KIMARA HANKS v. ANDREW D. McFARLANE

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1302-08T31302-08T3

KIMARA HANKS,

Plaintiff-Appellant,

v.

ANDREW D. McFARLANE, MARGARET

M. DAVEY, DWAYNE JOYNER, and

LIBERTY MUTUAL INSURANCE COMPANY,

Defendants,

and

G&G ELECTRICAL SUPPLY, INC.,

Defendant-Respondent.

______________________________

 

Argued June 2, 2009 - Decided

Before Judges Parker, Yannotti and LeWinn.

On appeal from the Superior Court of New Jersey, Law Division, Essex County, Docket No. L-6758-06.

Anthony Mazza argued the cause for appellant (Bendit Weinstock, P.A., attorney; Mr. Mazza, on the brief).

Erica B. Sherman argued the cause for respondent (Law Offices of William E. Staehle, attorney; Ms. Sherman, on the brief).

PER CURIAM

Plaintiff appeals from the February 1, 2008 order of the trial court granting summary judgment to defendant G&G Electrical Supply, Inc. (G&G) dismissing the complaint with prejudice. For the reasons that follow, we affirm.

On October 31, 2004, plaintiff was a passenger in a car operated by defendant Andrew McFarlane, and was injured when McFarlane's car was struck by a vehicle owned by G&G. At the time of the accident, the G&G vehicle was being driven by Carl Long, a cousin of Tad B. Chin who was an employee of G&G. Plaintiff filed suit against G&G and other defendants on August 15, 2006.

On November 20, 2007, G&G filed a motion for summary judgment. In support of that motion, G&G submitted its answers to interrogatories, in which it stated that on the night of the accident, "Chin misappropriated [its] vehicle, which he was to use only for business purposes within the scope of his employment with G&G . . . and in the course of his unauthorized use . . . permitted . . . Long to operate it." G&G also submitted the deposition of Joseph Fusco, G&G's president, in which Fusco acknowledged that Chin made both daytime and nighttime deliveries, and was "allowed to take the vehicle home" when he had late night deliveries, but was to return it "in the morning." Fusco testified that G&G had a "written policy" prohibiting employees' personal use of company vehicles.

Fusco testified further in deposition that Chin had told Fusco that he was "at a social event," and that "[h]e had had too much to drink so he let his cousin drive the vehicle home." G&G did not submit a certification or any other evidence from Chin regarding his involvement in the accident.

On December 21, 2007, the trial judge denied G&G's summary judgment motion without prejudice, citing the lack of corroborating testimony from Chin regarding his use of the van. The judge stated that without evidence from Chin directly, he had a "double hearsay problem" with Fusco's testimony.

On January 9, 2008, G&G filed a motion for reconsideration. In support of this motion, G&G included a certification from Chin, stating that throughout his employment as a driver for G&G, he "never made deliveries on the weekends," and that he "had been advised by [his] supervisor . . . that [he] was not supposed to use the G&G van on weekends."

Chin certified further that he had taken the G&G van to his home after work on Friday, October 29, 2004, and had then used the van on Saturday, October 30, 2004, to pick up Long so that they could go bowling. Late on the night of the 30th, Long drove the van back from the bowling alley because Chin was intoxicated. Chin acknowledged that he never received permission from his supervisor at G&G to use the van that weekend.

G&G also included a certification from Fusco confirming Chin's statements and further stating that Chin had not used the van for any G&G business during the weekend of October 30-31, 2004.

In opposition to G&G's motion for reconsideration, plaintiff contended that disputed issues remained as G&G had claimed it had a written policy prohibiting the personal use of company vehicles, but had failed to produce any such document. Plaintiff also argued that Chin's credibility was questionable because the police report of the accident identified an individual named Dwayne Joyner as the driver of the van.

The trial judge entered an order on February 1, 2008, granting summary judgment to G&G dismissing the complaint with prejudice. In that order, the judge stated his reasoning as follows: "Chin was not engaged in the business of G&G at the time of the accident."

On appeal, plaintiff argues that the trial judge erred in granting G&G's motion for summary judgment, and that a genuine issue of material fact exists regarding whether or not G&G was responsible for the accident. Having reviewed these contentions in light of the record and the controlling law, we are satisfied that they lack merit.

We note at the outset that when reviewing an order granting summary judgment, we apply the same standards as the trial court. Liberty Surplus Ins. Corp. v. Nowell Amoroso, P.A., 189 N.J. 436, 445-46 (2007); Stoffels v. Harmony Hill Farm, 389 N.J. Super 207, 209 (App. Div. 2006). Summary judgment may be granted when there are no genuine issues of material fact and the moving party is entitled to judgment as a matter of law. R. 4:46-2(c); Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995).

Plaintiff claims that a material factual dispute exists because Chin apparently gave the police the fictitious name of Dwayne Joyner as the operator of the van at the time of the accident. Plaintiff contends that, "[t]herefore, the credibility of Chin is seriously in question." Plaintiff further contends that a dispute exists by virtue of G&G's failure to produce a written policy prohibiting its employees from operating company vehicles for personal use. We are satisfied that neither of these issues rises to the level of a material factual dispute sufficient to defeat summary judgment to G&G.

Plaintiff's theory of liability against G&G was that G&G was vicariously liable for her injuries resulting from the actions of G&G's agent under the doctrine of respondeat superior. Pursuant to that doctrine, "an employer is vicariously liable for the torts of an employee only if the employee was acting within the scope of his or her employment at the time the tort was committed." Carter v. Reynolds, 345 N.J. Super. 67, 71 (App. Div. 2001), aff'd, 175 N.J. 402 (2003). "Conduct is generally considered to be within the scope of employment if, `it is of the kind [that the servant] is employed to perform; it occurs substantially within the authorized time and space limits; [and] it is actuated, at least in part, by a purpose to serve the master.'" Di Cosala v. Kay, 91 N.J. 159, 169 (1982) (quoting Restatement (Second) of Agency 228 (1957)).

Under that standard, no factual dispute exists regarding the issue of G&G's liability for the accident. No matter who was driving the G&G van on the night in question, whether it was Dwayne Joyner, Carl Long or even Chin himself, the use of the van was clearly unauthorized at that time and for that purpose. Chin was not engaged in serving G&G's business interest, nor was he carrying out any task within the scope of his employment responsibilities as a driver for G&G. Notwithstanding G&G's failure to produce a written policy prohibiting an employee's unauthorized use of company property, Chin was clearly not acting within the scope of his employment at the time of the accident in which plaintiff was injured. Carter, supra, 345 N.J. Super. at 71.

Affirmed.

 

This defendant was improperly identified in the pleadings as "G&G Electric."

The claims against all other defendants were resolved either through settlement or stipulation of dismissal.

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A-1302-08T3

August 12, 2009