Lessard v. Coronado

• Decision Date: 20 June 2007
• Docket Number: No. 26,005.,26,005.
• Citation: 2007 NMCA 122,168 P.3d 155
• Parties: Sue LESSARD and Joel Lessard, Plaintiffs-Appellants, v. CORONADO PAINT AND DECORATING CENTER, INC., a New Mexico corporation, Defendant-Appellee.
• Court: Court of Appeals of New Mexico

168 P.3d 155

2007 NMCA 122

Sue LESSARD and Joel Lessard, Plaintiffs-Appellants, v.CORONADO PAINT AND DECORATING CENTER, INC., a New Mexico corporation, Defendant-Appellee.

No. 26,005.

Court of Appeals of New Mexico.

June 20, 2007.

Certiorari Granted, No. 30,537, September 17, 2007.

Pierre Levy, Jane B. Yohalem, Santa Fe, NM, for Appellants.

Miller Stratvert, P.A., Alice Tomlinson Lorenz, Sheehan, Sheehan & Stelzner, P.A., Craig T. Erickson, Albuquerque, NM, for Appellee.

OPINION

CASTILLO, Judge.

{1} In this case, we review the entry of summary judgment in favor of Defendant, Coronado Paint and Decorating Center (Coronado), on the claims of respondeat superior and negligent hiring or retention brought by Plaintiffs, Sue Lessard(Lessard) and her husband, Joel Lessard.Summary judgment was granted by the trial court on grounds that employee Barry Fennell(Fennell) was acting outside the scope of his employment as a matter of law and that liability was thus precluded under both theories.In regard to the claim based on a theory of respondeat superior, we conclude that under the circumstances of this case, Fennell was acting outside the scope of his employment as a matter of law.In regard to the claim for negligent hiring or retention, we conclude that Coronado owed a duty to the motoring public and that any questions regarding the scope or breach of that duty, as well as questions of proximate cause, must be reserved for the fact-finder.Accordingly, we affirm in part, reverse in part, and remand for further proceedings in light of this opinion.

I.BACKGROUND

{2}This case arises out of an automobile accident between Lessard and Fennell.Lessard suffered serious injuries when Fennell's car crossed over the center line onto the wrong side of the road, struck Lessard's car, and thus caused it to roll.Filing a complaint against Coronado, as well as other parties, Lessard and her husband alleged that Coronado was liable under theories of respondeat superior and negligent hiring and retention.Upon Coronado's motion, the trial court granted summary judgment to Coronado on both causes of action and relied on Coronado's argument that an employer is not liable for the acts of an employee who is returning home from work at the end of the day.

{3} For the purposes of the summary judgment motion, Coronado asked the trial court to assume, without deciding, that Fennell was its employee.Coronado set out the following facts as undisputed:

1.On November 20, 2000, . . . Lessard and . . . Fennell were involved in an auto accident on Rancho Viejo Boulevard, in Santa Fe, New Mexico.

2.At the time of the accident, . . . Fennell was driving a vehicle owned by Clayton Gober.

3.At the time of the accident, . . . Fennell was on his way home from work, having left work at around 4:35 to 4:40 p.m.[,] and had traveled about a mile from the home building development.

4.The accident occurred at approximately 4:45 p.m.

5.Coronado . . . contracted with . . . Fennell to perform tile repair services on the Rancho Viejo home building development, and a couple of other locations.

6.During the time . . . Fennell worked for Coronado prior to the accident, he drove Mr. Gober's Toyota pickup truck.

7.Coronado . . . never lent . . . Fennell a vehicle, and . . . Fennell never drove one of Coronado[ ]'s company vehicles.

8.The manner in which . . . Fennell was to get to job[]sites was never discussed with Coronado[.]

(Citations omitted.)Based on these facts, Coronado argued that summary judgment was proper on the claim for respondeat superior because an employer is not liable for the negligence of employees who are simply traveling home after work is over for the day.In addition, Coronado argued that summary judgment was proper on the negligent hiring and retention claim because no connection existed between Coronado's business and Lessard and because hiring and retaining Fennell did not proximately cause Lessard's injuries.

{4} In her response, Lessard disputed facts 3, 5, 7, and 8 and qualified fact 6.We address Lessard's contentions in regard to facts 3, 6, 7, and 8 together because each contention tends to provide additional facts, rather than create a dispute about the fact offered by Coronado.In regard to fact 3, Lessard asserted that "[w]hile one possible construction of the events is that Fennell was on his way home from work, another is that Fennell had left the last job he was sent to by Coronado for the day."Our review of the record reveals that Fennell testified he was on his way home from work: "I was just getting off of work.I was going home."Lessard's contention is based on an additional fact-Fennell, on his way home from work, had just left the location of his last job for Coronado that day.Similarly, in regard to fact 6, Lessard admits that Fennell drove Gober's truck but further states that following the accident, Fennell drove a truck that was purchased for him by Coronado employee Miles Poteet(Poteet) after he bailed Fennell out of jail.Likewise, in regard to fact 7, Lessard disputed in part Coronado's assertion that it never loaned Fennell a vehicle or provided him with a company vehicle; Lessard added that after the accident, Poteet purchased a vehicle for Fennell, who in turn purchased the vehicle from Poteet.Further, in regard to fact 8, Lessard disputed Coronado's assertion that Coronado and Fennell never discussed the manner in which he would travel to job sites.Lessard contended that the facts show Coronado expected Fennell to drive to job sites to perform its repair work.Specifically, Lessard asserted that Poteet knew Fennell drove because Poteet regularly got materials ready for Fennell to pick up and that Poteet's actions in bailing Fennell out of jail and purchasing another truck for him were evidence that Coronado expected Fennell to drive to job sites.We conclude that Lessard's contentions, in regard to these undisputed facts set forth by Coronado, do not create issues of fact regarding Coronado's assertions, but rather consist of additional facts to be considered in our analysis.We discuss the relevance of these facts as they become pertinent to our discussion.

{5} Finally, in regard to fact 5, Lessard disputed Coronado's assertion that Coronado had contracted with Fennell.Lessard contends that a disputed fact exists regarding whether Fennell was an employee or a contractor.As observed earlier, however, Coronado stipulated that Fennell was an employee for the purposes of the summary judgment motion; thus, we conclude that this fact, though disputed, is not material to our discussion.

{6} Lessard offered additional statements of undisputed fact regarding Coronado's acts and omissions, as well as Fennell's driving record and drug use.Germane to our discussion are Lessard's statements that "Coronado specifically hired Fennell to drive to its customers' locations and perform repairs to tile work" and that Coronado depended on Fennell's driving to various job sites.Further, Lessard asserted that Poteet knew that Fennell drove, expected him to get to the job sites to perform repairs, and discussed with Fennell what supplies were needed in order to get the materials ready for Fennell to pick up.In addition, Lessard relied on the fact that Coronado gave Fennell a cell phone to use for communicating with Coronado and scheduling appointments with Coronado's customers.Later, in a supplemental brief requested by the trial court, Lessard relied on a weekly installation contract in support of her argument that Fennell's employment was conditioned on his use of a vehicle to drive from job site to job site.The contract provided that Fennell would insure the vehicle he used for work and that he would name Coronado as an additional insured.

{7} Thus, Lessard argued that genuine issues of material fact preclude summary judgment on both claims because factual issues exist regarding exceptions to the going and coming rule and regarding whether Coronado knew or should have known that Fennell was unfit to drive.After a hearing on the motion and supplemental briefing, the trial court found that no genuine issues of material fact exist and awarded summary judgment to Coronado, based on the arguments presented in its motion.

II.STANDARD OF REVIEW

{8}"Summary judgment is a drastic measure that should be used with great caution."Narney v. Daniels,115 N.M. 41, 47, 846 P.2d 347, 353(Ct.App.1992).Summary judgment is proper only when the material facts are undisputed and the remaining issues are the legal effects of those facts.Rule 1-056 NMRA;Richardson v. Glass,114 N.M. 119, 122, 835 P.2d 835, 838(1992).We review a grant of summary judgment de novo.Upton v. Clovis Mun. Sch. Dist.,2006-NMSC-040, ¶ 7, 140 N.M. 205, 141 P.3d 1259.We view the evidence and make all reasonable inferences in favor of the nonmoving party-in favor of granting a trial on the merits.Id.;Narney,115 N.M. at 47, 846 P.2d at 353.

III.DISCUSSION

{9} As a preliminary issue, we address the parties' use of the term "going and coming rule."Coronado used the term in the motion for summary judgment, and both parties have used the term throughout the pleadings below and in the briefs to this Court.As observed by Lessard in her brief in chief, New Mexico cases have referred to the going and coming rule only in workers' compensation cases.See, e.g., Ramirez v. Dawson Prod. Partners, Inc.,2000-NMCA-011, ¶ 7, 128 N.M. 601, 995 P.2d 1043.Ramirez discussed the going and coming rule in the workers' compensation arena: "[W]orkers injured while traveling between home and work are generally not eligible for compensation."Id.(observing that several exceptions exist);see alsoNMSA 1978, § 52-1-19(1987)(excluding from compensation "injuries to any worker occurring while on his way to assume the duties of his employment or after leaving such duties").A similar rule has been judicially established in the...