Makoske v. Lombardy

Appellate Division of the Supreme Court of New York

Makoske v. Lombardy

47 A.D.2d 284, 366 N.Y.S.2d 475, 1975 N.Y. App. Div. LEXIS 9230

Appellate Division of the Supreme Court of the State of New York·Decided April 17, 1975·Published·Cited by 25 cases

Opinions

Kane, J.

Plaintiff Mary Makoske

* seeks to recover damages for personal injuries sustained while she was riding as a passenger in an automobile owned and operated by the defendant Ralph J. Lombardy when it collided with a vehicle owned and operated by the defendant and third-party plaintiff John W. Trolenberg who, in turn, seeks apportionment of any damages recovered against him from the third-party defendant Montgomery Ward, the employer of the other parties, as well as from the defendant Lombardy by way of a cross claim.

Following extensive examinations before trial, defendant Lombardy moved for summary judgment upon the ground that, since he and the plaintiff were coemployees acting in the course of their employment at the time of the accident, plaintiffs exclusive remedy was under the provisions of the Workmen’s Compensation Law. Third-party defendant Montgomery Ward cross-moved for summary judgment dismissing the third-party complaint of Trolenberg upon the ground that its employees in the Lombardy vehicle were not acting within the scope of their employment at the time of the collision and, consequently, that it could not be found liable under the doctrine of respondeat superior. Special Term denied both motions, but only Montgomery Ward appeals from the order thereupon entered. Therefore, the sole issue on this appeal is whether it can be said, as a matter of law, that defendant Lombardy was not engaged in activity within the scope of his employment with Montgomery Ward at the time of the accident. A recitation of the salient facts is obviously required.

The defendant Lombardy’s vehicle contained four other passengers, in addition to the plaintiff, at the time of the [287]*287accident. All were employees of appellant Montgomery Ward. They were in Saratoga attending a course of instruction on the duties of a catalog store manager which was conducted by the plaintiff at a Saratoga training school designated by the company, and all trainees were required to stay at a local motel. Lodging and meal expenses were paid by appellant. Certain store managers, including defendant Lombardy, were requested by the employer to drive their personal automobiles to the training session and pick up other employees along the way. Mileage and tolls were also paid by the company. The drivers were not restricted in the use of their automobiles and, in fact, were the sole source of transportation in and around Saratoga for their various colleagues. Admittedly, this was a very common company practice.

After dinner on the evening of July 22, 1970, the last full day of the training session, a group of trainees, together with plaintiff, was discussing the day’s program when one of the individuals present mentioned she regretted coming to Sara-toga without seeing the raceway. Some of this group, including plaintiff, decided to take a few minutes to drive out to look at the track and then return to the motel. The company did not prohibit its employees from sightseeing, nor were restrictions placed upon their evening activities. Since defendant Lombardy was among those interested, it was his automobile that was selected for use and thus it came to the scene of the accident enroute to the track.

The critical question is whether or not Lombardy’s trip to visit the raceway was within the scope of his employment so as to bind his employer, Montgomery Ward, for any subsequent negligent act on his part. Whether an employee’s acts can be considered in the scope of employment depends upon the particular facts of each case and a difference in degree will produce different results. Ultimately, "the answer depends upon a consideration of what the servant was doing, and why, when, where and how he was doing it.” (Riley v Standard Oil of N. Y., 231 NY 301, 304.) Added to this consideration of respondeat superior is the further requirement that the employer "is, or could be exercising some control, directly or indirectly, over the employee’s activities” (Lundberg v State of New York, 25 NY2d 467, 470). In the instant case, it seems clear that Montgomery Ward had limited the mobility of its employees by marooning them in a motel at Saratoga, a resort community, for four days and [288]*288nights without a readily available means of transportation other than that which could be provided by coemployees. It would certainly seem reasonable to expect that these employees would go out to dinner in the immediate area and visit some local landmarks in the time allotted for such activities. In any event, restrictions upon such activities could have been imposed by Montgomery Ward, at least to the extent of the minimum control requirement contemplated by Lundberg. Whether the activities of these employees were in furtherance of their employer’s interest, or merely a deviation from the scope of employment for purely personal reasons, requires a close examination of the facts and controlling case law.

The furtherance of interest question often turns on a decision of whether the employee’s activity is incidental to the employer’s business or is wholly separate and apart from it (cf. Bluestein v Scoparino, 277 App Div 534; Wood v Saunders, 228 App Div 69). If there is a departure from specific or designated activity, consideration must then be given to the foreseeability of the occurrence arising from the particular deviation to determine whether it could be fairly considered a related risk (Bushey & Sons v United States, 398 F2d 167). It seems clear that employer responsibility in this area is broad, particularly where employee activity may be regarded as incidental to the furtherance of the employer’s interest for, so long as the other requirements are present, "Liability is the rule, immunity the exception” (Bing v Thunig, 2 NY2d 656, 666; Burns v City of New York, 6 AD2d 30). Accordingly, on the present posture of the record, Special Term properly denied the motion to dismiss the third-party complaint.

The order should be affirmed, without costs.

Plaintiff Mary Makoske’s husband also brings a derivative action, but all references herein to "plaintiff” refer only to Mary Makoske.

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Kane, J.

Plaintiff Mary Makoske

* seeks to recover damages for personal injuries sustained while she was riding as a passenger in an automobile owned and operated by the defendant Ralph J. Lombardy when it collided with a vehicle owned and operated by the defendant and third-party plaintiff John W. Trolenberg who, in turn, seeks apportionment of any damages recovered against him from the third-party defendant Montgomery Ward, the employer of the other parties, as well as from the defendant Lombardy by way of a cross claim.

Following extensive examinations before trial, defendant Lombardy moved for summary judgment upon the ground that, since he and the plaintiff were coemployees acting in the course of their employment at the time of the accident, plaintiffs exclusive remedy was under the provisions of the Workmen’s Compensation Law. Third-party defendant Montgomery Ward cross-moved for summary judgment dismissing the third-party complaint of Trolenberg upon the ground that its employees in the Lombardy vehicle were not acting within the scope of their employment at the time of the collision and, consequently, that it could not be found liable under the doctrine of respondeat superior. Special Term denied both motions, but only Montgomery Ward appeals from the order thereupon entered. Therefore, the sole issue on this appeal is whether it can be said, as a matter of law, that defendant Lombardy was not engaged in activity within the scope of his employment with Montgomery Ward at the time of the accident. A recitation of the salient facts is obviously required.

The defendant Lombardy’s vehicle contained four other passengers, in addition to the plaintiff, at the time of the [287]*287accident. All were employees of appellant Montgomery Ward. They were in Saratoga attending a course of instruction on the duties of a catalog store manager which was conducted by the plaintiff at a Saratoga training school designated by the company, and all trainees were required to stay at a local motel. Lodging and meal expenses were paid by appellant. Certain store managers, including defendant Lombardy, were requested by the employer to drive their personal automobiles to the training session and pick up other employees along the way. Mileage and tolls were also paid by the company. The drivers were not restricted in the use of their automobiles and, in fact, were the sole source of transportation in and around Saratoga for their various colleagues. Admittedly, this was a very common company practice.

After dinner on the evening of July 22, 1970, the last full day of the training session, a group of trainees, together with plaintiff, was discussing the day’s program when one of the individuals present mentioned she regretted coming to Sara-toga without seeing the raceway. Some of this group, including plaintiff, decided to take a few minutes to drive out to look at the track and then return to the motel. The company did not prohibit its employees from sightseeing, nor were restrictions placed upon their evening activities. Since defendant Lombardy was among those interested, it was his automobile that was selected for use and thus it came to the scene of the accident enroute to the track.

The critical question is whether or not Lombardy’s trip to visit the raceway was within the scope of his employment so as to bind his employer, Montgomery Ward, for any subsequent negligent act on his part. Whether an employee’s acts can be considered in the scope of employment depends upon the particular facts of each case and a difference in degree will produce different results. Ultimately, "the answer depends upon a consideration of what the servant was doing, and why, when, where and how he was doing it.” (Riley v Standard Oil of N. Y., 231 NY 301, 304.) Added to this consideration of respondeat superior is the further requirement that the employer "is, or could be exercising some control, directly or indirectly, over the employee’s activities” (Lundberg v State of New York, 25 NY2d 467, 470). In the instant case, it seems clear that Montgomery Ward had limited the mobility of its employees by marooning them in a motel at Saratoga, a resort community, for four days and [288]*288nights without a readily available means of transportation other than that which could be provided by coemployees. It would certainly seem reasonable to expect that these employees would go out to dinner in the immediate area and visit some local landmarks in the time allotted for such activities. In any event, restrictions upon such activities could have been imposed by Montgomery Ward, at least to the extent of the minimum control requirement contemplated by Lundberg. Whether the activities of these employees were in furtherance of their employer’s interest, or merely a deviation from the scope of employment for purely personal reasons, requires a close examination of the facts and controlling case law.

The furtherance of interest question often turns on a decision of whether the employee’s activity is incidental to the employer’s business or is wholly separate and apart from it (cf. Bluestein v Scoparino, 277 App Div 534; Wood v Saunders, 228 App Div 69). If there is a departure from specific or designated activity, consideration must then be given to the foreseeability of the occurrence arising from the particular deviation to determine whether it could be fairly considered a related risk (Bushey & Sons v United States, 398 F2d 167). It seems clear that employer responsibility in this area is broad, particularly where employee activity may be regarded as incidental to the furtherance of the employer’s interest for, so long as the other requirements are present, "Liability is the rule, immunity the exception” (Bing v Thunig, 2 NY2d 656, 666; Burns v City of New York, 6 AD2d 30). Accordingly, on the present posture of the record, Special Term properly denied the motion to dismiss the third-party complaint.

The order should be affirmed, without costs.

Plaintiff Mary Makoske’s husband also brings a derivative action, but all references herein to "plaintiff” refer only to Mary Makoske.

Makoske v. Lombardy, 47 A.D.2d 284, 366 N.Y.S.2d 475, 1975 N.Y. App. Div. LEXIS 9230 (N.Y. Ct. App. 1975).

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