is entitled to assume
that its employees will conduct themselves in a manner consistent
with an ordinary standard of reasonable care, again, unless there
is some reason to believe otherwise.
Plaintiff cites Palmer v . Keene Forestry Ass’n, 80 N.H. 68
(1922), to support her proposition that Kleen Laundry acted
negligently when it requested DePetrillo to get to work quickly.
In Palmer, an employer was found liable for a grass fire that
started when one of its employees “carelessly [dropped a ] lighted
match[] in the dry grass.” Id. at 6 9 . The court explained that:
. . . the defendant’s liability depends on a finding that it had knowledge of the propensity of its servants to smoke, which habit they were likely to indulge in while at work in the plaintiff’s field, and thus cause serious damage to the plaintiff’s property. The
19 question i s , not whether the men in dropping lighted matches into the grass were acting within the scope of their authority, but whether the doing of the act was reasonably to be apprehended by the defendant.
Id. at 7 0 .
Here, plaintiff has produced no facts tending to show that
Kleen Laundry knew, or had reason to know, that DePetrillo had
any propensity for negligent driving. Kleen Laundry could
reasonably expect DePetrillo to act lawfully and appropriately
under the circumstances. Plaintiff has offered no evidence to
suggest that Kleen Laundry knew or should have known that
DePetrillo would drive negligently on the morning of the
accident. As a matter of law, defendant breached no duty owed to
plaintiff. Defendant is entitled to judgment as a matter of law
on Count III.
CONCLUSION
Defendant’s motion for summary judgment (document n o . 28) is
granted as to Counts II and III. The clerk of the court shall
enter judgment in accordance with this order.
20 SO ORDERED.
Steven J. McAuliffe Chief Judge
April 1 8 , 2005
cc: Robert C . Dewhirst, Esq. Gregory M . Eaton, Esq. Edward R. Gargiulo, Esq. Paul B . Kleinman, Esq. Robert T . Mittelholzer, Esq.