Swierczynski v. O'Neill

Fahey, J.

(dissenting). I respectfully dissent. The facts in this case are not in dispute. On October 28, 2002, defendant Joan O’Neill (O’Neill) was employed as a child protective worker for the Department of Social Services of Erie County (defendant). At 1:45 p.m. on the date of the accident, O’Neill signed out of defendant’s office building in downtown Buffalo to conduct her afternoon field visits. Upon completing her field visits at approximately 3:00 p.m., O’Neill obtained permission from her supervisor to leave work for the day. The collision occurred as O’Neill was driving home after her last field visit; she was not driving home from defendant’s office building.

In my view, the Lundberg exception applies under the circumstances of this case (see Lundberg v State of New York, 25 NY2d 467 [1969], rearg denied 26 NY2d 883 [1970]). “As a general rule, an employee driving to and from work is not acting within the scope of his [or her] employment . . . Although such activity is work motivated, the element of control is lacking. An exception to this rule is that an employee who uses his [or her] car in furtherance of his [or her] work is acting in the scope of his [or her] employment while driving home from his [or her] last business appointment, since such a person is working, and is under his [or her] employer’s control, from the time he [or she] leaves the house in the morning until he [or she] returns at night” (id. at 471). The majority implicitly concludes that the *1149Lundberg exception applies only where the employee’s vehicle is in essence the employee’s office, i.e., in the case of a traveling salesperson or repairperson. I cannot agree.

According to the reasoning of the majority, once O’Neill received permission to travel home, she was no longer under defendant’s control and the doctrine of respondeat superior therefore does not apply. In my view, that reasoning is flawed. “In cases such as this, involving allegedly employment-related travel, the crucial test is whether the employment created the necessity for travel . . . , i.e., the need to be on the particular route on which the accident occurred” (Cicatello v Sobierajski, 295 AD2d 974, 975 [2002]; see Greer v Ferrizz, 118 AD2d 536, 538 [1986]; see generally Matter of Marks v Gray, 251 NY 90, 93-94 [1929]). Here, O’Neill was traveling a route that was different from the route she would have traveled had she left for home from defendant’s office building. The route was dictated by her employment. But for the fact of her final field visit, she would not have been traveling the route on which the accident occurred (cf. Cicatello, 295 AD2d 974 [2002]). This case presents a textbook example of employment-related travel. Present— Scudder, P.J., Hurlbutt, Centra, Fahey and Green, JJ.