Opinion
C.A. No. 03C-02-113 JTV.
Submitted May 14, 2004.
Decided August 25, 2004.
Upon consideration of Defendants Tober Agnew and Earl Agnew's Motion for Summary Judgment. GRANTED.
Lois J. Dawson, Esq., Wilmington, Delaware. Attorney for Plaintiffs.
Robert K. Pearce, Esq., Ferry, Joseph Pearce, Wilmington, Delaware. Attorney for Defendant Vanheckle.
Roger D. Landon, Esq., Murphy, Spardaro Landon, Wilmington, Delaware. Attorney for Defendants Tober Agnew and Earl Agnew.
OPINION
Defendants Tober Agnew Construction, Inc. and Earl Agnew have filed a motion for summary judgment, contending that they are not vicariously liable for a tort allegedly committed by David A. Vanheckle. For the reasons which follow, I agree and grant the motion.
FACTS
The facts, viewed in the light most favorable to the plaintiffs, are as follows. David A. Vanheckle was an employee of Tober Agnew Construction, Inc., a construction company. A benefit of his employment was that he was given the use of a company vehicle. He kept the vehicle at his home, drove it to and from work each day, and had free use of it for personal purposes when he was off-duty. The company did not have any fixed business location, at least none that was relevant to Mr. Vanheckle's employment. He did not commute to and from a fixed business location each day. He drove to and from whatever construction site he happened to be assigned to that day. When he left home to go to work in the morning, he drove the company vehicle directly to the construction site at which he would be working that day, and at the end of the work day he drove the company vehicle home.
On the day in question, February 21, 2001, he left home in the company vehicle to go to work as usual. Before he got to work, he received a call from his wife, who was at their home, informing him that the plaintiff, David A. Conn, Sr., had threatened their son, Brian. Mr. Vanheckle then called his employer from the company vehicle, still on the way to work, and informed the employer that he needed to return home and deal with a situation. The employer had no objection. When Mr. Vanheckle arrived home, he became involved in a collision between his vehicle and Mr. Conn's vehicle. Whether the collision was intentional or merely negligent is unclear, but my decision upon the motion does not depend upon it being one or the other. After the collision, Mr. Vanheckle physically struck Mr. Conn.
STANDARD OF REVIEW
Summary judgment should be rendered if the record shows that there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law. The facts must be viewed in the light most favorable to the non-moving party. Summary judgment may not be granted if the record indicates that a material fact is in dispute, or if it seems desirable to inquire more thoroughly into the facts in order to clarify the application of the law to the circumstances. However, when the facts permit a reasonable person to draw but one inference, the question becomes one for decision as a matter of law.
Superior Court Civil Rule 56(c).
Guy v. Judicial Nominating Comm'n, 659 A.2d 777, 780 (Del.Super. 1995) Figgs v. Bellevue Holding Co., 652 A.2d 1084, 1087 (Del.Super. 1994).
Ebersole v. Lowengrub, 180 A.2d 467, 470 (Del. 1962).
Wooten v. Kiger, 226 A.2d 238 (Del. 1967).
DISCUSSION
An employer's liability for torts committed by an employee is discussed in the case of Draper v. Olivere Paving Construction Co. An employer is liable "only when those torts are committed by the servant within the scope of his employment which, theoretically at least, means that they were committed in furtherance of the master's business." It makes no difference whether the employee's tortious conduct is negligent or intentional.In Draper, the court approved the Restatement of Agency (2d), § 228, which reads as follows:
(1) Conduct of a servant is within the scope of employment if, but only if:
(a) it is of the kind he is employed to perform;
(b) it occurs substantially within the authorized time and space limits;
(c) it is actuated, at least in part, by a purpose to serve the master; and
(d) if force is intentionally used by the servant against another, the use of force is not unexpectable by the master.
(2) Conduct of a servant is not within the scope of employment if it is different in kind from that authorized, far beyond the authorized time or space limits, or too little actuated by a purpose to serve the master.
An act done in part to serve the purpose of the employer and in part to serve the purpose of the employee may be found to be within the scope of employment if the employer's business actuates the employee to any appreciable extent, under the "dual purpose" rule. No "nice inquiry" will be undertaken to attempt to separate the two. The fact that the employee acts primarily to benefit himself does not take the act outside the scope of his employment. However, when an employee's tortious action is purely personal, not connected by anything with the employment, it is outside the scope of employment and the employer is not liable.
Wilson v. Joma, Inc., 537 A.2d 187 (Del. 1988).
Id.
Id.
Screpesi v. Draper-King Cole, Inc., 1996 Del. Super. LEXIS 555.
Ordinarily, an employer is not liable for an employee's torts committed while the employee is commuting to and from home and work. There are exceptions, however, such as where there are no work premises as such, and the employee is driving to a business appointment. I will assume, arguendo, solely for purposes of this case only, that a jury could find that Mr. Vanheckle was acting within the scope of his employment when he was driving from home to the construction site for the day's work on February 21, 2001. Even if that be the case, when he went back home and became involved in an accident and then an apparent assault, he was acting on a purely personal matter having no bearing on his employment at all. The fact that he was driving a company vehicle does not change that conclusion.
Barnes v. Towlson, 405 A.2d 137 (Del.Super. 1979).
Id.
The plaintiffs contend that the trip home was a minor deviation from his employment. However, if an employee makes a minor deviation from his employment for a personal purpose, the deviation must, in some manner, serve the employer's interest. Here, the deviation served the employee's interest only.
Screpesi v. Draper-King Cole, Inc., 1996 Del. Super. LEXIS 555.
In support of his argument that Mr. Vanheckle's deviation from employment was minor, the plaintiff cites the cases of American International Ins, Co. v. Farm Family Cas. Ins. Co., 1999 WL 1442000 (Del.Super.) and Harrod v. Aetna Cas. Surety Co., 1991 WL 113314 (Del.Super.). However, those cases deal with the "minor deviation" rule in the context of permissive v. non-permissive use of a vehicle for insurance coverage purposes.
A jury could not conclude that Mr. Vanheckle was acting within the scope of his employment when he returned home on February 21, 2001 and engaged in allegedly tortious conduct with the plaintiff.
Defendant Earl Agnew is named a party individually. It appears from the parties' filings that there may be a dispute about whether the company vehicle was in his name or the company's name. In either event, no facts have been offered which would form any basis for a judgment against him individually.
For the foregoing reasons, the motion for summary judgment filed by defendants Tober Agnew Construction, Inc. and Earl Agnew is granted.