RONALD HARRIS VS. BERNARDO CHAVEZ-ECHEVERRY, Â(L-5071-14, ATLANTIC COUNTY AND STATEWIDE) ( 2017 )

NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
This opinion shall not "constitute precedent or be binding upon any court."
Although it is posted on the internet, this opinion is binding only on the
parties in the case and its use in other cases is limited. R. 1:36-3.
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-3134-16T1
RONALD HARRIS and
PATRICIA HARRIS, h/w,
Plaintiffs-Appellants,
v.
BERNARDO CHAVEZ-ECHEVERRY,
Defendant,
and
BOARDWALK ACURA, NJ-HAII,
INC., and GROUP 1 AUTOMOTIVE,
INC.,
Defendants-Respondents.
————————————————————————————————
Argued October 11, 2017 – Decided October 24, 2017
Before Judges Hoffman, Gilson and Mayer.
On appeal from Superior Court of New Jersey,
Law Division, Atlantic County, Docket No.
L-5071-14.
Richard A. Stoloff argued the cause for
appellants.
Gerald T. Ford argued the cause for
respondents (Landman Corsi Ballaine & Ford,
PC, attorneys; Mr. Ford, of counsel and on the
brief; Fay L. Szakal, on the brief).
PER CURIAM
By leave granted, plaintiffs Ronald and Patricia Harris1
appeal from a February 17, 2017 Law Division order granting summary
judgment in favor of defendants Boardwalk Acura, NJ-HAII, Inc. and
Group 1 Automotive, Inc. As genuine issues of material fact exist
in the record, we vacate the order granting defendants' motion and
remand for further proceedings.
I.
We view the factual record in the light most favorable to
plaintiff as the non-moving party. See Brill v. Guardian Life
Ins. Co. of Am., 142 N.J. 520, 540 (1995). This case arises from
an accident that occurred on August 23, 2012, when defendant
Bernardo Chavez-Echeverry, driving a dealership car, struck
plaintiff's motorcycle, causing him to sustain serious bodily
injury. At the time, defendants Boardwalk Acura, NJ-HAII, Inc.
and Group 1 Automotive, Inc. employed Chavez-Echeverry as a "lot
person." His duties included moving cars on the lot, taking out
trash, picking up and dropping off clients at their homes, and
putting gas in dealership vehicles.
1
For ease of reference, we refer to Ronald Harris individually
as plaintiff.
2 A-3134-16T1
Chavez-Echeverry testified that on the day of the accident,
he requested and received the keys to a dealership car in order
to fill it with gas. After he left the dealership, but before he
stopped for gas, he decided to go home because he forgot to lock
his house door. He did not inform anyone he was going home in the
dealership car and he knew it was against company policy to do so.
Chavez-Echeverry's home was five minutes from the dealership. The
accident occurred on his way home.
Chavez-Echeverry testified he would usually get gas at either
the station next to the dealership or the one near his home.
Chavez-Echeverry knew he was not permitted to do personal errands
while driving dealership cars, but he sometimes did anyway without
informing anyone. Chavez-Echeverry testified that when he took a
car to get gas he had to request the keys and tell someone why he
was taking the car.
Brian Broomell, the general manager of Boardwalk Acura and
Chavez-Echeverry's supervisor, said the gas station next to the
dealership was the only station authorized for filling vehicles.
Broomell also said Chavez-Echeverry could just go get keys to a
dealership car without asking permission; in addition, Chavez-
Echeverry was the only employee in charge of filling vehicles with
gas.
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Chavez-Echeverry's driving record as of July 2011 had two
unsafe operation convictions, one accident (on the same day as one
of the unsafe driving convictions), two unlicensed driver
convictions, and one operating while suspended or revoked
conviction. However, his license was in good standing on the date
of the accident. Between February and April 2012, defendants'
human resources (HR) department sent or received seven emails
concerning Chavez-Echeverry's job performance, including
insubordination problems and possible drinking on the job.
Broomell agreed that employing someone with two unsafe
operation convictions, within several months, would give him
"cause for concern" and that he "would want to know about it."
Broomell further admitted receiving information regarding Chavez-
Echeverry's driving before plaintiff's accident, as reflected in
this colloquy from his deposition:
Q: Did anybody ever tell you that they
thought he was potentially an unsafe
driver?
A: Yes.
Q: Who was that?
A: I don't recall.
Q: Can you tell me when?
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A: I think it is in one of the memos.2
Q: Okay. Was it before or after the
collision we're here for?
A: Before.
Q: Okay. And do you remember who it was
that told you that?
A: No.
Q: Do you remember why they said they
thought he was an unsafe driver before
the collision?
A: Repeat the question.
Q: Could you tell me why they . . . told you
they thought he was an unsafe driver
before the date of this accident?
A: They thought he was drinking on-the-job
at times.
The record does not reflect whether defendants took any steps to
investigate the reports of Chavez-Echeverry's on-the-job drinking,
even though the HR manager conceded such information "would give
[her] concern."
II.
In deciding a summary judgment motion on appeal, we "review
the trial court's grant of summary judgment de novo under the same
2
Broomell sent an email to HR on April 14, 2012, stating, "[Two]
people have told me today that Bernardo [Chavez-Echeverry] drinks
on the job."
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standard as the trial court" and accord "no special deference to
the legal determinations of the trial court." Templo Fuente De
Vida Corp. v. Nat'l Union Fire Ins. Co. of Pittsburgh, 224 N.J.
189, 199 (2016). Under this standard, we must grant summary
judgment "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 challenged and that the moving party is entitled to
a judgment or order as a matter of law." Ibid. (quoting R. 4:46-
2(c)).
"If there is no genuine issue of material fact, we must then
'decide whether the trial court correctly interpreted the law.'"
DepoLink Court Reporting & Litig. Support Servs. v. Rochman, 430
N.J. Super. 325, 333 (App. Div. 2013) (quoting Massachi v. AHL
Servs., Inc., 396 N.J. Super. 486, 494 (App. Div. 2007), certif.
denied, 195 N.J. 419 (2008), overruled in part on other grounds
by Wilson ex rel. Manzano v. City of Jersey City, 209 N.J. 558(2012)). "We review issues of law de novo and accord no deference
to the trial judge's conclusions on issues of law." Ibid.A.
We first address whether Chavez-Echeverry was acting within
the scope of his employment at the time of the accident. "Under
respondeat superior, an employer can be found liable for the
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negligence of an employee causing injuries to third parties, if,
at the time of the occurrence, the employee was acting within the
scope of his or her employment." Carter v. Reynolds, 175 N.J.
402, 408-09 (2003) (emphasis omitted). "To establish a master's
liability for the acts of his servant, a plaintiff must prove (1)
that a master-servant relationship existed and (2) that the
tortious act of the servant occurred within the scope of that
employment." Id. at 409. We consider conduct within the scope
of employment when "(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 . . . ." Restatement (Second) of
Agency § 228 (1958).
"Generally, an employee who is 'going to' or 'coming from'
his or her place of employment is not considered to be acting
within the scope of employment." Carter, supra, 175 N.J. at 412.
However, there is a "dual purpose" exception covering "cases in
which, at the time of the employee's negligence, he or she can be
said to be serving an interest of the employer along with a
personal interest." Id. at 414. "[W]here the instrumentality
being used by the servant is owned by the master, such use raises
a rebuttable presumption that the servant was acting within the
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scope of employment." Gilborges v. Wallace, 78 N.J. 342, 351-52
(1978).
Here, the parties do not dispute there was an employer-
employee relationship between defendants and Chavez-Echeverry
satisfying the first requirement of respondeat superior. The
parties do dispute whether the tortious conduct of Chavez-
Echeverry occurred within the scope of his employment.
Plaintiffs argue Chavez-Echeverry's conduct at the time of
the accident falls under the dual purpose exception and was
therefore within the scope of his employment, the second
requirement of respondeat superior. Chavez-Echeverry was enroute
to fill a dealership car with gas when he decided to stop at his
house to lock his door. The language of the Restatement supports
allowing the dual purpose exception in this case, stating the
employee's conduct must be "actuated, at least in part, by a
purpose to serve the master . . . ." Restatement (Second) of
Agency § 228(c) (1958) (emphasis added).
The parties dispute whether defendants permitted Chavez-
Echeverry to get gas at the station near his home. Viewing the
facts in the light most favorable to plaintiffs, a reasonable jury
could find Chavez-Echeverry had the dual purpose of filling the
dealership car with gas and going home to lock his door when the
accident occurred. Based on the record before it, the motion
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court ignored genuine issues of material fact and mistakenly
decided the issue of respondent superior as a matter of law.
B.
We next address whether defendants negligently hired or
retained Chavez-Echeverry. The related doctrines of negligent
hiring, supervision, and retention are distinct and broader forms
of liability than under the doctrine of respondeat superior. Di
Cosala v. Kay, 91 N.J. 159, 174 (1982); Lingar v. Live-In
Companions, Inc., 300 N.J. Super. 22, 29-30 (App. Div. 1997).
Significantly, these theories do not require that an employee's
tortious conduct occur within the scope of his or her employment.
Johnson v. Usdin Louis Co., 248 N.J. Super. 525, 528 (App. Div.),
certif. denied, 126 N.J. 386 (1991). Rather, the basis for
liability stems from the principle that "[a]n employer whose
employees are brought into contact with members of the public in
the course of their employment is responsible for exercising a
duty of reasonable care in the selection or retention of its
employees." Di Cosala, supra, 91 N.J. at 170-71; Lingar, supra,
300 N.J. Super. at 30.
Under a negligent retention theory,
the question presented is whether the
employer, knowing of its employee's unfitness,
incompetence or dangerous attributes when it
hired or retained its employee, should have
reasonably foreseen the likelihood that the
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employee through his employment would come
into contact with members of the public, such
as plaintiff, under circumstances that would
create a risk of danger to such persons
because of the employee's qualities.
[Di Cosala, supra, 91 N.J. at 177.]
There are two general showings that a plaintiff must make to
impose liability under these theories. First, the employer must
have known or had reason to know "of the employee's dangerous
characteristics and the reasonable foreseeability of harm to other
persons as a result of these qualities." Ibid.; Johnson, supra,
248 N.J. Super. at 528. Second, a plaintiff must show proximate
causation, meaning the injury to the particular plaintiff was
foreseeable by the employer. Ibid. A plaintiff will recover only
when a duty owed to the injured third-party can be established in
law and the breach of said duty can be proven in fact. Johnson,
supra, 248 N.J. Super. at 529.
Whether a duty exists is a matter of law, Kernan v. One
Washington Park Urban Renewal Assocs., 154 N.J. 437, 445 (1998),
that poses "a question of fairness" involving "a weighing of the
relationship of the parties, the nature of the risk, and the public
interest in the proposed solution." Kelly v. Gwinnell, 96 N.J.
538, 544 (1984) (quoting Goldberg v. Hous. Auth. of Newark, 38
N.J. 578, 583 (1962)). In reviewing a trial court's determination
that a duty does or does not arise in a particular situation, we
10 A-3134-16T1
are not bound by the court's interpretation of the law or the
court's view of the legal consequences of the alleged facts.
Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366,
378 (1995).
The duty analysis is "rather complex." J.S. v. R.T.H., 155
N.J. 330, 337 (1998). "[I]n its determination whether to impose
a duty, [a court] must also consider the scope or boundaries of
that duty." Id. at 339. Moreover, the court must recognize "the
more fundamental question whether plaintiff's interests are
entitled to legal protection against defendant's conduct." Id.
at 338 (quoting Weinberg v. Dinger, 106 N.J. 469, 484-85 (1987)).
However, underlying factual determinations are necessary to make
that assessment, including "the relationships between and among
the parties, . . . an assessment of the defendant's 'responsibility
for conditions creating the risk of harm,' and an analysis of
whether the defendant had sufficient control, opportunity, and
ability to have avoided the risk of harm." Id. at 338-39 (quoting
Carvalho v. Toll Bros. & Developers, 143 N.J. 565, 574 (1996)).
Here, the question is whether it is fair to impose a duty on
defendants to protect third parties such as plaintiff. Defendants'
supervising personnel acknowledged the desirability of not
allowing employees with unsafe driving records or other problems
to drive dealership vehicles on public roads. Defendants provided
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Chavez-Echeverry with access to a dealership car and permission
to drive on public roads. Defendants' ability to access Chavez-
Echeverry's driving record and personnel file provided them with
the means to confirm whether it was safe and reasonable to allow
Chavez-Echeverry to drive dealership vehicles. Under the facts
and circumstances presented here, we conclude it is fair to impose
a duty on defendants to protect third parties such as plaintiff
from employees who are unsafe drivers. Therefore we conclude
defendants owed a duty to take reasonable steps to ensure Chavez-
Echeverry was a safe driver.
Defendants arguably breached this duty because of Chavez-
Echeverry's poor driving record, and reports of his
insubordination and on-the-job drinking. A jury could reasonably
find that defendants breached their duty of care by giving Chavez-
Echeverry access to dealership cars, and that this breach was a
proximate cause of the accident under review. Viewing the facts
in the light most favorable to plaintiff, a reasonable jury could
find defendants knew or should have known of Chavez-Echeverry's
poor driving record, and reports of his insubordination and on-
the-job drinking, which should have alerted defendants to the
compelling need to promptly review and investigate whether they
should continue to allow Chavez-Echeverry to drive dealership
vehicles. Viewing the facts in the light most favorable to
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plaintiffs, a reasonable jury could find it was foreseeable that
Chavez-Echeverry would take an unauthorized trip in a dealership
car causing a motor vehicle accident injuring a third party, such
as plaintiff, therefore establishing proximate cause. The trial
court erred in finding, as a matter of law, that defendants
breached no duty to plaintiff regarding Chavez-Echeverry's unsafe
driving.
Reversed and remanded. We do not retain jurisdiction.
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