Spencer v. V.I.P., Inc.

• Decision Date: 25 October 2006
• Citation: Spencer v. V.I.P., Inc., 910 A.2d 366, 2006 ME 120 (Me. 2006)
• Parties: James SPENCER et al. v. V.I.P., INC. et al.
• Court: Maine Supreme Court

Page 366

910 A.2d 366

2006 ME 120

James SPENCER et al. v. V.I.P., INC. et al.

Supreme Judicial Court of Maine.

Argued: April 11, 2006.

Decided: October 25, 2006.

Stephen B. Wade (orally), James E. Belleau, Jennifer L. Thompson, Skelton, Taintor & Abbott, P.A., Auburn; Tracie L. Adamson, Sumner H. Lipman, Lipman, Katz & MacKee, P.A., Augusta, for plaintiffs.

Philip E. Johnson (orally), Johnson & Webbert, L.L.P., Augusta, for defendant V.I.P., Inc.; Wendell G. Large, Richardson, Whitman Large & Badger, Portland, for defendant Justin Laliberte.

Panel: SAUFLEY, C.J., and DANA, CALKINS, LEVY, and SILVER, JJ.

Majority: DANA, CALKINS, and SILVER, JJ.

Dissent: SAUFLEY, C.J., and LEVY, J.

DANA, J.

[¶ 1] James Spencer, individually and as the personal representative of Nancy Spencer's estate, and Brittany Spencer appeal from a summary judgment entered in the Superior Court (Oxford County, Gorman, J.) in favor of V.I.P., Inc. They contend that the court erred in concluding that, when V.I.P. employee Justin Laliberte's vehicle collided with the Spencers' vehicle, Laliberte was not acting within the scope of his employment, and V.I.P., consequently, could not be held vicariously liable. Finding genuine issues of material fact as to whether Laliberte was acting within the scope of his employment, we vacate the summary judgment.

I. BACKGROUND

[¶ 2] The following facts are undisputed. Laliberte, an hourly employee at V.I.P.'s Lewiston warehouse, volunteered to help set up for the 2002 Show, Shine & Drag, an annual promotional event sponsored by V.I.P. and held at the Oxford Plains Speedway, during which the public is invited to view cars, vendor products, and drag racing. Hourly employees who volunteered to help set up received $25 cash and a T-shirt.

[¶ 3] Pursuant to his commitment, Laliberte awoke at 4:30 A.M. on July 20, 2002, and drove to the Oxford Plains Speedway where he began setting up at 6:00 A.M. He completed his work in approximately one hour and then departed. While driving home, Laliberte's vehicle crossed into the on-coming lane and collided with the vehicle containing James, Nancy, and Brittany Spencer. As a result of the collision, Nancy was killed and James and Brittany were injured.

[¶ 4] James, individually and as the personal representative of Nancy's estate, and Brittany commenced this action against Laliberte and V.I.P., seeking damages for James's and Brittany's personal injuries and Nancy's suffering and wrongful death. V.I.P. moved for a summary judgment arguing that, inasmuch as Laliberte was not acting within the scope of his employment at the time of the accident, V.I.P. could not be held vicariously liable. The court granted V.I.P.'s motion, and James and Brittany brought this appeal.

II. DISCUSSION

[¶ 5] Summary judgment is appropriate when the parties' statements of material facts and the portions of the record referred to therein disclose no genuine issues of material fact and reveal that one party is entitled to judgment as a matter of law. M.R. Civ. P. 56(c).

We review the grant of a motion for summary judgment de novo. In our review, we consider the evidence and reasonable inferences that may be drawn from the evidence in the light most favorable to the party against whom the summary judgment has been granted in order to determine if the parties' statements of material facts and referenced record evidence reveal a genuine issue of material fact.

Lever v. Acadia Hosp. Corp., 2004 ME 35, ¶ 2, 845 A.2d 1178, 1179.

[¶ 6] In determining whether an employer is vicariously liable for the actions of an employee, Maine follows the RESTATEMENT (SECOND) OF AGENCY (1958) and holds an employer liable only if its employee's action occurred within the scope of employment. Mahar v. StoneWood Transp., 2003 ME 63, ¶ 13, 823 A.2d 540, 544. Under RESTATEMENT (SECOND) OF AGENCY § 228(1) as it applies in the present case, an employee's action occurs within the scope of employment if "(a) it is of the kind he is employed to perform; (b) it occurs substantially within the authorized time and space limits; [and] (c) it is actuated, at least in part, by a purpose to serve the master."¹

[¶ 7] To determine whether there is a genuine issue of material fact as to whether the travel to and from the Oxford Plains Speedway was within the scope of Laliberte's employment, we begin by considering whether the statements of material facts and referenced record evidence support a finding that the travel was part of a task Laliberte was employed to perform. James referenced testimony that the $25 received by hourly employees who helped set up was intended to cover any expenses, including gas.² James further referenced testimony that hourly employees who traveled more than two hours to help set up could, upon approval, receive mileage in addition to the $25 and that salaried employees could receive only mileage. Inasmuch as these references suggest that the $25 was intended, at least in part, as compensation, they support a finding that the travel was part of a task Laliberte was employed to perform.³

[¶ 8] We next consider whether the statements of material facts and referenced record evidence support a finding that the travel occurred substantially within the authorized time and space limits. Certain references indicating that the travel at issue occurred at the time reasonably expected—i.e., immediately before and after Laliberte completed his set-up work— support such a finding.

[¶ 9] We finally consider whether the statements of material facts and referenced record evidence support a finding that the travel was actuated, at least in part, by a purpose to serve V.I.P. Inasmuch as it was necessary in order to perform the set-up work, the travel might be found to have been actuated by a purpose to serve V.I.P. Because the statements of material facts and referenced record evidence reveal a genuine issue of material fact as to whether the travel was within the scope of Laliberte's employment, the summary judgment cannot stand.⁴

The entry is:

Summary judgment vacated. Remanded to the Superior Court for further proceedings consistent with this opinion.

SAUFLEY, C.J., dissenting, with whom, LEVY, J., joins.

[¶ 10] I must respectfully dissent. The decision of the court today may ultimately cause employers to become the insurer for all harm caused on the highways by their employees while driving to or from work. It also changes Maine law, and moves Maine out of step with tort law across the country. This extraordinary expansion of liability without limitations or guidance is unprecedented. I would affirm the judgment because the Superior Court correctly concluded, as a matter of law, that Justin Laliberte was not acting within the scope of his employment with V.I.P., Inc., at the time his car collided with the car of James, Nancy, and Brittany Spencer.

[¶ 11] I first note that the catastrophe that struck the Spencer family when Justin Laliberte lost control of his car cannot be overstated. The death of a mother and injury to a father and his child cannot be treated as anything other than tragic. If Justin Laliberte was negligent, it is he who must be held responsible. However, to reach for other methods to compensate the family for their loss by making Laliberte's employer responsible for his nonwork-related driving will have profound consequences on the economics of employment. Such a shift in fiscal responsibility for the act of a single person who was not at work should be brought about by legislative action where the costs and risk assessment can be debated and discussed. To shift responsibility to the employers of the people driving on Maine roads through the sweep of the judicial pen moves the Court outside of its constitutional role. We should apply the law that exists today: a person who is going to or coming from work is responsible for his or her own actions.

[¶ 12] This result is dictated first of all by our precedent, which requires us to follow the principles of vicarious liability set forth in the RESTATEMENT (SECOND) OF AGENCY (1958). See Mahar v. StoneWood Transp., 2003 ME 63, ¶ 13, 823 A.2d 540, 544; see also McLain v. Training & Dev. Corp., 572 A.2d 494, 497-98 (Me.1990). The Court acknowledges the existence of the RESTATEMENT by quoting section 228(1)(a)-(c), which provides the relevant test for determining whether a servant's conduct is within the scope of employment. The Court's opinion, however, applies section 228 in a vacuum, without acknowledging that its rule "is given more content by . . . subordinate rules, commentary and illustrations" within the RESTATEMENT, as well as "by case law and rules of thumb." Lyons v. Brown, 158 F.3d 605, 609 (1st Cir.1998) (applying Maine law).

[¶ 13] The RESTATEMENT commentary provides useful guidance. It notes that section 228 is governed by an important rule found in a previous section:

As stated in Section 220, one is a servant only if, as to his physical conduct in the performance of the service, he is subject to the control or to the right to control of the master. Hence, there is no liability for the conduct of one who, although a servant in performing other service, is doing work as to which there is no control or right to control by the master.

RESTATEMENT (SECOND) OF AGENCY § 228 cmt. c (1958) (emphasis added).⁵ This rule is central to the issue in this case. Equally important is the rule of section 228(1)(c) & (2), expanded upon by section 235, that conduct is not within the scope of employment if it is not actuated by a purpose to serve the master. The RESTATEMENT commentary explicitly applies these rules to the issue of employer liability for the torts of a commuting employee. See id. §§ 229 cmt. d, 233 cmt. c, illus. 3.⁶

[¶ 14] These rules leave no doubt about the correct result in this case. When the collision with the Spencers occurred, Laliberte was driving home from Oxford Plains Speedway after performing work there for...