(dissenting). I dissent. While the facts as set forth in the majority opinion are generally accurate, I do not find warrant for the statement that "the drivers * * * were the sole source of transportation in * * * Saratoga” since it is beyond dispute that public transportation at least in the form of taxicabs is available in Saratoga Springs. Thus, Montgomery’s employees could not have been regarded as "marooned”.
I am of the opinion that there are no genuine issues of fact, and that, as a matter of law, Montgomery Ward did not have such control of the nonbusiness activities of its employees so as to invoke the doctrine of respondeat superior. The scope of that doctrine is set forth in Lundberg v State of New York (25 NY2d 467). Under that doctrine, an employer can be held responsible for the negligent acts of an employee committed while the latter is acting in the scope of his employment. "An employee acts in the scope of his employment when he is doing something in furtherance of the duties he owes to his employer and where the employer is, or could be, exercising some control, directly or indirectly, over the employee’s activities” (25 NY2d, at p 470). "Scope of employment” for purposes of this test, moreover, is narrower than the "course of employment” test in workmen’s compensation cases (see 25 NY2d, at p 472).
Here, the examinations before trial reveal that Lombardy, like most of the others, was there to be trained — he was not in any supervisory position vis-á-vis other trainees. His car was used because it was the only one available, but he had not been instructed or even requested to provide local transportation for his colleagues while they were in the Saratoga area. On the night of the accident, the plaintiff had not eaten dinner with the people who were in the car at the time of the accident, so it could not be found that there was any program of planned social activities in which all employees were required or expected to participate. In fact, plaintiff had initially declined an invitation to go to the raceway, but agreed to go only when she was promised that she would be returned to the motel in 15 minutes. The trip seems to have been a spontaneous suggestion by a cotrainee other than defendant Lombardy. Nothing else in the examinations, affidavits or pleadings points to any evidence which could establish any facts other than that the trip was personally motivated, was *290not required by the employment or in furtherance thereof, or subject to the employer’s control. The court is not obliged "to ferret out speculative issues 'to get the case to the jury’ where the trial may disclose something the pretrial proceedings have not” (Andre v Pomeroy, 35 NY2d 361, 364).
Analyzing the undisputed facts in light of controlling case law, there is no basis upon which it could be concluded, for purposes of the doctrine of respondeat superior, that Lombardy was in the scope of his employment or was subject to the control of Montgomery. In Lundberg, one Sandilands, an engineer who was permanently based and resided in Buffalo, was temporarily assigned to a project in Salamanca, about 80 miles away. Sandilands stayed in a hotel in Salamanca, during the work week, and would drive home on weekends. He was reimbursed for his living expenses while away from home, and for his travel expenses at the rate of nine cents a mile. On a Monday morning, while driving to Salamanca from Buffalo, he was involved in an auto accident. A judgment against his employer based on Sandilands’ negligence in causing the death of another was reversed. It was the opinion of the Court of Appeals that in driving from Buffalo to his work site, he was not in the scope of his employment. Since Sandilands was as free to do as he wished on weekends, as were the employees in the present case with their time not spent in training sessions, he "was not driving his car in furtherance of his work at the time of the accident * * * [and thus] was engaged in an independent personal activity over which the [employer] had no control” (25 NY2d, at p 471). An argument that the driving by Sandilands was done to fulfill an obligation to the employer, and thus was necessitated by the employment, was rejected. In light of this, it seems to me inescapable to conclude that the recreational trip in the case at bar was certainly no more the creation of the employment than Sandilands’ trip in Lundberg. To paraphrase that case, Lombardy "was not driving to satisfy an obligation he owed to his employer but solely to satisfy his personal desire to visit [the raceway]; * * * [Montgomery] clearly did not have the power to control [Lombardy’s] activities after the close of [the training sessions] * * *. During these hours, [Lombardy] was free to do as he pleased * * *. [T]he mere fact that [Montgomery] had agreed to pay * * * a mileage allowance, did not bestow in it any right of control. To hold that by simply paying his travel expenses * * * [Montgomery] opened itself *291to liability for any tortious act he might commit while traveling * * * would be patently unfair and beyond the scope of the doctrine of respondeat superior” (25 NY2d, at pp 471-472).
Nor can it be successfully urged that Montgomery should have foreseen that its employees would engage in reasonable recreational activities and therefore should be responsible for injuries arising therefrom. While an employer may have an interest in the "good health and spirits of its employees”, personal outings do not thereby become the employer’s business (Stenzler v Standard Gas Light Co. of City of N. Y., 179 App Div 774, 776, aifd 226 NY 681). While a different rule pertains in compensation cases, the distinction is a sound one. Compensation liability is not based on fault, wherefore such liability arises from the relatively passive act of placing an employee in a situation where injury is not totally removed from the course of employment. Respondeat superior, on the other hand, is founded upon a negligent act causing injury to a third person. In this case, if Trolenberg and Lombardy were both to be found negligent, respondeat superior could only be invoked for any contribution owing from Lombard to Trolenberg under Dole v Dow Chem. Co. (30 NY2d 143). Before an employer can fairly be held to account for such injury to a third person, it is only fair to require that the activity be necessary to the employer’s business so that the employer may have an opportunity to exercise control. To subject Montgomery Ward to liability in the circumstances of the present case would establish a limitless doctrine of enterprise liability which we must decline to do. For these reasons, I would dismiss the claim against Montgomery Ward.
Sweeney and Main, JJ., concur with Kane, J.; Herlihy, P. J., concurs in a separate opinion; Greenblott, J., dissents and votes to dismiss in an opinion.
Order affirmed, without costs.