Williams v. Levinson

GREENE, Judge,

dissenting.

This appeal raises two issues: (I) whether defendant Levinson’s attendance at the party was in the scope of her employment, and if so, (II) whether defendant Levinson’s travel to the party was in the scope of her employment.

I

I disagree with the majority that Camalier is more analogous to this case than Chastain. In Chastain, employees were required to be at work at the normal starting time to be paid for the day. Chastain v. Litton Systems, Inc., 694 F.2d 957, 959 (4th Cir. 1982). The holiday party took place on a normal work day, during normal working hours. Id. Camalier, on the other hand, involved a retirement party on a weekend during evening hours at a private home. Camalier v. Jeffries, 340 N.C. 699, 704, 714-15, 460 S.E.2d 133, 134-35, 141 (1995). There was no requirement the employees be at the party and neither were they paid for attending. Id. at 714-15, 460 S.E.2d 141. Moreover, it was not a holiday party reserved for employees but a retirement party to which over 300 guests had been invited. Id. at 712, 460 S.E.2d at 139.

In the present case, plaintiff’s forecast of the evidence tends to show on the day of the party, CCSA employees were required to report for work to be paid for a full day and the party took place during normal working hours and was reserved for employees. Although attendance was not required, defendant Levinson stated attendance was expected. This testimony is bolstered by the fact all of CCSA’s employees attended the party. One of the activities at the party was an employee group photo, for which the employees were encouraged to dress up, that was to be given to all employees at a later date and conceivably could be used as a record of attendance. This forecast of the evidence, taken in the light most favorable to plaintiff, creates a genuine issue of material fact as to whether attendance at the party was within the course and scope of her employment. See id. at 706, 460 S.E.2d 136 (summary judgment is proper when, taking the evidence in the light most favorable to the party against whom summary judgment is sought, there is no genuine issue of material fact).

II

An employer is liable, under the doctrine of respondeat superior, for the negligence of his employees if that negligence was within the scope of the employment. 30 C.J.S. Employer-Employee § 204 (1992); *342see Ellis v. Service Co., Inc., 240 N.C. 453, 456, 82 S.E.2d 419, 420 (1954). As a general rule, an employee is not within the scope of her employment “while operating h[er] personal car to the place where [s]he is to perform the duties of h[er] employment. . . nor while leaving h[er] employment to go to h[er] home.” Ellis, at 456, 82 S.E.2d at 420. An employee’s operation of her personal vehicle, however, is within the scope of employment if it occurs pursuant to a specific or implied authorization of the employer or is “incidental to the conduct authorized.” 30 C.J.S. Employer-Employee § 205; see Miller v. Wood, 210 N.C. 520, 524, 182 S.E. 765, 768 (1936).

In this case, there is evidence sufficient to support a conclusion that CCSA impliedly authorized its employees to drive their personal vehicles to the party. Indeed, because the party was away from the usual place of business and the employer provided no transportation, there was no reasonable alternative. Thus, a genuine issue of material fact exists on whether defendant Levinson’s travel to the party was within the scope of her employment.

Accordingly, summary judgment was entered in error. I would reverse and remand this case for trial.