CYNTHIA WASHINGTON v. JOHN C. SMITH

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2523-05T32523-05T3

CYNTHIA WASHINGTON, Guardian Ad

Litem for TERRANCE E. CONNERS,

Plaintiff-Appellant,

v.

JOHN C. SMITH and BAIN ENTERPRISES

and McDONALD'S CORPORATION,

Defendants-Respondents.

________________________________________

 

Argued January 31, 2007 - Decided February 28, 2007

Before Judges Winkelstein and Fuentes.

On appeal from Superior Court of New

Jersey, Law Division, Camden County,

Docket No. L-5679-04.

Louis G. Hasner argued the cause for

appellant (Hockfield, Hasner & Associates,

attorneys; Mr. Hasner, on the brief).

Jeffrey A. Oshin argued the cause for

respondent Bain Enterprises (Hardin,

Kundla, McKeon & Poletto, attorneys;

Mr. Oshin, on the brief).

R. Barry Strosnider argued the cause for

respondent McDonald's Corporation

(Law Offices of J. Mark Pecci, II,

attorneys; Mr. Strosnider, on the brief).

PER CURIAM

Terrance E. Conners was seriously injured when his motorcycle was struck by a car driven by defendant John Smith on June 1, 2004. Smith was employed by defendant Bain Enterprises, a franchisee of defendant McDonald's Corporation. Smith was a part-time kitchen employee, working seven hours per day, three days per week. His shift was from 7:00 p.m. until 1:30 a.m. His son, age sixteen, also worked at the same McDonald's restaurant. Because it was a week night, his son's shift ended at 10:00 p.m. Bain Enterprises permitted Smith, on a regular basis, to take a break during his shift to drive his son home. It was on the way back to the restaurant after dropping his son off that the accident occurred.

The sole issue in this appeal is whether Smith was operating his car within the scope of his employment at Bain Enterprises when he struck plaintiff's motorcycle. Acting on Bain Enterprises' motion for summary judgment, Judge Fratto dismissed plaintiff's claims against this defendant. Plaintiff now argues that the question of whether Bain Enterprises should be held liable for Smith's conduct under a theory of respondeat superior should be decided by a jury. Plaintiff thus seeks an order from this court vacating the grant of summary judgment in favor of Bain Enterprises, and a remand for the question of vicarious liability to be decided at trial.

After carefully reviewing the record, and in light of prevailing legal standards, we reject plaintiff's argument and affirm substantially for the reasons expressed by Judge Fratto in his oral opinion delivered from the bench on December 2, 2005. It is clear to us that the accident occurred while Smith was on a personal errand. The fact that Bain Enterprises gave Smith permission to drive his son home, which had a collateral benefit to the employer because it allowed Smith to continue working at the restaurant, is not sufficient to show that Smith's conduct was work-related at the time of the accident. Rogers v. Jordan, 339 N.J. Super. 581, 586 (App. Div. 2001).

Smith was employed as a cook. By definition, he was not performing a job-related function at the time the accident occurred, nor was the errand on behalf of his employer. To hold otherwise would make an employer liable any time it makes an accommodation to an employee to permit the employee to run personal errands on a regular basis during the employer's time. Such a prospect runs counter to sound public policy, and would be in derogation of the well-established principles of vicarious

liability we articulated in Rogers.

 
Affirmed.

At oral argument before us, plaintiff's counsel conceded that defendant McDonald's Corporation is not liable under any theory of vicarious liability for Smith's conduct. Plaintiff is thus not challenging the trial court's grant of summary judgment in favor of McDonald's.

(continued)

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4

A-2523-05T3

 

February 28, 2007