Elardo, Bragg, Appel & Rossi

Employer Not Liable – Employee Driving From Restaurant to Hotel

Engler v. Gulf Interstate Engineering, Inc.

Employee on extended out-of-town work assignment when, after work one day, he caused a motor vehicle accident while driving back to his hotel from a restaurant. Plaintiff sued for personal injuries, naming both employee and employer. Plaintiff alleged that the employer was vicariously liable for the employee’s negligence. Cross motions for summary judgment were filed as to whether the employee was acting in the course and scope of his employment when the accident occurred and, thus, whether the employer was vicariously liable for the employee’s alleged negligence.

The trial court granted summary judgment for the employer. The Court of Appeals affirmed. The Arizona Supreme Court granted review and affirmed.

Under Arizona law, an employer is vicariously liable for the negligent work-related conduct of its employees as long as they are acting within the scope of their employment. In determining course and scope, Arizona courts look to the extent to which the employee was subject to the employer’s control or right to control when the offending conduct occurred. An employee’s tortious conduct will fall outside the scope of employment when the employee engages in an independent course of action that does not further the employer’s purposes and is not within the employer’s control or right of control.

Here, the employer did not exercise any control over the employee at the time of the accident. The employee was not serving the employer’s interests when the accident occurred. As such, the employer could not be vicariously liable.

Although urged by Plaintiff, the Court declined to apply principles from worker’s compensation cases to view the scope of employment more broadly. Instead, the Court adopted Restatement (Third) of Agency § 7.07 as setting forth the appropriate test for evaluating whether an employee is acting within the scope of employment.

In addition, the Court distinguished the Arizona Court of Appeals decision in McCloud v. Kimbro, 224 Ariz. 121, 228 P.3d 113 (App. 2010), which involved a specific administrative regulation that provided an Arizona Department of Public Safety employee is within the course and scope of employment when driving a state-owned vehicle to and from meals while on out-of-state travel. There was no regulation that applied under the circumstances of this case. The Court held that, to the extent McCloud suggested that employees generally are acting within the course and scope of employment when driving to a restaurant during an extended out-of-town assignment, it was overruled.