Opinion
No. CV 08-5021551S
May 27, 2010
MEMORANDUM OF DECISION ON LIFETIME SOLUTIONS LLC MOTION FOR SUMMARY JUDGMENT
Before the Court is a motion for summary judgment. The complaint lies in three counts and arises out of an automobile accident in which the plaintiff alleges to have suffered injuries. The first count is against the defendant Corby and states on June 1, 2008 on Maple Avenue in Old Saybrook she turned her vehicle to enter a private driveway and in so doing struck the motorcycle the plaintiff was operating. Various allegations of negligence are made against Corby, paragraph 5 of the first count alleges that at the time of the accident Corby was entering the driveway to "service a client of her employer" and was "acting as an agent, servant and or employee of Lifetime Solutions LLC. Paragraph 6 goes on to allege that at the time was a company providing homecare services to shoreline towns "through various personal care assistants including the defendant Paula Corby."
The second count asserts "vicarious liability against Lifetime Solutions LLC" and incorporates the allegations of the first count.
The forth count incorporates the fourteen paragraphs of the second count and advances a loss of consortium claim against lifetime solutions by the plaintiff's wife.
The defendant Lifetime Solutions has now filed a motion for summary judgment claiming Corby "was not acting as the agent servant or employee of Lifetime Solutions at the time of the accident." The Court will first set forth the factual support for the motion and then refer to the factual basis for the opposition to it. In support of its motion this defendant submitted the affidavit of the president of Lifetime Solutions and portions of the Corby deposition. The affidavit of Ms. Faris the president of the company, in relevant part states the following:
4. That at all relevant times herein, Paula Corby was employed by Lifetime Solutions, LLC as a homemaker;
5. That Paula Corby's job description included, among other things, performing errands such as shopping, dry cleaning, banking, etc. for the clients of Lifetime Solutions, LLC;
6. That Paula Corby's job description included, among other things, transporting clients to medical and other appointments;
7. That the qualifications for a homemaker included, among other things a valid Connecticut driver's license, automobile, and proof of insurance;
8. That on June 9, 2008, Paula Corby was to provide homemaker services to a client of Lifetime Solutions, LLC at 120 Maple Avenue, Old Saybrook, Connecticut;
9. That Paula Corby was to commence work at 9:30 a.m.;
10. That Paula Corby was to replace another home health aide who was working with the client at 9:30 a.m.;
11. That Paula Corby commenced her workday at the time that she started to provide services to the client;
12. That Paula Corby was not paid for her time driving to the client's home;
13. That Paula Corby would be paid for her time driving from one client's house to another client's house during the work day;
14. That Paula Corby would not be paid for her time driving home after providing services to the last client of the day.
The deposition of Ms. Corby indicates that on the date of the accident she was living in Niantic. She was supposed to be at the home of a client of Lifetime Solutions at 9 a.m. and the accident happened as she was turning into the client's driveway. She would obtain by mail a schedule from her employer, Lifetime Solutions, the week she was to perform her services. After the accident she was taken to the emergency room but did not fill out a worksheet for that day, because she said that: "There was no work done that day." She received no compensation for the day of the accident. Worksheets would have to be turned in for Corby to receive compensation, she described herself as a per diem worker but had to keep track of her hours.
She further testified that her workday started when she got to the home of a client and started to provide care. Ms. Corby said she was not compensated for the time it took her to get to a client's house from her home nor was she compensated for the time spent getting back to her house. During the day she was compensated for transporting a client for errands.
Lifetime Solutions gave Corby no instructions as to the manner in which she should operate her vehicle. On the way to the Maple Avenue address where the client lived whom she was servicing the day of the accident she was asked if she ever stopped on the way to pick up things for this client. She said she had not — "at this job I had never done this." She also said she had never done this on the way to any other job. She never went to the company's main office prior to going to a client's house.
One aspect of the deposition is somewhat confusing. At one point Corby apparently said she was paid for one hour for the day of the accident. She then said she probably "misanswered" — "I am sure. I am pretty sure that I was not paid."
The defendant has offered, in opposition to the motion various materials. A portion of Mrs. Farris's deposition is attached. She stated that it was expected that employees would act professionally and arrive at and leave client's homes in a safe way, not damaging their property. It was also brought out that when an errand is run for the client the client is sometimes in the car. Training is given to employees on safe driving. If clients were dissatisfied with the conduct of a service provider there was a manager they could contact at Lifetime Solutions.
Portions of the deposition of a Paula Dobritz was also attached to the plaintiff's opposition. At the date of the accident she was an administrator and direct supervisor of Ms. Corby. She stated that an important function of employees was their ability to drive so as to get to homes of clients and for some clients run errands or make appointments. If a person is a "state client" the employee is not supposed to pick up prescriptions but it is done sometimes. Dobritz also said it was expected employees would act professionally and this encompassed how they operated their cars when entering the client's property.
Kathleen Levine was also deposed; at the time of the accident she was a client service manager for the company. She said it is important that prospective employees have clean driving records. The employee must arrive at client's houses on time and have a vehicle. If they indicate they do not want to transport client, the employee is placed at a job not requiring this. If they are to drive, an insurance certificate must be presented. Employees run errands for clients and sometimes take them to appointments. She also confirmed that driver training and safety tips are provided to employees. It is the company's wish that cars be maintained in safe condition. Corby's working hours were from 9 a.m. to 5 p.m. and she worked six to eight hours a day. Ms. Levine repeated that Corby was expected to get to her job assignment the day of the accident in a safe, reliable vehicle and be in a position to run errands if necessary.
In a reply to the objection to the motion for summary judgment two further affidavits were submitted from a Paula Dobritz who said she examined the records of Lifetime Solutions and they indicate that during the week in which the accident occurred Corby was available for work from 8 a.m. to 4:30 p.m. and was to be at the client's home to which she was driving at 9:30 a.m. An affidavit from another employee of the company said she began work at 8 a.m. at this address and was to be replaced by Corby at 9:30 a.m.
2.
The standards to be applied in deciding a motion for summary judgment are well known. If a disputed issue of fact exists the motion should not be granted because a litigant has a constitutional right to a jury trial. If no such issue exists and the motion is otherwise legally justified it should be granted to avoid imposing on parties the burden and expense of litigation.
3.
The court will try to discuss the foregoing facts as they relate to the applicable legal principles necessary to decide the motion.
As indicated the defendant company argues that Corby was not acting as the employee or agent of the defendant at the time of the accident, thus Lifetime Solutions cannot be held vicariously liable for this accident. Several cases are cited.
Brown v. Housing Authority, 23 Conn.App. 624, 628 (1990), is cited for the general proposition that: "A master is liable only for those torts of his servant which are done with a view of furthering his master's business within the field of this employment — for those which have for their purpose the execution of the master's orders or the doing of the work assigned to him to do." The theory behind the justification for vicarious liability is set forth in footnote 16 of Jagger v. Mohawk Mountain Ski Area, Inc., 269 Conn. 672, 692-93 (2004), and is based on control or the right to control the employee's conduct at the relevant time in question. In the Jagger footnote the court said:
. . . vicarious liability is premised upon "the general common law notion that one who is in a position to exercise some general control over the situation must exercise it or bear the loss." W. Prosser W. Keeton, supra § 69. p. 500. Put differently, a fundamental premise underlying the theory of vicarious liability is that an employer exerts control, fictional or not, over an employee acting within the scope of employment, and therefore may be held responsible for the wrongs of that employee. Id. ("[the employer] has a more or less fictitious 'control' over the behavior of the [employee and] . . . has 'set the whole thing in motion,' and is therefore responsible for what has happened"); 1 Restatement (Second) Agency, supra § 2, p. 12 ("[1] A master is a principal who employs an agent to perform service in his affairs and who controls or has the right to control the physical conduct of the other in the performance of the service. [2] A servant is an agent employed by a master to perform service in his affairs who physical conduct in the performance of the service is controlled or is subject to the right to control by the master.") It is as a result of this control that the theory of vicarious liability allows employers to be subject to liability for the physical harm caused by the negligent conduct of their employees acting within the scope of employment. 1 Restatement (Second), Agency, supra, § 243, p. 536.
The defendant's argument is that the plaintiff was required to have a car, have insurance and had to drive from her home to the client's house but "it cannot be said that the defendant Lifetime Solutions, controlled how she would operate her motor vehicle."
Descending from the general to the specific the case of Hamm v. U.S., 483 F.3d 135 CEA 2, 2007), is cited by the defendant in a reply brief. There a driver was injured in New York when a soldier drove his vehicle into her vehicle. He was driving to a Reserve Center for a drill. Suit was brought under the Federal Tort Claims Act and the court applied New York law. Hamm quoted New York case law which seems to apply the same principles and requirements of control for the imposition of vicarious liability as set forth in the just quoted Jagger footnote. Hamm dismissed the suit based on its analysis of a New York case, Lundberg v. State, 255 N.E.2d 177 (N.Y., 1969). Hamm quoted Lundberg to the effect that it makes clear that "as a general rule, an employee driving to and from work is not acting in the scope of his employment" because "although such activity is work motivated, the element of control is lacking," Lundberig at 255 N.E.2d page 179.
The defendant also cites two trial court decisions Rubenstein v. Oxford Health Plan, 31 Conn. L. Rptr. 279 (Gallagher, J., 2002), and Kornegay v. Babcock, 44 Conn. L. Rptr. 354 (Radcliffe, J., 2007). Both cases involved motor vehicle accidents where an employee who was leaving work collided with the plaintiff's car who then sued the employer. Both cases dismissed suits against the employer based on the principle as stated in Kornegay that: "In order for the principal of vicarious liability to apply, or for respondeat superior to be applicable, it must be the affairs of the principal, and not solely the affairs of the agent, which are being furthered," id. page 355. Going to or from home to a fixed work station or leaving that location to go home cannot be said that the affairs of the principle are being advanced.
But Lundberg must be examined more closely and, to return to Lundberg, on which Hamm relies, the state employee who fatally injured the other driver was assigned to a work project 80 miles from his home in Buffalo. During the week he stayed in a hotel near the work site but on Fridays he would drive home to Buffalo to spend the weekend. The accident happened when the employee was driving back to the job site on Monday. The suit against the state was dismissed based on the principle which Hamm quoted to the effect that vicarious liability had not been established because as noted the employee's activity "is work motivated (but) the element of control is lacking." But then the Lundberg court went on to say: "An exception to this rule is that an employee who uses his car in furtherance of his work is acting in the scope of his employment while driving home from his last business appointment. Since such a person is working, and is under his employer's control, from the time he leaves the house in the morning until he returns at night," 255 N.E.2d at page 179, citing Shauntz v. Schwegler Bros., 259 App.Div. 198 (1940), with Rosenberg v. Syracuse Newspapers, 248 App.Div. 313 (1936), cited as being contra.
The foregoing states the general law in this area. Thus in 8 Am.Jur.2d "Automobiles and Highway Traffic" there is a section entitled § 686 "To work and from work." There it says, "Even when driving a vehicle furnished by the employer, the employee is generally not in the course and scope of employment, for the purposes of respondeat superior liability, while going to and returning from work unless he or she is directed by his or her employer or is furthering the employer's business . . ." But later in the section it says: "Where, however, the employee's duties are not to be performed at any particular central plant or office, but require travel on an indefinite route or area, the employee's services are usually deemed to start when he or she leaves for work, and the employee is considered in the employee's service until actually reaching home," id. at page 328.
Thus the case cited by the plaintiff, Murray v. Travelers Ins. Co., 601 NW.2d 661 (Wis. App., 1999), is not some aberration but states the apparently accepted law in this area. There the court held that where a physical therapist was traveling to a patient's home at the time an auto accident happened, she was acting in the scope of her employment for respondeat superior purposes although the employer health care service did not exercise control over the method or route of her travel. The court distinguished an earlier Wisconsin case, DeRuyter v. Wisconsin Electric Power Co., 546 NW.2d 534 (Ct.App., 1996), which held that where an employee works at a fixed place of employment and lives at his or her home "it is the business of the employee to present (him or herself) at the place of employment and the relation of master and servant does not exist while he (or she) is going between his (or her) home and (his or her) place of employment," id. page 540.
In Murray the court noted the employer hired the employee to travel to the patient's home to administer physical therapy. In this type of situation the court rejected what it called the control test of DeRuyter because there was no fixed employment location. The court noted that since the employee was involved in the accident while traveling from a job with another employer to a patient visit for a patient of the subject employer, this employer must be held subject to respondeat superior because the employee's duties "made travel necessary and she was at the accident location 'for no other purpose than to promote the employer's business,'" id. page 665. In Murray the caregiver company, Olsten, hired, Barrett, the employee involved with the anticipation that she would travel to Olsten's patients. Olsten created the necessity of travel. Barrett's sole purpose for being where she was at the time of the accident was job related," id. page 666. The court went on to state the obvious — "travel was essential for Barrett to carry out her duties," id.
Based on the law as the court understands it, this case at the very least presents a question of fact as to whether respondeat superior should apply to hold the defendant liable. The driver employee Corby received a schedule in the mail from Lifetime Solutions management on where she was to report for work and the hours of work. The job did require, on occasion, that she run errands for a client or take the client for appointments whether or not that occasion arose to the particular client here. Interestingly driver training or instruction was implemented — why is that? — for the obvious reason that a patient like the one relevant to this case could have a severe medical condition requiring the presence of a caregiver at a specific time according to a predetermined scheduled dictated by the employer. Additionally there might be a need to run errands or bring clients to appointments. These services which are provided by a company such as this are presumably made known to clients or prospective clients. Inculcating safe driving techniques to, for example, avoid accidents are directly related to advancing the company's interests and embellishing its competitive business model. So even applying the DeRuyter test there was a need for monitoring or at least trying to ensure good driving habits from the moment employees left home to report to a patient's residence.
For the foregoing reasons the motion for summary judgment is denied.