McNair v. Lend Lease Trucks, Inc.

• Citation: 62 F.3d 651
• Decision Date: 21 August 1995
• Docket Number: No. 93-2528,93-2528
• Parties: Catherine McNAIR, Ancillary Administratrix for the Estate of Edward Earl McNair, Plaintiff-Appellant, and Edward Earl McNair, deceased, Plaintiff, v. LEND LEASE TRUCKS, INCORPORATED; Lend Lease Dedicated Services, Incorporated, Defendants-Appellees, and Robert Monroe, Administrator of the Estate of Thomas Paul Jones; Thomas Paul Jones, deceased, Defendants.
• Court: United States Courts of Appeals. United States Court of Appeals (4th Circuit)

Page 651

62 F.3d 651

Catherine McNAIR, Ancillary Administratrix for the Estate of Edward Earl McNair, Plaintiff-Appellant, and Edward Earl McNair, deceased, Plaintiff, v. LEND LEASE TRUCKS, INCORPORATED; Lend Lease Dedicated

Services, Incorporated, Defendants-Appellees,

and

Robert Monroe, Administrator of the Estate of Thomas Paul

Jones; Thomas Paul Jones, deceased, Defendants.

No. 93-2528.

United States Court of Appeals,

Fourth Circuit.

Argued June 8, 1994.

Decided Aug. 21, 1995.

ARGUED: Karen M. Rabenau, Blanchard, Twiggs, Abrams & Strickland, P.A., Raleigh, NC, for appellant. John C. Millberg, Millberg & Gordon, P.L.L.C., Raleigh, NC, for appellees. ON BRIEF: Douglas B. Abrams, Blanchard, Twiggs, Abrams & Strickland, P.A., Raleigh, NC, for appellant. Richard N. Cook, Maupin, Taylor, Ellis & Adams, P.A., Raleigh, NC, for appellees.

Before HALL and HAMILTON, Circuit Judges, and PHILLIPS, Senior Circuit Judge.

Affirmed by published opinion, Senior Judge PHILLIPS wrote the majority opinion in which Judge HAMILTON joined. Judge K.K. HALL wrote a dissenting opinion.

OPINION

PHILLIPS, Senior Circuit Judge:

Catherine McNair, ancillary administratrix of the estate of Edward Earl McNair, brought action in state court against Thomas Paul Jones and his employers, Lend Lease Trucks, Inc. and Lend Lease Dedicated Services, Inc., seeking damages for the wrongful death of her intestate. Following removal of the case on grounds of diversity, and the entry of default judgment against Jones, the United States District Court held that McNair failed to state a claim against the employers under the doctrine of respondeat superior because Jones was not acting within the course and scope of his employment at the time of McNair's death, and so granted the employers' Rule 12(b)(6) motion to dismiss. On McNair's appeal, we affirm.

I

The general facts, as alleged in the complaint and accepted as true for purposes of this appeal, are as follows. Thomas Paul Jones was employed by Lend Lease Trucks, Inc. and Lend Lease Dedicated Services, Inc. ("Lend Lease" or "Lend Lease defendants") as an interstate tractor-trailer driver. On May 25, 1991, Jones was on an interstate assignment for the Lend Lease defendants. "Before dusk" ¹ on that day, Jones parked the tractor-trailer rig on the shoulder of U.S. Highway 301 near Kenly, North Carolina and crossed the highway to have dinner at the Dry Dock Lounge. In addition to eating at the restaurant, Jones consumed an unspecified quantity of alcoholic beverages. He remained in the restaurant until approximately 11:15 p.m. at which time he left the restaurant and began crossing the highway in order to return to his rig. While attempting to cross U.S. 301, Jones "darted" in the path of a motorcycle driven by Edward McNair. Both McNair and Jones were killed in the ensuing collision.

Catherine McNair brought this wrongful death action against Jones and the Lend Lease defendants in state court alleging that the collision and McNair's death were proximately caused by Jones' negligent and grossly negligent conduct while acting in the course and scope of his employment by the Lend Lease defendants. Following removal of the action, default judgment was entered against Jones' estate. On the motion of the Lend Lease defendants under Fed.R.Civ.P. 12(b)(6), the district court dismissed the vicarious liability claim against those defendants on the stated basis that Jones was not acting within the course and scope of his employment with Lend Lease at the time of the collision. ²

This appeal followed.

II

The issue is whether the district court erred in ruling that, as a matter of law on the record before the court, Jones was not acting within the scope of his employment when he darted into the path of McNair's motorcycle on his ill-fated attempted passage from the Dry Dock Lounge to his tractor-trailer rig. We review that ruling de novo, which means on the full record properly before the district court, and independently of the district court's particular legal reasoning or evidentiary assessment. See generally 10 Wright, Miller & Kane, Federal Practice & Procedure: Civil Sec. 2716, at 658-60 (1983).

North Carolina substantive law controls the decision in this diversity case. The relevant substantive principles from that source are the familiar ones generally applicable to the determination of respondeat superior tort liability in this type of case. The content of these familiar principles is not in dispute, only their application to the facts properly before the court. We summarize the principles most relevant here.

The basic principle of course is that an innocent employer (master) is vicariously liable for injuries (or death) proximately caused by the negligence of his employee (servant) if the negligent conduct occurred while the employee was acting within the course and scope of his employment. See Parrott v. Kantor, 216 N.C. 584, 6 S.E.2d 40, 43 (1939). The agreed issue here in application of that basic principle is whether at the time he "darted in the path" of McNair's oncoming motorcycle, Jones was acting in the course and scope of his employment by his Lend Lease employers. There is no dispute that on the facts as alleged in McNair's complaint, Jones was then negligent and that his negligence was the proximate cause of McNair's death.

As to that dispositive "course and scope of employment" issue, the relevant principle under North Carolina law, as generally, is well-settled in formulation. As typically put, it embraces both what it means to be "within the course and scope," and how an employee may depart from that scope by "going on a frolic of his own," to employ the ancient phrase.

A servant is acting in the course of his employment when he is engaged in that which he was employed to do, and is at the time about his master's business. He is not acting in the course of his employment if he is engaged in some pursuit of his own. Not every deviation from the strict execution of his duty is such an interruption of the course of employment as to suspend the master's responsibility, but, if there is a total departure from the course of the master's business, the master is not answerable for the servant's conduct.

Id.; see also Gallop v. Clark, 188 N.C. 186, 124 S.E. 145, 147 (1924) ("whether done ... in furtherance [of master's business]"; "incident to the performance of duties").

And there is the subsidiary "frolic and detour" principle which becomes relevant when an employee who has sufficiently "deviated" from the "strict execution of his duty" to "suspend the employer's responsibility" arguably has later re-entered upon the duties of his employment. In such a situation "the relation of master and servant is not restored until [the servant] has returned to the place where the deviation occurred, or to a corresponding place, some place where in the performance of his duty he should be." Kantor, 6 S.E.2d at 43; see also Duckworth v. Metcalf, 268 N.C. 340, 150 S.E.2d 485, 488-89 (1966); Hinson v. Virginia-Carolina Chemical Corp., 230 N.C. 476, 53 S.E.2d 448, 451-52 (1949).

Invoking these principles, the parties joined issue in the district court, and continue to join issue here, on two questions: (1) whether, as a matter of law on the facts properly before the district court, Jones ever sufficiently deviated from the course and scope of his employment to relieve the Lend Lease defendants of vicarious responsibility, and (2) whether, if he did so deviate, he had sufficiently returned to the performance of his duty at the time he darted into the path of McNair's motorcycle that he was then back within the course and scope of his employment.

McNair's contention, both in the district court and here, is that on the bare factual record before the court it could not be said as a matter of law that Jones ever departed. Specifically, she argues that it only appears from the record that Jones left his rig to get food and drink and that while doing so he "began to consume" some alcoholic beverages. Neither of these standing alone, she says, as a matter of law constitutes a sufficient deviation to take him outside the course and scope of his employment. Alternatively, she argues that if at some point by virtue of the duration of his stay for food and drink or his consumption of alcohol, or both, he could properly be held to have deviated sufficiently, it could not be said as a matter of law that he had not yet returned to the performance of his duties when, demonstrably on the way to his rig, the accident occurred. Indeed, she contends, we should rule that, as a matter of law on the facts of record, he never departed, or, that if he did, he had sufficiently returned to the performance of his duties when he left the Dry Dock Lounge with the intent to return to his rig. On this basis, she asks that we reverse the district court and either effectively rule that Lend Lease is vicariously liable, or at least remand for further proceedings in which the facts may be more fully developed.

On the other side, the Lend Lease defendants have conceded that stopping for food and drink and consuming alcoholic beverages while doing so do not, standing alone, take a truck-driver employee outside the course and scope of his employment as a matter of law. They contend, however, that the combination of a three or four-hour stop that includes the consumption of alcohol does as a matter of law constitute a sufficient deviation to take him outside the course and scope of employment. And, they argue that as a matter of law Jones could not be held to have re-entered the scope of his employment until at least such time as he might have reached his rig and resumed his trip. Accordingly, they contend that the district court properly dismissed the vicarious liability claim on the record before it.

Addressing the issues so presented, the district court held that as a matter of law on the facts as alleged in McNair's...