Henderson v. AT & T Information Systems, Inc.

KARWACKI, Judge. On October 17, 1986, appellant Michael E. Henderson filed a complaint against Daniel Zuckerman seeking damages for injuries arising out of a January 11, 1986 motor vehicle accident. His original complaint was amended on December 18, 1986 to assert that Zuckerman’s employer, AT & T Information Systems, Inc. (AT & T), the appellee, was vicariously liable for Zuckerman’s negligence. Carmen Crews, a passenger in Henderson’s vehicle at the time of the accident, intervened in the action as a co-plaintiff on ¹²⁹ June 22, 1987 and joins Henderson as an appellant in the case before this Court.

Appellants seek review of the October 13, 1987 order of the Circuit Court for Baltimore City (Ward, J.) granting appellee, AT & T, summary judgment. This judgment was entered under Rule 2-602(b) as a final judgment on March 28, 1988 by the late Judge Martin B. Greenfeld so that the appellants could immediately appeal it and avoid the possible expense of a second trial. At the hearing on the summary judgment motion, Judge Ward ruled, as a matter of law, that AT & T’s employee, Zuckerman, was not acting within the scope of his employment at the time of the motor vehicle accident and, therefore, that AT & T was not vicariously liable. We perceive no error in the hearing judge’s decision and shall affirm.

FACTS Since this is an appeal from an order granting appellee summary judgment, we shall review the evidence before the hearing judge in a light most favorable to the appellants and resolve all inferences from that evidence in their favor. Rule 2-501; Lesch v. Chevron, 75 Md.App. 669, 672 , 542 A.2d 1292 (1988). So viewed, the record before us discloses the following undisputed material facts. In the early afternoon of January 11,1986, the appellants were traveling in a southbound direction on Interstate Route 95 (JFK Highway).

Due to the abrupt loss of a wheel the 1979 Dodge van in which they were traveling came to a complete stop in the center southbound lane of the highway. Henderson exited the vehicle to search for the wheel, while Crews remained in the van. While Henderson was looking in the rear of the vehicle for emergency flares to display, he and the disabled van were struck from behind by an automobile which Zuckerman was driving in a southbound direction on I-95. 1 As a result of the ¹³⁰ accident Henderson sustained severe injuries including the loss of both legs. Mr. Zuckerman was en route from New Jersey to Virginia at the time of the accident.

He owned the 1976 AMC Hornet he was operating. Zuckerman became employed by AT & T in March of 1985. Under the terms of his employment, Zuckerman was to work at appellee’s Homdel, New Jersey location, as a software engineer, until the fall of 1985 when he was to participate in AT & T’s Graduate Study Program, One Year on Campus (OYOC). As a participant in the OYOC program, Zuckerman would become a full time resident student at an approved graduate institution for one year.

Zuckerman was given a list of AT & T approved colleges from which to choose in applying for graduate school. He evaluated a number of schools and applied for admission in the computer science master’s program at Purdue University, University of Southern California, New York Polytechnic and the University of Virginia. Zuckerman ultimately decided to attend the University of Virginia. Mr. Ritacco, Zuckerman’s supervisor at AT & T, approved Zuckerman’s selection and agreed that Zuckerman would begin his studies in January of 1986.

AT & T, pursuant to the OYOC program, advanced 100% of all tuition and fees for Zuckerman’s course of study at the University of Virginia. Zuckerman was compensated at 60% of his regular salary while attending school. 2 In the event Zuckerman did not complete his course of study he was subject to termination of employment by AT & T. If he successfully completed his course of study at the University of Virginia, Zuckerman would receive a salary increase from AT & T when he returned to work, reflecting his ¹³¹ additional education. 3 Zuckerman worked at AT & T’s Homdel location through Friday, January 10, 1986. He left New Jersey to drive to Charlottesville, Virginia on Saturday, January 11, 1986. Classes began on Tuesday, January 14, 1986.

Zuckerman elected to drive his own vehicle and was being reimbursed 21 cents per mile by AT & T. Zuckerman had the option of flying, or taking any mode of transportation he chose, to get to the University of Virginia. Zuckerman’s household belongings were relocated at AT & T’s expense. In AT & T’s OYOC Relocation Policy Manual specific rules were set out for the reimbursement of travel expenses. The maximum reimbursable mileage from Homdel to Charlottesville was estimated at 320 miles and Zuckerman was allowed one day to make the trip.

AT & T would pay for three meals and one night’s lodging for this trip. If Zuckerman chose to deviate from this guideline, he would not be reimbursed for any additional expenses. Zuckerman was required to fill out an en route trip expense log for submission to AT & T. Zuckerman has no recollection of the details of the accident. He remembers stopping on 1-95 at the Maryland House restaurant at approximately 12:45 that afternoon.

After lunch, he continued south on 1-95 where the accident occurred. SCOPE OF REVIEW According to Rule 2-501(e), summary judgment is appropriate “if the pleadings, depositions, answers to interrogatories, admissions, and affidavits show that there is no genuine dispute as to any material fact and that the party in whose favor judgment is entered is entitled to judgment as a matter of law.” In considering the matter, “the duly sworn facts which would be admissible in evidence and all ¹³² reasonable inferences deducible therefrom must be considered in a light most favorable to the party opposing the motion and against the party making the motion.” Washington Homes v. Interstate Land Development Co., 281 Md. 712, 717-18 , 382 A.2d 555 (1978). Mere conclusory allegations, however, neither establish facts nor generate a genuine dispute of fact. Hebb v. Walker, 73 Md.App. 655, 662 , 536 A.2d 113 (1988).

Hence upon our review, if we determine, resolving all inferences in favor of the non-moving party, that there exists a genuine dispute of fact, material to the resolution of the case, an award of summary judgment will be reversed. This is not such a case. ISSUE PRESENTED Under the doctrine of respondeat superior, an employer is vicariously liable for the negligent acts of its employee if those acts are committed within the scope of employment. Embrey v. Holly, 293 Md. 128, 134 , 442 A.2d 966 (1982); Globe Indemnity Co. v. Victill Corp., 208 Md. 573, 580 , 119 A.2d 423 (1956); Kuykendall v. Top Notch Laminates, Inc., 70 Md.App. 244, 249 , 520 A.2d 1115 (1987), cert. denied, 310 Md. 2 , 526 A.2d 954 (1987).

To be within the scope of employment the conduct of the employee must be “of a kind the actor is employed to perform, occur during a period not unreasonably disconnected from the authorized period of employment, in a locality not unreasonably distant from the authorized area, and actuated at least in part by a purpose to serve the master.” A. & P. Co. v. Noppenberger, 171 Md. 378, 390 , 189 A. 434 (1937), quoting the Restatement (Second) of Agency § 229 (1958). In short, the test for determining if an employee is acting within the scope of employment is “whether the servant was advancing his master’s interests in doing what he did at the time he did it.” Rusnack v. Giant Food, Inc., 26 Md.App. 250, 261-65 , 337 A.2d 445 (1975), cert. denied, 275 Md. 755 (1975). In Henkelmann v. Metropolitan Life Insurance Co., 180 Md. 591, 599 , 26 A.2d 418 (1942), the Court of Appeals ¹³³ discussed respondeat superior liability with respect to the use of automobiles. The Court stated: In recent years, on account of the extensive use of the motor vehicle with its accompanying dangers, the courts have realized that a strict application of the doctrine of respondeat superior in the modern commercial world would result in great injustice____ It is now held by the great weight of authority that a master will not be held responsible for negligent operation of a servant’s automobile, even though engaged at the time in furthering the master’s business unless the master expressly or impliedly consents to the use of the automobile, and, that had the right to control the servant in its operation, or else the use of the automobile was of such vital importance in furthering the master’s business that his control over it might reasonably be inferred.

(Citations omitted.) Id. In Henkelmann , the employee was an insurance salesman who was involved in an automobile accident on his way, in his own vehicle, to his assigned “territory.” A car was not necessary to the performance of his duties and the employer had never consented to or authorized the use of a personal vehicle either to travel to or from the assigned area or while working within it. The Court of Appeals held that the insurance company was not vicariously liable for the negligence of its salesman under these circumstances. The general rule is that, absent special circumstances, an employer will not be vicariously liable for the negligent conduct of his employee occurring while the employee is traveling to or from work.

Dhanraj v. Potomac Elec. Power Co., 305 Md. 623, 628 , 506 A.2d 224 (1986). Annot., 52 A.L.R.2d 287 , 303 (1957). It is essentially the employee’s own responsibility to get to and from work.

Restatement (Second) of Agency § 229, comment d (1958). Appellants recognize this general rule but argue that it is not applicable to the instant case. Zuckerman, they contend, was not merely traveling to work on January 11, 1986; he was relocating at the specific direction of AT & T. Appellants argue that there was sufficient evidence of AT & T’s ¹³⁴ consent to the use of Zuckerman’s personal automobile and AT & T’s control of the operation of the automobile to create vicarious liability for its employee’s negligent operation of said automobile. The hearing judge disagreed and held that Dhanraj v. Potomac Electric Power Co., supra, was dispositive.

In Dhanraj, a PEPCO employee, while driving his own vehicle, was involved in an automobile accident while traveling to an employer endorsed six-week training course located some distance from both his home and from his ordinary work place. The employee was given a travel allowance in order to attend these classes, but was not told what means of transportation to utilize. Further, the employee was not compensated for his travel time. His work day began when he reached the training facility and ended when he departed.

The plaintiff sued PEPCO, alleging respondeat superi- or liability. The hearing judge entered summary judgment in favor of PEPCO; we affirmed, 4 as did the Court of Appeals. In upholding the summary judgment, the Court of Appeals concluded that: [I]f Sandy