Lessard v. Coronado Paint & Decorating Center, Inc.
142 N.M. 583, 168 P.3d 155, 2007 NMCA 122 (2007)
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Rule of Law:
An employer is not vicariously liable under respondeat superior for an employee's negligence while commuting home, even if the employee's personal vehicle is required for work, unless the employee was actively furthering the employer's business at the time of the accident. However, an employer can be directly liable for negligent hiring or retention if it owed a duty of care to the motoring public, with breach and proximate cause remaining questions of fact for the jury, even if the employee was not acting within the scope of employment.
Facts:
- On November 20, 2000, Sue Lessard and Barry Fennell were involved in an automobile accident on Rancho Viejo Boulevard in Santa Fe, New Mexico.
- Lessard suffered serious injuries when Fennell’s car crossed the center line and struck Lessard’s car, causing it to roll.
- At the time of the accident, Fennell was driving a vehicle owned by Clayton Gober, was on his way home from work, and had traveled about a mile from his last job site for Coronado Paint and Decorating Center (Coronado).
- Coronado contracted with Fennell to perform tile repair services at various locations, including the Rancho Viejo home building development, which required him to travel from job site to job site.
- Coronado did not provide Fennell with a vehicle, but Fennell used Gober’s truck, and Coronado's employee Miles Poteet prepared materials for Fennell to pick up.
- Coronado gave Fennell a cell phone for communicating with Coronado and scheduling appointments with customers.
- Fennell’s weekly installation contract with Coronado required him to insure the vehicle he used for work and name Coronado as an additional insured.
- Lessard alleged that Coronado, if it had inquired, would have discovered Fennell’s driver’s license had been suspended for failure to pay two car-accident-related judgments and that he had numerous moving violations.
Procedural Posture:
- Sue Lessard and her husband, Joel Lessard, filed a complaint against Coronado Paint and Decorating Center (Coronado) and other parties in the state trial court, alleging liability under theories of respondeat superior and negligent hiring and retention.
- Coronado filed a motion for summary judgment on both causes of action.
- The trial court granted summary judgment to Coronado on both claims, finding that employee Barry Fennell was acting outside the scope of his employment as a matter of law and that liability was precluded under both theories.
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Issue:
1. Does an employee's required use of a personal vehicle for work, when an accident occurs while the employee is commuting home, bring the employee's actions within the scope of employment for vicarious liability under respondeat superior? 2. Does an employer owe a duty of care to the motoring public in a negligent hiring or retention claim, such that questions of breach of duty and proximate cause should be reserved for the jury, even if the employee was not acting within the scope of employment at the time of the accident?
Opinions:
Majority - CASTILLO, Judge
1. No, an employee's required use of a personal vehicle for work, when an accident occurs while commuting home, does not bring the employee's actions within the scope of employment for vicarious liability under respondeat superior if the employee is not actively furthering the employer's business at the time. The court applied a three-pronged test to determine if Fennell was acting within the scope of his employment: (1) employer consent to vehicle use, (2) employer right to control the vehicle's operation (or inferable importance to business), and (3) employee furthering employer's business at the time. The court found that while a jury could infer Coronado consented to Fennell's vehicle use and that control could be implied due to the vehicle's importance to his duties and the insurance requirement, Lessard presented no evidence that Fennell was actively furthering Coronado’s business at the time of the accident. Fennell was simply driving home, acting solely from a personal motive, and thus not furthering Coronado’s business. The court distinguished this case from those in other jurisdictions that adopt broader 'required-vehicle' or 'enterprise liability' exceptions, emphasizing New Mexico law's focus on whether the employee was furthering the employer's business at the time of the negligent act. 2. Yes, an employer owes a duty of care to the motoring public in a negligent hiring or retention claim, such that questions of breach of duty and proximate cause should be reserved for the jury, even if the employee was not acting within the scope of employment at the time of the accident. The court determined that Coronado owed a duty to Lessard based on a two-step analysis: first, foreseeability, as Coronado could reasonably anticipate that an employee required to drive between jobs might have an accident with someone on the road during the workday; second, public policy, supported by NMSA 1978, § 66-5-42 (prohibiting employment of unlicensed drivers), which expresses a legislative intent to protect the motoring public. The court clarified that the scope or breach of this duty (e.g., whether to investigate an employee's driving record) and questions of proximate cause are factual matters for the jury, not suitable for summary judgment. Liability for negligent hiring or retention is a direct negligence claim against the employer and can exist independently of respondeat superior liability.
Analysis:
This case significantly clarifies the distinction between respondeat superior and negligent hiring/retention claims in New Mexico, particularly regarding employee travel. It reinforces a stricter interpretation of 'scope of employment' for vicarious liability, rejecting broader 'required-vehicle' exceptions adopted in some other states when an employee is merely commuting. Simultaneously, the decision expands an employer's direct duty under negligent hiring/retention to the general motoring public, establishing that even if an employee is off-duty, an employer's pre-hire or retention negligence can still be a basis for liability, leaving the critical questions of breach and causation for the jury. This provides a clear pathway for plaintiffs in direct negligence claims while limiting vicarious liability for employee commutes.
