Estes v. Comstock Homebuilding Companies

• Decision Date: 03 March 2009
• Docket Number: No. COA08-730.,COA08-730.
• Citation: Estes v. Comstock Homebuilding Companies, 673 S.E.2d 399, 195 N.C. App. 536 (N.C. App. 2009)
• Parties: David ESTES, as Trustee for Estes Family Revocable Trust, Plaintiff v. COMSTOCK HOMEBUILDING COMPANIES, INC.; Comstock Holding Company, Inc., Comstock Homes of North Carolina, L.L.C. and Comstock Homes of Raleigh, L.L.C. and Heidi Haskell, Defendants.
• Court: North Carolina Court of Appeals

673 S.E.2d 399

David ESTES, as Trustee for Estes Family Revocable Trust, Plaintiff v.COMSTOCK HOMEBUILDING COMPANIES, INC.; Comstock Holding Company, Inc., Comstock Homes of North Carolina, L.L.C. and Comstock Homes of Raleigh, L.L.C. and Heidi Haskell, Defendants.

No. COA08-730.

Court of Appeals of North Carolina.

March 3, 2009.

Appeal by defendants from an order entered 4 February 2008 by Judge A. Leon Stanback, Jr. in Wake County Superior Court. Heard in the Court of Appeals 10 December 2008.

Brown, Crump, Vanore & Tierney, L.L.P., by R. Scott Brown and W. John Cathcart, Jr., Raleigh, for plaintiff-appellee.

Heidi Haskell, defendant-appellee, pro se.

Ragsdale Liggett PLLC, by Walter L. Tippett, Jr. and Amie C. Sivon, Raleigh, for defendant-appellants.

HUNTER, Judge.

On 19 April 2004, a fire negligently started by defendantHeidi Haskell("Ms. Haskell"), an employee of defendant Comstock ("Comstock")¹, caused damage to a house located at 1004 Fairfax Woods Drive in Apex, North Carolina.At the time of the fire, the house was owned by David Estes("plaintiff"), as Trustee for Estes Family Revocable Trust, but was leased to Comstock as the sales model home for a housing subdivision.Plaintiff brought an action against both Ms. Haskell and Comstock.After the completion of discovery, both parties submitted motions for summary judgment on the issue of respondeat superior.The trial court ruled in favor of plaintiff, finding that Ms. Haskell was within the course and scope of her employment when the negligent act occurred, and therefore her negligence was imputed to Comstock.Comstock appeals from this order.After careful review, we affirm.

Background

On the day of the fire, Ms. Haskell was the only sales assistant on duty at the model home.According to the deposition of Ms. Haskell's supervisor, it was Comstock's policy for a single sales assistant not to leave the premises of the model home for any reason other than to show a property to a potential customer.There is no dispute that Ms. Haskell followed that directive.

According to the written job criteria list prepared by Comstock, Ms. Haskell was required to perform many tasks associated with sales while on duty, such as assisting any potential customer who entered the model home and answering the telephone.She was also required to perform certain clerical duties and general maintenance of the property, such as changing light bulbs and removing trash or debris around the exterior of the house.

Immediately before the fire started, Ms. Haskell went onto the attached deck of the model home to smoke a cigarette.While doing so, she heard the telephone ring inside the house.She attempted to put out her cigarette, went inside, and answered the telephone.However, Ms. Haskell failed to completely extinguish the cigarette, which resulted in a fire and extensive damage to the model home.The Apex Fire Department and an independent cause and origin expert found that the fire was caused by the cigarette.

On 16 September 2005, plaintiff filed a complaint against Comstock, its holding companies and related entities, and Ms. Haskell.²Plaintiff alleged, inter alia, that Ms. Haskell was negligent and as an employee of Comstock, acting within the scope of her employment, Comstock was liable for plaintiff's damages under a theory of respondeat superior and/or agency.

After completion of discovery, Comstock filed a motion for summary judgment on 15 January 2008, claiming that Ms. Haskell's negligence occurred outside the scope of her employment and thus Comstock was not liable pursuant to the doctrine of respondeat superior.On 16 January 2005, plaintiff filed a partial motion for summary judgment as to the applicability of the doctrine of respondeat superior, asking the court to find that Ms. Haskell was acting within the scope of her employment as a matter of law.On 4 February 2008, the trial court granted plaintiff's motion for partial summary judgment, finding that Ms. Haskell was acting within the scope of her employment when the negligent act occurred and that as a result, her negligence should be imputed to Comstock under the doctrine of respondeat superior.

On 11 February 2008, the trial court granted summary judgment in favor of both plaintiff and Comstock against Ms. Haskell as to liability, finding Ms. Haskell's negligence was the cause of the fire and plaintiff's resulting damages.A judgment in the amount of $225,000.00 was entered against Ms. Haskell on plaintiff's claim as well as on Comstock's crossclaim against her.On 9 May 2008, Comstock Homes of North Carolina, L.L.C. entered into a consent judgment in the amount of $225,000.00, to be paid when all appeals are exhausted.Upon entry of the judgment, plaintiff agreed to dismiss without prejudice all claims against defendants, other than Comstock Homes of North Carolina, L.L.C. and Heidi Haskell.

On appeal, Comstock does not dispute that Ms. Haskell was negligent.The only issue on appeal is whether the 10 February 2008 grant of partial summary judgment for plaintiff on the issue of respondeat superior was proper.³

Analysis

Comstock argues that the trial court erred in granting plaintiff's motion for partial summary judgment and denying Comstock's motion for summary judgment.Comstock contends that summary judgment should have been awarded in its favor because as a matter of law Ms. Haskell was not acting within the course and scope of her employment when she negligently caused the fire, and therefore her liability should not have been imputed to Comstock under the doctrine of respondeat superior.

Summary judgment is appropriate if "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that any party is entitled to a judgment as a matter of law."N.C. Gen.Stat. § 1A-1,Rule 56(c)(2007).The standard of review from a grant or denial of summary judgment is de novo.Builders Mut. Ins. Co. v. North Main Constr., Ltd.,361 N.C. 85, 88, 637 S.E.2d 528, 530(2006).

I.The Doctrine of Respondeat Superior

In an action against the employer under a theory of respondeat superior, plaintiff must show:

"1. That the plaintiff was injured by the negligence of the alleged wrongdoer.["]

"2. That the relation of master and servant, employer and employee, or principal and agent, existed between the one sought to be charged and the alleged tort feasor.["]

"3. That the neglect or wrong of the servant, employee, or agent was done in the course of his employment or in the scope of his authority.["]

"4. That the servant, employee, or agent was engaged in the work of the master, employer, or principal, and was about the business of his superior, at the time of the injury.["]

"It is elementary law that the master is responsible for the negligence of his servant which results in injury to a third person when the servant is acting within the scope of his employment and about the master's business.It is equally elementary that the master is not responsible if the negligence of the servant which caused the injury occurred while the servant was engaged in some private matter of his own or outside the legitimate scope of his employment."

Van Landingham v. Sewing Machine Co.,207 N.C. 355, 357, 177 S.E. 126, 127(1934)(quotingMartin v. Bus Line,197 N.C. 720, 722, 150 S.E. 501, 502(1929)(citations omitted))."It is only when the relation of master and servant between the wrongdoer and his employer exists at the time and in respect to the very transaction out of which the injury arose that liability therefor attaches to the employer."Tomlinson v. Sharpe,226 N.C. 177, 179, 37 S.E.2d 498, 500(1946).

There is no dispute that Ms. Haskell was an employee of Comstock.The sole question presented to the trial court, and the only issue to be decided on appeal, is whether Ms. Haskell was acting within the scope of her employment and about her employer's business, as a matter of law, when the negligent act occurred.

II.Scope of Employment

Comstock argues that the act of smoking was in no way in furtherance of Ms. Haskell's duty to her employer as it was strictly for personal enjoyment.However, not every personal act takes an employee out of the scope of his/her employment."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."Parrott v. Kantor and Martin v. Kantor,216 N.C. 584, 589, 6 S.E.2d 40, 43(1939)(citation omitted; emphasis added).

We find that Ms. Haskell did not depart from her employer's business when she smoked the cigarette on the deck of the model home and negligently failed to extinguish it when going to answer the telephone.Ms. Haskell was required by her employer to remain on the premises of the model home unless she was showing a property to a potential customer.She did not deviate from that duty.Ms. Haskell was also required to answer the telephone when it rang.She put out the cigarette, perhaps hastily, in order to answer the ringing telephone.

In sum, the two key factors in this case which lead to Comstock's liability are: (1) Ms. Haskell was on the premises of her employer where she was required to be, able and willing to perform her duties; and (2) the negligence occurred when she went to perform one of those duties, answering the telephone.

Comstock relies heavily on Tomlinson v. Sharpe, the only North Carolina case that directly deals with an employer's liability when an employee negligently causes a fire while smoking a cigarette.In Tomlinson,the defendant's employees were driving a company truck when it broke down, blocking passage on the highway.Tomlinson,226 N.C. at 179, 37 S.E.2d at 500.The plaintiff's...