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A Superior Court in Delaware has declined to hold an Ohio construction company vicariously liable for the actions of an employee who, while driving a company-owned vehicle, hit a group of pedestrians. The construction worker was not acting within the scope of his employment when he got into a company van and hit nine pedestrians after being thrown out of Gators Restaurant and Bar in New Castle, the court ruled in Keating v. Goldick. According to the opinion, it was a “drunken brawl” that got defendant James D. Goldick, who was employed by defendant Lapp Roofing and Sheet Metal Co., thrown out of Gators. He then drove Lapp Roofing’s van onto a curb in front of the bar and hit seven people, the opinion stated. He struck two more people in the parking lot, the opinion said. “This event occurred after normal working hours, and it is obvious to the court that Goldick was not hired to engage in bar fights or to drive into individuals with the Lapp Roofing vehicle,” Judge William C. Carpenter Jr. wrote. “It also appears that the actions of Goldick that evening were not directly beneficial to his employer nor was it reasonably expected conduct by Lapp Roofing employees in the performance of a roofing job.” At the time of the incident, Goldick and other Lapp Roofing employees were working on a project in Wilmington, the opinion said. Lapp Roofing provided Goldick with a van to transport employees to the Wilmington job site, to meals and for other necessities, according to the opinion. After the incident, Goldick was arrested and pleaded guilty to three counts of assault and one count of reckless endangering, the opinion said. Six of the pedestrians whom Goldick hit filed personal injury claims against Goldick and Lapp Roofing, the opinion said. Lapp Roofing sought summary judgment, claiming that Goldick was not acting within the course and scope of his employment at the time of the incident and that the company had not negligently entrusted its van to the defendant, the opinion stated. The court in May 2003 rejected Lapp Roofing’s motion for summary judgment on the negligent entrustment issue but reserved decision on whether Goldick was acting within the scope of his employment. According to Carpenter’s April 6, 2004, opinion, the judge declined to revisit the negligent entrustment question. On the scope of employment issue, Lapp Roofing asserted that Goldick’s actions were not within the scope and course of his employment because his conduct at the bar was for his personal benefit rather than that of the company, the opinion said. The defendant also contended that company policy prohibited the use of corporate vehicles for personal purposes and that Goldick knew he was not to leave the hotel with the vehicle on his personal time, according to the opinion. The plaintiffs countered by citing Delaware’s dual-purpose doctrine, which provides that even when a worker’s actions are primarily for his or her own benefit, the worker’s conduct may be within the scope of employment if the employer’s business actuates the employee to any appreciable extent. The plaintiffs claimed that Lapp Roofing’s Delaware project caused its employees to be separated from their usual leisure activities and thus prompted Goldick’s actions to an appreciable extent, the opinion said. Carpenter disagreed. “There comes a point in every litigation where common sense will make some conclusions obvious,” Carpenter wrote. “If the [allegedly] injured plaintiffs were not involved in this litigation and were simply asked whether they believe that an individual who used an employer’s truck late at night to go to a bar and consume alcohol was acting within the scope of that employer’s employment, they would without hesitation say no. Logic and common sense would lead any reasonable person to that same conclusion.” Sending a crew from Ohio to Delaware with only a company-owned truck as transportation did expand the range of conduct that would be within the course and scope of the employees’ jobs, the opinion said, but no reasonable person could conclude that the limitation on transportation would expand coverage to a “drunken brawl.” The court also ruled that Lapp Roofing’s insurer, Cincinnati Insurance Co., was not liable for damages arising from the incident. Carpenter determined that under the policy, any bodily injury or property damage caused by expected or intended events is excluded from coverage. Daniel Bennett of Heckler & Frabizzio represented Lapp Roofing. Some of the plaintiffs are pursuing the negligent entrustment claim they filed against the company, although a trial date has not yet been set, Bennett said. Randall Robbins of Ashby & Geddes was counsel for plaintiffs Daniel and Marie Dragonette, Andrew Ahern III of the law offices of Joseph W. Benson represented plaintiff Christopher M. Keating, and Steven Stirparo of Wilmington served as counsel for plaintiffs Brian Dorsey and David Boyd. According to Ahern, some of the six individuals who brought the suit settled the matter before Carpenter issued his opinion. Ahern said his client and at least one other individual planned to continue with the case. One Beacon Insurance Co. was also listed as a plaintiff. One Beacon is the workers’ compensation carrier for Gators, according to the company’s attorney, John Klusman Jr. of Tybout Redfearn & Pell. Neither Robbins nor Stirparo could be reached for comment immediately prior to press time.

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