McNair v. Lend Lease Trucks, Inc.

• Decision Date: 10 September 1996
• 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: U.S. Court of Appeals — Fourth Circuit

Page 325

95 F.3d 325

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 Jan. 30, 1996.

Decided Sept. 10, 1996.

ARGUED: Donald Haskell Beskind, Blanchard, Twiggs, Abrams & Strickland, P.A., Raleigh, North Carolina, for Appellant. John C. Millberg, Maupin, Taylor, Ellis & Adams, P.A., Raleigh, North Carolina, for Appellees. ON BRIEF: Karen M. Rabenau, Blanchard, Twiggs, Abrams & Strickland, P.A., Raleigh, North Carolina, for Appellant. Richard N. Cook, Maupin, Taylor, Ellis & Adams, P.A., Raleigh, North Carolina, for Appellees.

Before WILKINSON, Chief Judge, RUSSELL, WIDENER, HALL, MURNAGHAN, ERVIN, WILKINS, NIEMEYER, HAMILTON, LUTTIG, WILLIAMS, MICHAEL, and MOTZ, Circuit Judges, and PHILLIPS, Senior Circuit Judge.

Vacated and remanded by published opinion. Judge HALL wrote the majority opinion, in which Chief Judge WILKINSON and Judges MURNAGHAN, ERVIN, WILKINS, LUTTIG, WILLIAMS, MICHAEL, and MOTZ joined. Judge WIDENER wrote a separate concurring opinion. Senior Judge PHILLIPS wrote a dissenting opinion in which Judges RUSSELL, NIEMEYER and HAMILTON joined.

OPINION

K.K. HALL, Circuit Judge:

Catherine McNair, administratrix of the estate of Edward Earl McNair, brought an action in state court against Thomas Paul Jones and his employer, Lend Lease, ¹ seeking damages for the wrongful death of her intestate. The action was removed on diversity grounds, and default judgment was entered against Jones. The court ruled that Jones was outside the scope of his employment at the time of the accident and, therefore, McNair had failed to state a claim against the employer under the doctrine of respondeat superior. Lend Lease's Rule 12(b)(6) motion to dismiss was granted, and McNair appeals.

I

On appeal from an order granting a motion to dismiss under Fed.R.Civ.P. 12(b)(6), we accept as true the facts alleged in the complaint. Doe v. Doe, 973 F.2d 237, 238 (4th Cir.1992). These facts are that Thomas Paul Jones was employed by Lend Lease to drive a truck on interstate routes. On May 25, 1991, "before dusk," ² he stopped his truck on the side of a highway in North Carolina and walked across the highway to the Dry Dock Lounge. While there, "he began to consume alcoholic drinks." At 11:15 P.M., he left and began to cross the highway "in order to enter the tractor trailer" when he "suddenly darted in front of the motorcycle being operated by Plaintiff's decedent." The two collided, and McNair and Jones were killed. It was later determined that Jones' blood alcohol level was .28%, almost three times the legal limit for someone operating a motor vehicle. ³ The court held that Jones had deviated from the scope of his employment when he first stopped his truck or, alternatively, when he embarked on his drinking spree, and, further, that he had not returned to the scope at the time of the accident.

II

The plaintiff contends that Jones' negligence was the proximate cause of her decedent's death and that his negligence should be imputed to Lend Lease under the doctrine of respondeat superior. The district court ruled that, as a matter of law, Jones was outside the scope of his employment at the time of the collision, and, therefore, Lend Lease could not be held vicariously liable. We review this ruling de novo. Revene v. Charles County Comm'rs, 882 F.2d 870, 872 (4th Cir.1989). With respect to questions of law, we must predict how the Supreme Court of North Carolina would rule. Doe, 973 F.2d at 240. ⁴ The sufficiency of the pleadings, however, is a procedural matter to which federal law applies, and our longstanding rule has been "that a motion to dismiss for failure to state a claim should not be granted unless it appears to a certainty that the plaintiff would be entitled to no relief under any state of facts which could be proved in support of his claim." Rogers v. Jefferson-Pilot Life Ins. Co., 883 F.2d 324, 325 (4th Cir.1989) (quoting Johnson v. Mueller, 415 F.2d 354, 355 (4th Cir.1969)). Our task, then, is to first ascertain the substantive state law and then to apply it to determine whether, on the record before the district court, the plaintiff could prove any set of facts that would permit a finding of respondeat superior liability.

III

The fundamental principle of respondeat superior is simply stated: An employer is liable for his employee's torts that occur while the employee is "acting in the scope of his employment or about his master's business." Parrott v. Kantor, 216 N.C. 584, 6 S.E.2d 40, 43 (1939). An employer can escape liability, however, under an equally well established rule: An employee who deviates from his work to engage "in some pursuit of his own" is not acting within the scope of his employment. Id. The deviation, however, must be complete:

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 no longer answerable for the servant's conduct.... The departure commences when the servant definitely deviates from the course or place where in the performance of his duty he should be.

Hinson v. Virginia-Carolina Chemical Corp., 230 N.C. 476, 53 S.E.2d 448, 452 (1949) (internal citations omitted). Scope questions have been characterized as mixed questions of law and fact. Sandy v. Stackhouse Inc., 258 N.C. 194, 128 S.E.2d 218, 221 (1962). With these basic principles in mind, we turn to the facts.

A

The district court held that Jones left the scope of employment when he stopped on the side of the road and left the cab of his truck to walk to the lounge. We disagree with the court's view that Jones "was on a mission of his own and was not in the course and scope of his employment" as soon as he left the truck to eat. During arguments on the motion to dismiss, Lend Lease's lawyer conceded that a truck driver on an extended trip is "probably within the scope of his employment" when he takes "any reasonable breaks [ ] for meals or to rest or for whatever reason or purpose."

The district court cited as a general rule that an employee driving his own or even his employer's vehicle to a place where he intends to eat is not ordinarily within the scope of his employment until he resumes his job duties. This is indeed the general rule, the theory being that the employee furthers no interests of his employer during a lunch break and is free to pursue his own interests during the allotted period. See generally W.E. Shipley, Annotation, Employer's Liability for Employee's Negligence in Operating Employer's Car in Going To or From Work or Meals, 52 A.L.R.2d 350, 381 § 11 (1957). In Sandy, decedent was on a line crew that was working out of town repairing hurricane damage. After the day's work was completed and he had returned to his motel, he decided to go for beer and soda at a store 1/4 mile from the motel. As he was returning to the motel, he was killed in an automobile accident. He was denied workers' compensation on the ground that he was off duty and the accident did not happen while the employee was "engaged in the discharge of some function or duty which he [was] authorized to undertake and which [was] calculated to further, directly or indirectly, the master's business." Id. (citation omitted). ⁵

A long-haul trucker, however, often has no choice but to stop on the road to eat. See Roberts v. Burlington Industries, Inc., 321 N.C. 350, 364 S.E.2d 417, 423 (1988) ("We have held that when an employee's duties require him to travel, the hazards of the journey are risks of the employment.") (citing Hinkle v. City of Lexington, 239 N.C. 105, 79 S.E.2d 220 (1953)). In Jones' case, where and when he stopped was no doubt dictated in large part by the route and length of the driving assignment. Moreover, it is likely that government regulation and company policy required stops at regular intervals and of some minimum length. See, e.g., 49 C.F.R. § 395.3 (1990) (I.C.C. requires that interstate drivers certify that they have obtained sufficient rest during course of driving assignment). It may be, then, that stopping and leaving his truck when and where he did would not take him outside the scope of his employment. If Jones deviated as a matter of law, the deviation must be found at some point farther into the evening.

B

If stopping and taking a "reasonable break" does not take Jones outside the scope, is a 3-4 hour break unreasonable as a matter of law? We are unable to say so from the record before us, for many of the same reasons that we cannot say that any break does not automatically remove a driver from the scope. The question of what is reasonable must be informed by a host of facts that have yet to be developed: What rules and policies applied to his situation? How far had he driven that day, and how much farther had he to go? When was his last stop, and when would he next have a chance to stop? See, e.g., Turnbow v. Hayes Freight Lines, 15 Ill.App.2d 57, 145 N.E.2d 377, 380 (1957) (holding that an interstate driver en route to motel for rest stop required by I.C.C. and by employer rules was within scope of employment). The temporal and spatial circumstances of this case do not compel a finding that Jones was outside the scope of his employment at the time of the accident.

C

The next point at which the district court found a departure from the scope of his employment was "when [Jones] chose to remain in the bar and consume alcoholic beverages until 11:15 p.m...." This alternative holding involves a "frolic" that is unlike the usual case of an...