Opinion
CV-02-2162 (SJF)(VVP)
December 16, 2003
OPINION ORDER
I. Introduction
Defendant National Railroad Passenger Corp. ("Amtrak") has moved for summary judgment dismissing plaintiffs' complaint in its entirety. For the reasons stated below, the motion is GRANTED.
II. Background
A. Procedural History
On April 9, 2002, this matter was removed from the Supreme Court of New York, Kings County to this Court. On July 24, 2003, plaintiffs Hui Hwa So, Pyong Mun So, and Christina So ("plaintiffs") filed an amended complaint alleging personal injury, loss of consortium, and property damage due to Amtrak's negligence, (Compl, para. 3-16). In the event that this Court finds that the vehicle was driven without the owner's permission, the complaint also seeks an order that defendant Country-Wide Insurance Company ("Country-Wide") compensate Hui Hwa So for his injuries. (Id. para. 17-21). On September 10, 2003, Amtrak filed the instant motion for summary judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure. (Amtrak's Not. of Mot. for Summ. J.).
The facts are derived from Amtrak's statement of material facts pursuant to Local Rule 56.1 and the accompanying evidentiary material filed in support of the motion for summary judgment, as well as Country-Wide's statement of material facts and the accompanying evidentiary material filed in response to the motion. The facts are not in dispute except as noted.
On February 27, 2000, plaintiffs were involved in a motor vehicle accident with a vehicle owned by Amtrak and driven by Alex D. Sanchez ("Sanchez"), an Amtrak employee at the time. Sanchez had arrived at Amtrak's Sunnyside Yard facility at 6:45 pm, although his work shift did not begin until 8:00 pm. Realizing that he had left his Amtrak-issued radio at home, Sanchez drove an Amtrak vehicle home to retrieve his radio, which was necessary to perform his work. At approximately 7:05 pm, while returning to the Sunnyside Yard, Sanchez struck the plaintiffs' vehicle.
According to David Zwolinski, Acting Supervisor at the Sunnyside Yard facility, Sanchez did not have permission or authorization to use the Amtrak vehicle at the time of the incident. (Amtrak's Rule 56.1 Statement, Exh. C). Amtrak also submitted internal documents to support its claim of unauthorized use: a written statement from Sanchez, an incident report, a motor vehicle accident report, a letter informing Sanchez to appear for a investigation hearing, and Sanchez's waiver of right to challenge the disciplinary charges, (Id. Exhs. B, D, E, F, G). Amtrak also maintains that Sanchez was acting outside the scope of his employment.
III. Analysis
A. Summary Judgment Standard
Summary judgment should not be granted unless "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 the moving party is entitled to judgment as a matter of law," Fed.R.Civ.P. 56(c). A fact is material "if it might affect the outcome of the suit under the governing law." Holtz v. Rockefeller Co., 258 F.3d 62, 69 (2d Cir. 2001). An issue of fact is genuine only if a jury could reasonably find in favor of the nonmoving party based on that fact. See id. The moving party bears the initial burden of establishing the absence of any genuine issue of material fact, after which the burden shifts to the nonmoving party to establish the existence of a factual question that must be resolved at trial. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 256, 91 L.Ed.2d 202, 106 S.Ct. 2505 (1986). The trial court is required to construe the evidence in the light most favorable to the nonmoving party, and draw all reasonable inferences in its favor. See id. at 252; Cifarelli v. Vill, of Babylon, 93 F.3d 47, 51 (2d Cir. 1996).
B. Permissive Use and Scope of Employment
Under section 388 of the New York Vehicle and Traffic Law, a vehicle's owner is liable for the negligence of one who operates the vehicle with the owner's express or implied consent. See N.Y. VEH. TRAF. LAW § 388(1) (McKinney 1996). A presumption that the vehicle was operated with the owner's permission continues unless and until it is rebutted by "substantial evidence" to the contrary. See Horvath v. Lindenhurst Auto Salvage, 104 F.3d 540, 542 (2d Cir. 1997).
New York Vehicle and Traffic Law § 388(1) states in pertinent part:
Every owner of a vehicle used or operated in this state shall be liable and responsible for death or injuries to person or property resulting from negligence in the use or operation of such vehicle, in the business of such owner or otherwise, by any person using or operating the same with the permission, express or implied, of such owner. N.Y. VEH. TRAP. LAW § 388(1) (McKinney 1996).
Under the doctrine of respondeat superior, an employer is liable for the negligence of an employee committed while the employee is acting in the scope of his employment. See Cusanelli v. Klaver, 542 F. Supp. 677, 679 (E.D.N.Y. 1982); Lundberg v. State of New York, 25 N.Y.2d 467, 470 (1969). According to New York law, "an employer is only liable for the actions of an employee where the employee was engaged in the furtherance of the employer's business and the employer was, or could have been, exercising some control, directly or indirectly, over the employee's activities." Madmood v. City of New York, No. 01-5899, 2003 U.S. Dist. LEXIS 7745, at *8 (May 8, 2003 S.D.N.Y.); see also Turk v. McCarthy, 661 F. Supp. 1526, 1535 (E.D.N.Y. 1987). Ordinarily, an employee driving to and from work is not acting in the scope of employment because the element of control is absent. See Lundberg, 25 N.Y.2d at 471.
In a handwritten statement, Sanchez states, "Knowing that I needed my radio to perform my job duties, I took the pick-up to go pick up the radio." (Amtrak's Rule 56.1 Statement, Exh. B). This statement fails to offer any insight on the issue of permission, either express or implied.
However, the Declaration of David Zwolinski, the Acting Assistant Supervisor at the Sunnyside Yard facility on the date of the accident, (Id. Exh. C), states, "prior to the beginning of his shift, Mr. Sanchez took an Amtrak pickup truck and drove it off the premises without advising anyone, without requesting or receiving my permission, and without obtaining the authorization of anyone at Amtrak[.]" (Id.). Zwolinski's sworn statement is evidence that the vehicle was driven without Amtrak's permission and exercise of control.
Several internal documents also support Amtrak's claim of unauthorized use. The Amtrak Incident Report describes the accident as involving an "unauthorized Amtrak vehicle" (Id. Exh. D); the Amtrak Motor Vehicle Report notes that the "vehicle was towed from scene before Amtrak's first knowledge" and that the trip was not authorized or made within established working hours (Id. Exh. E); and Amtrak's written request that Sanchez appear for a formal investigation specifies that he "used Amtrak vehicle No. G 63-29803 without authorization. . . ." (Id. Exh. F). Lastly, Amtrak provided a signed document from Sanchez waiving his right to a formal investigation and accepting internal discipline. (Id. Exh. G).
Country-Wide argues that the aforementioned evidence is self-serving, citing Mandelbaum v. United States, 251 F.2d 748, 751 (2d Cir. 1958) (applying New York law). However, the driver inMandelbaum received permission to operate a United States Army truck to and from Fort Tilden, and was doing so when the truck collided with plaintiff's horse-drawn wagon. See id. at 749-50. Here, there is no evidence that Sanchez had permission, express or implied. In fact, the record shows that Amtrak punished Sanchez by assessing restitution of $17,600 (the cost of the vehicle's damage) payable over a five year period, declining to pay lost wages for injury-related absences, and denying the submission of any claim except medical bills, (Amtrak's Rule 56.1 Statement, Exh. B).
The evidence presented by Amtrak is credible and sufficient to overcome the presumption of permissive use.
"Once the presumption is rebutted, it becomes `incumbent upon the parties opposing the motion to come forward with evidence, in admissible form, to demonstrate the existence of a question of fact.'" Murdza v. Zimmerman, No. 98-0040E(F), 2000 U.S. Dist. LEXIS 18768, at *10 (W.D.N.Y. Dec. 5, 2000) (quoting Guerrieri v. Gray, 610 N.Y.S.2d 301, 302 (2d Dep't 1994)). Contrary to Country-Wide's arguments, Amtrak's decision to retain Sanchez as an employee, its failure to report the vehicle as missing, and the fact that the formal investigation was commenced weeks after the incident are not sufficient to give rise to an inference of permissive use.
In Allstate Indem. Co. v. Nelson, 728 N.Y.S.2d 82 (2d Dep't 2001), the New York Appellate Division held that the presumption of consent was rebutted as a matter of law where the record contained "uncontradicted evidence that the . . . driver did not have express permission to operate the motor vehicle . . . and there was no competent evidence from which permission or authority could be inferrred.Id. at 83 (internal citations omitted). Country-Wide has not offered any admissible evidence that Sanchez had express or implied authority to operate the vehicle.
As to whether Sanchez' conduct was within the scope of employment, Country-Wide emphasizes that the purpose of Sanchez' trip was to retrieve Amtrak property necessary to perform his job. (Country-Wide's Mem. of Law in Opp'n to Amtrak's Mot. for Summ. J. at 7). However, Amtrak had no control over Sanchez' conduct, particularly since the accident took place at 7:05 pm, fifty-five (55) minutes before his 8:00 pm shift began.
IV. Conclusion
Country-Wide's contention that Amtrak is vicariously liable for Sanchez's actions under the doctrine of respondeat superior is without merit. Country-Wide has failed to raise a question of fact as to whether Sanchez had the Amtrak's authority to operate the vehicle. Further, the actions of Sanchez were outside the scope of his employment, and not under Amtrak's exercise of control or permission. Accordingly, summary judgment is GRANTED in defendants' favor and this case is dismissed in its entirety. The Clerk of Court is directed to close this case.
IT IS SO ORDERED