Herr v. Simplex Paper Box Corp.
1938 Pa. LEXIS 572, 198 A. 309, 330 Pa. 129 (1937)
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Rule of Law:
An employer is not vicariously liable under respondeat superior for injuries caused by an employee's purely personal act, such as lighting a cigarette, even if the act occurs during work hours and in proximity to a work-related hazard, where the personal act is not in furtherance of the employer's business or an incident of authorized service.
Facts:
- Plaintiff, an employee of an oil company, was delivering gasoline to an underground tank maintained by Defendant, a paper box manufacturer, outside its factory.
- Plaintiff poured gasoline from a truck into the underground tank using five-gallon cans and a funnel.
- Plaintiff poured the gasoline too fast, causing it to spurt out of the tank's orifice into the air and onto his clothing.
- Defendant's employee, Weidner, came out of the factory to sign a receipt for the gasoline delivery.
- While Weidner was ten feet from Plaintiff, he struck a match to light a cigarette.
- The lit match ignited the gasoline fumes in the air, causing serious burns to Plaintiff.
Procedural Posture:
- Plaintiff sued Defendant for damages for personal injuries.
- A jury returned a verdict in favor of Plaintiff.
- The trial court refused to enter judgment in favor of Defendant, notwithstanding the verdict (JNOV).
- Defendant appealed the trial court's refusal to grant JNOV.
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Issue:
Is an employer vicariously liable under respondeat superior for injuries sustained by a third party when its employee, while present on the employer's premises for a work-related duty, performs a purely personal act of lighting a cigarette near flammable materials, causing ignition, where the personal act itself is not in furtherance of the employer's business?
Opinions:
Majority - Me. Justice Schaffer
No, an employer is not vicariously liable for injuries caused by its employee's purely personal act of lighting a cigarette, even if it occurs while the employee is on duty and the act triggers a hazardous condition related to the employer's business, because smoking is not within the scope of employment. The act of striking a match to light a cigarette was solely for Weidner's personal enjoyment and satisfaction, not in furtherance of or connected with his employer's business. While Weidner was on the premises to sign a receipt, this intended act had no connection to his decision to light a cigarette. The court distinguished situations where an employee's act of striking a match might be incidental to their job (e.g., a garage attendant lighting a match to see while fueling a car). The reasoning relies on the principle that if a servant steps aside from the master's business, even briefly, to do a personal act, the master-servant relationship is suspended for that act. The opinion cites Restatement, Agency, sec. 235, stating that an act is not within the scope of employment if done with no intention to perform it as a part of or incident to service. Numerous precedents denying employer liability for fires caused by employees smoking, when the act is purely personal, are reviewed.
Dissenting - Mr. Justice Maxey
Yes, the employer should be held liable because the employee's act of lighting a match, though personal, made the performance of his work-related duty (approaching the tank to sign a receipt) negligent, especially given the inherently dangerous surroundings. The dissent argues that Weidner's negligence in striking a match near volatile gasoline fumes was a negligent manner of performing a duty within the scope of employment. It cites Restatement of Agency, sec. 235, comment (d), which suggests liability where an act, though not for the master's purposes, causes the servant to be negligent in authorized conduct, particularly when the servant controls or is near hazardous materials. The opinion distinguishes cases where the work itself is not inherently dangerous from those involving inflammable materials. It emphasizes that sound public policy requires employers to ensure due care when employees work in dangerous environments like those with gasoline fumes, promoting better training and supervision to prevent foreseeable hazards.
Dissenting - Me. Justice Drew
Yes, the employer is liable because the employee's act of lighting a cigarette, while personal, rendered his work-related duty of going to the delivery area to sign a receipt a negligent performance of that duty. This dissent states that Weidner's presence at the delivery location was a part of his duty, and his failure to exercise due care under the circumstances (by lighting a match near fumes) constituted a negligent performance of that duty. The dissent aligns with cases such as Jefferson v. Derbyshire Farmers, Ltd., where liability was imposed because an employee's personal act (smoking) made a dangerous authorized operation (handling gasoline) negligently performed. It argues that the employer should be responsible when employees are careless with fire in inflammable surroundings, regardless of whether the employee technically had 'possession' of the combustible material. The opinion differentiates this case from others where the hazard was unrelated to the employment or where the employee was not performing any work-related task.
Analysis:
This case illustrates the challenging distinction in respondeat superior liability between an employee's personal acts and acts performed within the scope of employment. The majority adopted a strict interpretation, focusing on whether the specific act causing harm directly furthered the employer's business, thereby limiting employer liability for incidental personal negligence in a dangerous environment. The dissenting opinions advocated for a broader view, arguing that personal acts that make the performance of a work-related duty negligent, especially in inherently hazardous conditions, should trigger employer liability. This decision potentially narrows the scope of employer responsibility for employee actions not directly commanded but occurring during work hours, making it more difficult for injured parties to recover unless a direct link to the employer's business purpose or a known dangerous habit can be established.
