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In separate rulings Feb. 19, the New Jersey Supreme Court reached different outcomes on employer liability for third-party injuries caused by an employee’s car accident, but they did agree on one thing: New Jersey will not, at least for now, follow the California doctrine of “enterprise liability,” a type of no-fault rule predicated on the rationale that employee torts are an expected part of the cost of doing business. A split court in one of the cases left the door open to welcoming such a rule in the future. “It may be that under different facts, consideration of the broader California rationale would be warranted,” Justice Virginia Long wrote in Carter v. Reynolds, A-104, joined by Justices James Coleman Jr., James Zazzali and Barry Albin and Chief Justice Deborah Poritz. Justices Jaynee LaVecchia and Peter Verniero would have slammed the door shut. “The Court wisely declines to adopt a standard that effectively abandons the consideration of employer control in the context of employee automobile accidents,” wrote LaVecchia in a concurrence joined by Verniero. In Carter and in O’Toole v. Carr, A-105/106-01, the court held to the Restatement of Torts 2d’s standard of vicarious liability, finding the employer responsible in one case but not the other, based on the facts of each case. In Carter, the court held that an accounting firm was responsible for injuries that its employee caused while driving home from work. The justices imposed respondeat superior liability based on the dual purpose/required vehicle exception to the “going and coming rule.” The rule ordinarily exempts employers from liability for employee negligence on the way to and from work because the employee is not under the employer’s control and the employer derives no benefit from the commute. Appellate Division Judges Harvey Weissbard, Dennis Braithwaite and Donald Coburn had found that the employee, Alice Reynolds, was acting within the scope of her employment when she struck a construction worker in January 1997. Reynolds, a part-time employee of Stevens, Fluhr, Chismar, Alvino & Schechter in Neptune, N.J., generally spent a third of her time on the road visiting clients, and the firm required her to have her own car available for that purpose. At the time of the accident, she was headed home from a client visit. The firm’s policy reimbursed her for the mileage between the client’s office and her home, though not for the time spent on the trip. The firm’s lawyer, Steven Dumser, argued that because Reynolds’ workday had ended, the firm was not responsible for Carter’s injuries. He also argued for a narrower reading of the required-vehicle exception, based on a Maryland Supreme Court decision, Oaks v. Connors, 660 A.2d 423 (1995), that found no respondeat superior liability for an employee accident en route to a work assignment. Long disagreed. “When a vehicle must be provided by an employee, the employer benefits by not having to have available an office car and yet possessing a means by which off-site visits can be performed by its employees.” Employer control was also present because requiring use of a car meant “compelling the employee to foreswear … the use of carpooling, walking, public transportation, or just being dropped off at work,” Long wrote. The court also disagreed, however, with Carter’s alternative argument that a separate exception to the going and coming rule applied, the “special errand or mission exception.” The facts of the case did not support that exception, which requires that an employee “perform an act outside the ordinary confines of his or her job description at the behest of the employer.” Though Alan Sklarsky, who represents David Carter and his wife, Donna, won the case, he is disappointed that the court did not adopt enterprise liability. Sklarsky, a partner with Tomar, O’Brien, Kaplan, Jacoby & Graziano in Cherry Hill, N.J., describes that approach as “a fairer way to apportion the business risk rather than having to create fictions where you talk about the element of control.” He also took issue with the concurrence for its limiting gloss on the majority opinion by implying that the court would have reached a different result if Reynolds had gone back to the office first instead of heading straight home from the client’s office. “This was not the employee’s typical end-of-workday commute home from her regular worksite; it was a return home from assigned off-site work duties,” wrote LaVecchia. Dumser, a partner with Cherry Hill’s Gercke, Dumser, Shoemaker, & Sierzega, was reluctant to comment because he had not spoken with his client, but notes that California is the only state that uses enterprise liability, compared with about 45 that adhere to the Restatement standard. CELL PHONE USE IRRELEVANT In O’Toole v. Carr, the other case decided Feb. 19, the justices affirmed an Appellate Division ruling that found no vicarious liability to a law firm for an accident caused by a partner driving to his part-time job as a municipal court judge. On Jan. 8, 1998, when Paul Carr ran into the vehicle of Adrienne and Charles O’Toole Jr., he was driving a car leased in his name. But all expenses, including lease payments, gas and tolls, were paid out of the corporate account of his firm, Murray & Carr. While his personal automobile policy with First Trenton Insurance Co. had a $300,000 limit, the firm’s policy with CNA provided $1 million in excess coverage. Just before the collision, Carr claimed he had been conducting firm business on his cell phone, though the cell phone bill did not back that up. The justices adopted the opinion of Appellate Division Judges Erminie Conley, Steven Lefelt and Joseph Lisa. In their view, the disputed cell phone calls did not matter because Carr had hung up before the impact and thus was clearly not on firm business. In addition, since it would violate the Code of Judicial Conduct if Carr were serving any purpose of his law firm while commuting to his municipal judge position, the “accident could in no event be considered a risk incident to that enterprise,” wrote the court. Nor did the facts fit within one of the other exceptions to the going-and-coming rule: Carr was not on a law firm errand or mission; there was no evidence of a law firm policy requiring him to have a car for off-site firm business; and he was not in an “on-call” capacity, the court found. William Ford, who represents the now-defunct firm of Murray & Carr, says the problem with arguing for employer liability on the basis of a cell phone in the car is that it would remove all boundaries to liability. For example, if a lawyer who is a trustee of the Newark Library has an accident en route to a board meeting, his firm’s liability might be predicated on the ground that his visibility as a trustee generated extra business. “You can spit out these possibilities until the law of agency is just obliterated,” says Ford, a partner with Ford Marrin Esposito Witmeyer & Gleser’s Upper Montclair, N.J., office. Carr, now a Manahawkin, N.J., solo practitioner, did not return a call for comment, nor did his attorney, Michelle Monte, a partner with Sea Girt, N.J.’s Monte, Sachs & Borowsky. The O’Tooles’ lawyer, Kenneth Austin, formerly of Flynn, Austin & Associates in Marlton, N.J., had left the firm recently, and the firm did not respond to a question about his whereabouts.

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