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Respondeat Superior/Scope of Employment in Maryland Injury Cases

Often times Maryland lawyers who represent injured victims are faced with the real world problem of collecting on an otherwise valid claim. This arises in situations where the plaintiff/ victim is injured by a person who does not have any assets or insurance. When the defendant causes the injury while working, the experienced plaintiff’s attorney will immediately look to recover (or collect) from the employer or his insurance policy. This is known as the doctrine of Respondeat Superior.

Respondeat Superior comes from the idea that where one of two innocent persons must suffer for the wrong of a third, it should be the one who enabled the third to do the wrong. In order to hold the employer liable for the injuries to a third person through the negligence of the employee the Plaintiff must show (1) that the employer had control or right of control over the employee; (2) that the action was within the scope of the employee’s employment; (3) the action was in furtherance of the employer’s business. It might also be necessary to show that the employer knew, or should have known of the need to control the employee.

The general test for determining whether an act is with in the scope of employment was set forth in Hopkins C. Co. v. Read Drug & C. Co., 124 Md. 210, 214, 92 A. 478, 479-80 (1914). “The simple test is whether they were acts within the scope of his employment; not whether they were done while prosecuting the master’s business, but whether they were done by the servant in furtherance thereof, and were such as may be fairly said to have been authorized by him. By “authorized” is not meant authority expressly conferred, but whether the act was such as was incident to the performance of the duties entrusted to him by the master, even though in opposition to his express and positive orders.” (quoting from Wood on Master and Servant § 279 (1877)). Accord, e.g., Wood v. Abel, 268 Md. 214, 227, 300 A.2d 655, 671-672 (1973); Drug Fair v. Smith, 263 Md. 341, 350, 283 A.2d 392, 397 (1971); LePore v. Gulf Oil Corp., 237 Md. 591, 595, 207 A.2d 451, 453 (1965); Lewis v. Accelerated Express, 219 Md. 252, 255, 148 A.2d 783, 785 (1959); E.Coast Lines v. M. & C. C. of Balto., 190 Md. 256, 285, 58 A.2d 290, 303-04 (1948).

Other Maryland cases have adopted the test set forth in the Restatement (Second) of Agency to determine whether an act was within the scope of employment. See, e.g., Great A&P Co. v. Noppenberger, 171 Md. 378, 391, 189 A. 434 (1937), State of Maryland to Use and Benefit of Gaegler v. Thomas, 173 F.Supp. 568, 571 (D. Md. 1959). The Restatement factors are as follows: (a) whether or not the act is one commonly done by such employees; (b) the time, place, and purpose of the act; (c) the previous relations between the employer and the employee; (d) the extent to which the business of the employer is apportioned between different employees; (e) whether or not the act is outside the enterprise of the employer or, if within the enterprise, has not been entrusted to any employee; (f) whether or not the employer has reason to expect that such an act will be done; (g) the similarity in quality of the act done to the act authorized; (h) whether or not the instrumentality by which the harm is done has been furnished by the employer to the employee; (i) the extent of departure from the normal method of accomplishing an authorized result; and (j) whether or not the act is seriously criminal. Restatement (Second) of Agency § 229 (1958). The Restatement (Second) of Agency also has a section on Forbidden Acts and it says the same thing as the Maryland Courts: “An act may be within the scope of employment, even though forbidden, or done in a forbidden manner.” Restatement (Second) of Agency, § 230 (1958).

In addition to the Hopkins test for determining whether the act was within the scope of employment, there is case law in Maryland that says that “an act may be within the scope of employment, even though forbidden, or done in a forbidden manner” State of Maryland to Use and Benefit of Gaegler v. Thomas, 173 F.Supp. 568, 571 (D. Md. 1959); see, also., Great A&P Co. v. Noppenberger, 171 Md. 378, 391, 189 A. 434 (1937); Fowser Fast Freight v. Simmont, 196 Md. 584, 592, 78 A.2d 178, 181 (1951).

In Gaegler the employer ran a trucking service. Employee was regularly employed, Monday through Friday. On Friday, employee was told that there might be some work for him on Saturday, so he should “come out.” On a Saturday, the employee went to the home of the employer, in Washington, took his truck and drove to the office. He then called the employer’s home and was told that he should go to a certain location and wait there as there was a job for him to do. The employee then went to the location, found no one there, and proceeded to drive to the employer’s farm, in Deale, Md. At the farm he fed some animals, some of which he had an interest in, and picked vegetables for his own personal use. While at the farm, he again called the employer’s home in Washington. Later, in the afternoon, the employer arrived at the farm, furious, claiming that the employee had lost him a job by not waiting where he had been instructed to. The employer then left, expecting to return shortly. The judge found that as a matter of law, the employer expected the employee to wait for him, not to leave the farm and not to drive the truck until he returned. The employee left in the truck shortly after the employer, and on his way back to Washington the accident occurred. When sued, the employer claimed that the employee had no permission to use the truck on Saturday; that he used it for his own benefit, to feed his hog, or to pick vegetables; that he violated a direct order, both when told to wait at the specific location in the morning and by driving back to Washington in the afternoon. The judge applied the Restatement test, and found that although forbidden to drive the truck when the accident occurred, the driving was within the scope of his employment and in furtherance of the employer’s business. 173 F. Supp. at 571.

In Noppenberger the employer was A&P supermarkets. The meat department manager told an employee to use the manager’s car to transport some meat to another supermarket. The employee had no driver’s license, did not know how to drive and had an accident on the way to the other store. The company had a written policy against using personal vehicles for company business. However, the court found that the act was in furtherance of the company’s business, and therefore within the scope of employment, even though they had a policy forbidding the act. 171 Md. 378, 391, 189 A. 434, 437.

In Fowser Fast Freight, the employee was a driver delivering products from New Jersey to a location in Maryland. Company policy allowed him to stop for food at any location along his route where he could park his rig. The employee made his delivery, unhitched his tractor from the trailer and headed down the road to eat, south of his destination, where he had an accident. The company disclaimed liability on the theory that company policy only allowed meal breaks along the route designated by the company, and under no circumstances was he allowed to disconnect his tractor and use it to travel for food. The court found that even though he was in violation of the company policy, the act was still within the scope of his job. 196 Md. at 592, 78 A.2d at 181.

There is, also, a rebuttable presumption that the driver of an automobile (here the truck) is the agent and servant of the owner. The evidence necessary to destroy that presumption as a matter of law must be conclusive. Otherwise it becomes a question for the jury. Phipps v. Milligan, 174 Md. 438, 199 A. 498; see also, National Trucking & Storage, Inc. v. Durkin, 183 Md. 584, 588, 39 A.2d 687; Taylor v. Freeman, 186 Md. 474, 477, 47 A.2d 500; Scott v. James Gibbons Co., 64 A.2d 117, 116. If the employer can show conclusive proof that the employee was acting in his interest alone, he can escape liability. However, if the facts and any legitimate inferences therefrom show a mere deviation in the employee’s interest from that of the employer, liability may attach and the question as to whether the employee was acting in the scope of his employment is one for the jury. Fowser Fast Freight, 196 Md. at 592.; see also, National Trucking & Storage, Inc., 183 Md. at 588, 39 A.2d at 687; Restatement (Second) of the Law of Agency, § 238 (1958).

For more information on this area of the law, contact the experienced Maryland plaintiff’s lawyers of Silverman, Thompson, Slutkin & White, LLC, located in Baltimore, Maryland.