IN THE SUPERIOR COURT OF THE STATE OF DELAWARE IN AND FOR NEW CASTLE COUNTY CHARLES R. LITCHFORD and ) PATRICIA LITCHFORD, ) ) Plaintiffs ) v. ) C.A. No. 06C-02-243MJB ) MICHAEL JOHNSON; DP, INC.; ) DP 4421, LLC; DOMINO S PIZZA, ) INC., and DOMINO S PIZZA LLC., ) ) Defendants ) ) Submitted: August 16, 2007 Decided: November 27, 2007 OPINION AND ORDER BRADY, J.
INTRODUCTION This is a negligence action filed by Charles Litchford ( Litchford ) on February 23, 2006. 1 The complaint alleges that Litchford sustained personal injuries in an automobile collision between himself and defendant Michael Johnson ( Johnson ) on March 30, 2004. Litchford has named as codefendants Johnson s former employer: DP, Inc.; DP 4421, LLC; Domino s Pizza, Inc.; and Domino s Pizza, LLC (collectively D.P. ). On June 25, 2007 defendant D.P. filed the instant Motion for Summary Judgment. Litchford filed a response in opposition to the motion on July 26, 2007. D.P. filed a reply brief on August 3, 2007. This Court held a hearing on the motion on August 16, 2007. For the reasons that follow, D.P. s Motion for Summary Judgment is DENIED. FACTUAL BACKGROUND The record before the Court reflects the following, uncontroverted facts. On the date in question, Johnson was a D.P. employee. He began his employment with D.P. as a delivery driver sometime in the late 1990s. By June of 2000, Johnson had received multiple moving violations, and was 1 Litchford s wife, Patricia, is also a party to the suit. She has filed a loss of consortium claim. 1
asked to sign a form entitled Agreement Not to Drive. As its name suggests, the Agreement prohibited Johnson from operating a motor vehicle in furtherance of D.P. s business. On or about the time Johnson executed the Agreement, he accepted a management position at one of D.P s Doverarea locations, a position which did not require Johnson to make deliveries for D.P. Johnson left that position in 2001 for other employment, but he returned to D.P. sometime in 2003. He did not execute a new Agreement Not to Drive when he was re-hired, but he and his supervisors understood that the previous agreement was still in effect. When Johnson returned to D.P., he worked as a floating manager, periodically working at different D.P. locations in northern Delaware on an as-needed basis. As a floater, Johnson would be assigned to stores that were not running efficiently and institute policies and procedures to increase their profitability and productivity. Johnson worked in that manner until he was promoted to a permanent position as manager at D.P. s Lancaster Pike location in Wilmington. Johnson started to work at the Lancaster Pike location sometime in March 2004, only a day or two before the collision at issue in this dispute. As both a floating and fixed manager, Johnson was authorized or required to make bank deposits and to purchase necessary supplies for the 2
various D.P. locations under his management. The common practice in these circumstances was to purchase items with his own money, submit the receipts to his supervisor, and reimburse himself with cash from the register. Johnson used his personal vehicle to pick up and deliver supplies and to make bank deposits. Johnson testified that he was permitted to perform such errands so long as he wasn t on the clock. 2 On March 30, 2004, Johnson was scheduled to work at D.P. s Lancaster Pike location. Johnson was supposed to start work at either 4 p.m. or 5 p.m. 3 At 1:48 p.m. Johnson purchased 15 items for D.P. at a Wal-Mart near his home in Dover, an approximately 45-minute to one-hour drive from D.P. s Lancaster Pike location. The supplies cost $66.37. Johnson testified that he cannot recall what he did after purchasing these items, but he did not proceed directly to work. At approximately 4:15 p.m. he was involved in the accident with Litchford. He was about half a mile from work at the time of the accident. Pursuant to D.P. s procedures, Johnson submitted the Wal-Mart receipt to his supervisor, Chris Saint, and took $66.37 from the cash register. Saint approved the purchase and subsequent reimbursement. During his 2 Johnson was a salaried employee. Although he was required to clock-in at least 40-hours per week, he was not paid by the hour. He testified that salaried managers are expected to work more than 40 hours per week and were not compensated for any extra time that he worked. 3 As the manager, Johnson s schedule was somewhat flexible, and he cannot recall what time he was to go on duty that date. 3
deposition, Saint was asked whether or not Johnson was cautioned about using his personal vehicle to purchase and deliver these supplies. Saint responded that Johnson was on his own time. He can do what he wants. 4 STANDARD OF REVIEW The standard for granting summary judgment is high. 5 Summary judgment may be granted where the record shows 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. 6 In determining whether there is a genuine issue of material fact, the evidence must be viewed in a light most favorable to the non-moving party. 7 When taking all of the facts in a light most favorable to the non-moving party, if there remains a genuine issue of material fact requiring trial, summary judgment may not be granted. 8 Nor will summary judgment be granted if, upon an examination of all the facts, it seems desirable to inquire thoroughly into them in order to clarify the application of the law to the circumstance. 9 4 Pl. s Resp. Ex. C, p. 38. 5 Mumford & Miller Concrete, Inc. v. Burns, 682 A.2d 627 (Del. 1996). 6 Super. Ct. Civ. R. 56(c). 7 Muggleworth v. Fierro, 877 A.2d 81, 83-84 (Del. Super. Ct. 2005). 8 Gutridge v. Iffland, 889 A.2d 283 (Del. 2005). 9 Ebersole v. Lowengrub, 180 A.2d 467, 470 (Del. 1962). 4
APPLICABLE LAW An employer is liable for the negligence of its employee if the employee s actions are within the scope of employment. 10 Ordinarily, an employee s commute to and from the work premises serves a private purpose of the employee, and is not in the course and scope of his or her employment. 11 Therefore, an employer is not liable for a tort committed while an employee drives to and from their place of employment. 12 An exception to this premises rule occurs if there is a dual purpose in the employee s activity. Under the dual purpose exception, an employer can be liable for torts committed by the employee where the employee is combining his own business with that of his master, or attending to both at substantially the same time. 13 In applying the dual purpose exception, Delaware follows the test set forth in Restatement, Second, Agency 228: 14 1) Conduct of a servant is within the scope of employment if, but only if: (a) It is of a kind he is employed to perform; (b) it occurs substantially within the authorized time and space limits; (c) it is actuated, at least in part, by a purpose to serve the master. 10 Clough v. Comly, 2006 WL 2560119 at *3 (Del.Super. Aug. 14, 2006) aff d Clough v. Interline Brands, Inc. 929 A.2d 783 (Del. 2007). 11 Id. 12 Id. 13 Wilson v. Joma, 537 A.2d 187, 189 (Del. 1988) quoting Gipson v. Davis Realty Co., 215 Cal.App.2d 190 (1963). 14 Id. 5
2) Conduct of a servant is not within the scope of employment if it is different in kind from that authorized, far beyond the authorized time or space limits, or too little actuated by a purpose to serve the master. Whether or not an employee s tortious act occurred within the course and scope of employment is a question of fact, which should be decided by a jury unless it is clear that no purpose of the employer could have been served. 15 CONTENTIONS OF THE PARTIES D.P. argues that the premises rule prevents plaintiff from recovering against D.P. for any damages negligently caused by Johnson. D.P. asserts that the dual purpose exception applies only to situations where the employee is working under the employer s control from the time he or she leaves the house until the time he or she returns home. 16 D.P. asserts that Johnson was not operating his car in furtherance of his work, but, rather, was simply on his way to work when the accident occurred. 17 Further, D.P. argues that the dual purpose exception applies only to conduct that occurs within authorized time and space limits. Since Johnson was 15 Id. at 189; Coates v. Murphy, 270 A.2d 527, 528 (Del. 1970); Vandiest v. Santiago, 2004 WL 3030014 at *4 (Del. Super. Dec. 9, 2004). 16 Def. s Mot. at 5. 17 Id. 6
prohibited from operating a vehicle in furtherance of D.P. s business, D.P. argues that his conduct was not within the limits authorized by D.P. Lastly, D.P. submits that Johnson has admitted that his sole purpose in driving that day was to go to work, not to deliver supplies. D.P. has submitted an affidavit that states, among other things, that Johnson would not have been driving to the Lancaster Pike location if his shift would have been cancelled on the day in question. 18 Plaintiff asserts that summary judgment is not appropriate because an issue of fact exists as to whether Johnson s conduct falls within the dual purpose exception to the premises rule. 19 Plaintiff contends that Johnson was both transporting himself to work and delivering supplies to D.P. Since the trip conferred some benefit upon D.P., plaintiff contends that summary judgment is precluded under controlling Delaware case law. ANALYSIS In determining whether summary judgment is appropriate in this case, the Court looks to prior cases in the Delaware Courts that consider the legal issues before the Court. 18 Def. s Reply Br. Ex. 2. 19 Pl. s Resp. at 5. 7
In Wilson v. Joma 20, an employee of the defendant, an automobile service station, left the premises to pick up lunch sandwiches for himself and two of his co-workers. 21 The employee was permitted to spend his lunch break in whatever manner he saw fit, so his trip to and from the sandwich shop was not a job responsibility, and he brought the sandwiches back as a courtesy to his fellow co-workers. This was apparently a practice that developed because most employees usually were not permitted to leave the station during business hours. 22 On the employee s return to the station, he collided with the plaintiff, who then brought suit against the defendant service station. The Superior Court granted summary judgment in defendant s favor, holding that the employee was not acting within the course and scope of his employment. On appeal, the Supreme Court held as follows: We recognize that picking up sandwiches was not part of DeMaio s official duties, nor was it necessarily a formal policy at Joma for an employee to do so. It was, however, Joma s policy to minimize the number of employees leaving the premises during business hours so that customer service would not be interrupted. A jury might properly find the dual purpose rule applicable here. The record can be read as Joma having a firm policy that all employees must eat lunch on the job; such requirement was for the convenience of customers, and thus served Joma s interest; and DeMaio was serving that 20 Wilson v. Joma, Inc., 537 A.2d 187 (Del. 1988). 21 Joma at 188. 22 Id. 8
purpose in picking up lunch not only for himself but his co-workers. 23 (Emphasis added.) Accordingly, the Court reversed the grant of summary judgment, because the scope-of-employment issue should have been resolved by a jury. 24 D.P. contends this case is more analogous to Clough v. Comly. 25 In Clough, the employee, a sales representative, was required to travel to various locations throughout northern Delaware. On the night at issue in the dispute, the employee was involved in an collision on his way home after completing his final sales call of the day. 26 The plaintiff brought suit against the employee and his employer. The employer moved for summary judgment. Relying on the premises rule, this Court granted the employer s motion, finding that the employee was merely driving home after concluding his final appointment of the day. Thus, the purpose of his travel was not in furtherance of Moving Defendant s business. 27 On appeal, the plaintiff argued that the trial court s decision contradicted the dual purpose rule as set forth in Joma. 28 The Supreme Court disagreed and affirmed the decision, noting that there is nothing in 23 Id. at 189. 24 Id. 25 Clough v. Comly, 2006 WL 2560119 (Del.Super. Aug. 14, 2006) aff d Clough v. Interline Brands, Inc. 929 A.2d 783 (Del. 2007). 26 Id. at *2. 27 Id. at *3. 28 Clough v. Interline Brands, Inc. 929 A.2d 783 (Del. 2007). 9
the record to suggest that Comly was doing anything other than driving home. 29 In the instant case, D.P. argues that, as in Clough, Johnson was furthering no purpose of his employer and was merely driving himself to work. Under the facts as presented in this case, however, a jury might find otherwise. Whether the accident occurred while furthering no interest of his employer is a disputed issue of material fact that, under Joma, must be resolved by a jury. Similarly, D.P. s conclusion that the prohibition against driving removes this case from the dual purpose exception s authorized time and space limits is also a question of material fact. Countering D.P. s contention that there was a continuing, explicit prohibition against driving is the established practice that Johnson used his vehicle to run store errands, conduct which was known to occur, and perhaps required by, his supervisors. Of particular importance is D.P. s apparent policy of requiring employees to pick up supplies and run other store errands on their own time. As in Joma, a jury could find that this policy was intended to minimize the number of employees leaving the premises during business hours so that customer service would not be interrupted. 30 Johnson s act of picking up supplies on his personal time ensured that he would be clocked in 29 Id. 30 Joma at 189. 10
at the store for his full shift as required by his employer. Although he apparently combined this activity with other personal business, the overall activity might reasonably be found to have conferred some benefit to D.P. Therefore, a jury might properly find the dual purpose rule applicable here. 31 The Court now turns to the issue of Johnson s affidavit, which D.P. submitted along with its reply brief. Through this affidavit, Johnson avers the following: The sole purpose of my travel to the Domino s Pizza store location on March 30, 2004 was to begin my shift as manager at the store. If my shift at the Lancaster Pike store on March 30, 2004 had been changed or cancelled, I would not have traveled to the Lancaster Pike store on March 30, 2004. 32 D.P. argues that this affidavit is dispositive of the key question in a dual-purpose-rule analysis: whether the employee would have made the trip to benefit the employer even if the trip s private purpose had been abandoned. 33 In support of this position, D.P. cites Children s Bureau of Delaware v. Nissen. 34 31 Id. 32 Def. s Reply Br. Ex. 2. 33 Def. s Reply Br. at 2. 34 Children s Bureau of Delaware v. Nissen, 29 A.2d 603 (Del. 1942). 11
Nissen regards the applicability of workers compensation to the death of an employee while attending an out-of-town conference. The Superior Court held that the employee s death was not the result of activity arising out of and in the course of his employment as required by the applicable statutory provision. 35 In making this determination the Court placed great weight on the fact that it was the private purpose that induced and compelled the journey. 36 This Court finds Nissen inapplicable to the case at bar. Nissen is primarily a case a statutory interpretation, and the relevant statute is not at issue in the case before this Court. The facts in the case at bar are much more similar to those of Joma and its progeny. 37 Further, the averments in the affidavit, while they may be true, are not all the facts the jury might consider. The evidence is that the supplies which Johnson purchased that date were delivered to the store that date. Whether the trip conferred a benefit to the employer and is therefore subject to the dual purpose exception is for the jury to determine. 35 Id. 36 Id. at 607. 37 See Vandiest v. Santiago, 2004 WL 3030014 at *4 (Del. Super. Dec. 9, 2004) (denying summary judgment under the dual purpose rule); Webb v. Cooper, 1991 WL 89870 (Del. Super. March 14, 1991) (applying Joma to deny summary judgment). 12
Under the dual purpose doctrine, even though an employee is primarily motivated for personal reasons, he may still be working within the course and scope of his employment if the employer s business actuates the employee to any appreciable extent. 38 Finally, the Court addresses D.P. s contention that the dual purpose exception applies only to situations where the employee is working under the employer s direct control. The Court finds this is an overly strict interpretation of the rule. In the instant case, Johnson was not directed when to purchase or provide supplies to the store, but was free to exercise his judgment on the matter. Similarly, the employer in Joma exercised no such direct control over the employee, that is, they did not require him to collect lunch for the co-workers. Rather, the employee was permitted to use his break as he saw fit, and he chose to use his break in a manner that conferred an indirect benefit his employer. In Joma, the issue was properly submitted to the jury. It is appropriate to do so in this, similar matter as well. CONCLUSION For the reasons set forth herein, the Court finds that whether or not the accident at issue occurred while Johnson was acting in the scope of his employment is a genuine issue of material fact. When considering all the 38 Vandiest v. Santiago, 2004 WL 3030014 at *4 (Del. Super. Dec. 9, 2004). 13
facts in a light most favorable to the plaintiff, a jury might properly resolve this issue in the plaintiff s favor. Accordingly, Defendant s Motion for Summary Judgment is DENIED. IT IS SO ORDERED. /s/ M. Jane Brady Superior Court Judge 14