Question(s) Presented
In determining the question of respondeat superior the real test is whether, at the time did John Stokely commit the negligent act resulting in injury to a third person, was he performing some duty within the scope of his employment and does that make AAA Auto Dealers liable for his negligence.
Short Answer
No. Because, under respondeat superior an employer is responsible for harm which, is caused by an employee acting within the scope of employment. In such a case, the employer is said to have vicarious liability. In respondeat superior cases, the coming and going rule helps decide whether an employee’s actions fall outside the scope of employment, which John Stokey’s actions did fall outside the scope of employment due to this rule. He made the decision to go to his cousin’s house to eat and though his boss chose to go with him to get a “decent meal”, was not a gesture of running a “special errand” or “special mission” for his employer, but an act on just going to lunch with him.
Rule
As in the case of Jeewarat v. Warner Bros. Entertainment, Inc. 177 Cal. App.4th 427, 98 Cal.Rptr.3d 837 Cal. App. 2 Dist (2009). When After an automobile accident, pedestrians brought personal injury action against Marc Brandon’s employer Warner Bros. The order granting summary judgment and entering judgment in favor of Warner Bros stating that, “An offshoot of the doctrine of respondeat superior is the so-called ‘going and coming rule.’ Under this rule, an employee is not regarded as acting within the scope of employment while going to or coming from the workplace. This is based on the concept that the employment relationship is suspended from the time the employee leaves work until he or she returns, since the employee is not ordinarily rendering services to the employer while traveling. However, “exceptions will be made to the ‘going and coming’ rule where the trip involves an incidental benefit to the employer, not common to 436 commute trips by ordinary members of the work force.” When an employee is engaged in a “special errand” or a “special mission” for the employer it will negate the “going and coming rule.” An employee ‘coming from his home or returning to it on a special errand either as part of his regular duties or at a specific order or request of his employer ... is considered to be in the scope of his employment from the time that he starts on the errand until he has returned or until he deviates there from for personal reasons.’ ” quoting see also [when on a special errand the employee is in the course and scope of employment for the entire trip; it does not cease after the task has been accomplished].)
Discussion
The store claims they knew nothing of the spill and they check the floor at the top of the hour, every hour. According to their log sheet, the floor was last checked at 1:oop.m. Their employee who checked the floor was an elderly gentleman who wears glasses, could have easily overlooked a clear substance on the floor. The store is assuming partial responsibility, but claiming that Samantha Smith is partially to blame as well due to the fact she was being distracted by her misbehaving two year old son and not paying attention to the floor, to see the spill.
In the case of Troy v. Kroeger Co., 122, Ind. App., 105 N.E 2d 174 (IND. APP. 1952), the plaintiff sued the grocery store for personal injuries that she had sustained when she slipped and fell on an alleged grease spot on the floor and the plaintiff held the store responsible for negligence. The court had found in favor of the defendant, in stating that there was no evidence that the appellant knew or could not have known of the alleged grease spot, therefore, it cannot be held responsible or found guilty for negligence.
However, Samantha Smith has proven all four elements of negligence; duty, breach of duty, causation and damages. It was the stores duty to keep the floor clear at all times and they breached that duty, when the shampoo spilled on the floor, which caused Samantha to slip and fall and break her hip, which she was then awarded with medical bills from her hospital stay and many months of physical therapy.
Generally, a landowner has a common-law duty to keep his property in a reasonably safe condition for business invitees, and that obligation exists where injury is reasonably foreseeable in light of the hazardous nature of the instrumentalities on the owner’s premises, Plan-Tec, Inc. v. Wiggins, 443 N.E.2d 1212, 1218 (Ind. Ct. App. 1983). Here, it is undisputed that Smith was a business invitee, and as such, the grocery store owed her “the highest duty of care . . ., that duty being to exercise reasonable care for the invitee’s protection while she is on the premises.” Rhoades, 839 N.E.2d at 791 (citing Taylor v. Duke, 713 N.E.2d 877, 881 (Ind. Ct. App. 1999). Premises liability is described as the following:
A landowner is liable for harm caused to an invitee by a condition on the land only if the landowner: (1) knows of or through the exercise of reasonable care would discover the condition and realize that it involves an unreasonable risk of harm to such invitee; (2) should expect that the invitee will fail to discover or realize the danger or fail to protect against it; and (3) fails to exercise reasonable care in protecting the invitee against the danger.
Conclusion:
Samantha Smith has a good chance to win a comparative negligence case against the defendant, who is willing to accept partial blame in this case.
