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Cronin v. Hertz Corp.

decided: May 19, 1987.


Appeal from a decision of the United States District Court for the District of Connecticut, T. Emmet Clarie, Judge, holding that the United States was not vicariously liable for an automobile accident involving its temporarily assigned employee because the employee was acting outside the scope of employment. Affirmed.

Author: Oakes

OAKES, MESKILL, and MAHONEY, Circuit Judges.

OAKES, Circuit Judge.

This appeal involves a question of the vicarious liability of the United States for an automobile accident caused by a civilian employee on temporary assignment away from home. The accident occurred after working hours and after a number of alcoholic drinks, but on the employee's way back to lodging provided by the Government in a rental car paid for by the Government. The United States District Court for the District of Connecticut, T. Emmet Clarie, Judge, held that the employee, Thomas M. Hull, was not acting within the scope of his employment at the time of the accident and therefore that the United States was not vicariously liable as his employer under the Federal Drivers Act, 28 U.S.C. § 2679(b) (1982). We affirm.

Hull was employed by the United States as a civilian nuclear engineering technician at the Pearl Harbor Naval Shipyard in Hawaii. In August 1980 he was assigned, along with eight other employees of the shipyard, to take a training course at the Electric Boat Division in Groton, Connecticut. His temporary duty orders for the 88-day Groton assignment provided for payment of his expenses on a per diem basis seven days a week, although classes were held for only five days. Arrangements for air travel, lodging, and three Hertz rental cars to be shared by the nine employees were made in advance by Pearl Harbor personnel and United States funds were used as payment. The rental cars were made available and used both for travel to the site of the training course, which was less than a mile from the employees' motel, and for other purposes, such as shopping, church attendance, and recreation. This personal use of the cars, which included visiting bars, was known to all in the group, including the senior employee present. It was understood that whoever was using a car would return it to the parking lot of the motel in order to make it available to other members of the party, at least for the purpose of traveling to class.

Classes were held between 7:00 a.m. and 3:30 p.m., Monday through Friday. On Wednesday, October 1, 1980, Hull left class and walked to a nearby bar where he ate, played pool and video games, and sipped three or four drinks consisting of bourbon and water. At some time before 10:00 p.m. he took one of the rental cars, went grocery shopping, and then stopped at another bar. After ordering one or two drinks for himself, he met a fellow who bought several rounds more until -- by now quite sleepy -- he left the bar at around 2:00 a.m.. He had had a total of some eight to ten bourbon and waters since leaving class. On the way back to the motel, after having missed a turn that would have taken him directly back, Hull collided with a motorcyclist, Kenneth Cronin, who was severely injured. At the time of his arrest, Hull was found to have a blood alcohol level of .14 percent, considerably over the Connecticut intoxication limit of .10 percent.

Cronin's wife, as conservatrix of his estate, sued the Hertz Corporation under a Connecticut statute making auto renters liable for their lessees' accidents, Conn. Gen. Stat. § 14-154a (1987). Hertz impleaded Hull who in turn impleaded the United States. Hull claimed that he was acting within the scope of his employment at the time of the accident and that therefore the United States was vicariously liable under the Federal Drivers Act, 28 U.S.C. § 2679. Hertz settled Cronin's claim by paying approximately $1.9 million and obtained a stipulated judgment against Hull pursuant to which he would be liable to Hertz only if the United States were held exclusively liable under the Act. After hearing the evidence, including Hull's own testimony that he was not performing any duties and was not thinking about business at the time of the accident, the district court concluded that Hull was on "a frolic of his own" and accordingly was not acting within the scope of his employment. On appeal, Hull argues, first, that he was within the scope of his employment for the entire duration of his Groton assignment, with the recreational use of the car being incidental to the employment, and, second, that even if he was not acting within the scope of his employment earlier in the evening when he was visiting the bars, he was so acting at the time of the accident because he was then seeking to fulfill his obligation to return himself and the car to the motel to be ready for class the following morning.


The Federal Drivers Act, adopted in 1961, makes the federal government exclusively responsible for claims for damages against its employees arising from the operation of vehicles in the scope of their government employment. 28 U.S.C. § 2679(b); see S. Rep. No. 736, 87th Cong., 1st Sess., reprinted in 1961 U.S. Code Cong. & Admin. News 2784. Grafted on to the Federal Tort Claims Act, 28 U.S.C. § 1346(b) and 28 U.S.C. §§ 2671-2680, the Federal Drivers Act does not contain any federal definition of "scope of employment" but rather, as in the case of tort claims generally, looks to "the law of the place where the act or omission occurred," 28 U.S.C. § 1346(b); see also Williams v. United States, 350 U.S. 857, 76 S. Ct. 100, 100 L. Ed. 761 (1955) (per curiam) (finding a tort case "controlled by the California doctrine of respondeat superior ").

Thus, we look to the law of Connecticut. In doing so, a preliminary question we face is whether Connecticut law resembles that of some states, for example, Arizona, see Driscoll v. Harmon, 124 Ariz. 15, 16, 601 P.2d 1051, 1052 (1979) (en banc), that maintain a double standard of liability by affording employees a broad right of recovery for injuries incurred within the scope of employment under the law of workers' compensation, while not affording third parties coextensive rights against the employer for torts by employees under the common-law doctrine of respondeat superior. It is important to note first that the standard for respondeat superior liability here -- "scope of employment" -- and the standard under Connecticut's workers' compensation statute -- "course of employment," Conn. Gen. Stat. § 31-284(a) (1987) -- are remarkably similar, and, indeed, Connecticut courts have often used the terminology interchangeably. See, e.g., Corcoran v. Jacovino, 161 Conn. 462, 470, 290 A.2d 225, 230 (1971); Begley v. Kohl & Madden Printing Ink Co., 157 Conn. 445, 449, 254 A.2d 907, 910 (1969). In addition, as a general proposition principles established in cases involving workers' compensation are said to be "equally applicable to cases brought under the common law." D'Addario v. American Automobile Ins. Co., 142 Conn. 251, 255, 113 A.2d 361, 363-64 (1955). It is therefore proper for us to look to the compensation cases for guidance in this respondeat superior case.*fn1

We also note that Connecticut law follows no mechanical formula or set for formulae relating to "deviations," "detours," "frolics," and the like, labels in the legal literature of vicarious responsibility. Rather, Connecticut courts look to the individual facts in a given case and the context in which they occur, and balance the factors involved in a determination of scope of employment. Thus, as the Supreme Court of Errors put it in Hickson v. W.W. Walker Co., 110 Conn. 604, 611, 149 A. 400, 403 (1930):

Whether the extent of his departure from the scope of his employment, or the area of his service, was so unreasonable as to make of his act of deviation an independent journey of his own rather than a mere detour, or one incidental to his employment, is a question of degree, and ordinarily one of fact, unless the deviation is so great, or the conduct so extreme, as to take the servant outside the scope of his employment and make his conduct a complete departure instead of a deviation still incidental to his employment.

We take it then that Connecticut law is not out of line with the basic American law on "scope of employment" related in Restatement (Second) of Agency §§ 228-237 (1958). Therefore we must examine and weigh a number of factors, the weight of which varies with the circumstances involved, including, as put by a leading tort authority, "the time and place of the deviation, its extent with relation to the prescribed route, whether its motivation is in part to serve the master, and whether it is a usual sort of deviation for servants on such a job." 5 Harper, James & Gray, The Law of Torts § 26.8, at 40 (2d ed. 1986).*fn2

Hull first argues that he was acting within the scope of his employment for the duration of his temporary duty assignment, in short, that whatever he did while he was in Connecticut was on his employer's general business of training him in the nuclear field. He cites for this proposition Harivel v. Hall-Thompson Co., 98 Conn. 753, 120 A. 603 (1923), and Morin v. Lemieux, 179 Conn. 501, 427 A.2d 397 (1980). In Harivel, a traveling salesman was injured in a hotel fire in Virginia while on company business for a Connecticut employer. The court, after noting that the salesman's salary covered the travel period and his expenses were paid by his employer, held that for workers' compensation purposes he was injured in the course of his employment. The court stated, however, that "if he departed from the employment, which required him to reach Richmond by continuous travel reasonably taken, and undertook some business, convenience, or pleasure of his own, he would not for such period be in the course of his employment." 98 Conn. at 756, 120 A. at 604. In Morin a carpenter, sent to an away-from-home construction site by his employer, was injured while walking from transportation furnished by his employer to an apartment also furnished by the employer. The employee was likewise held covered by workers' compensation, with the court noting that "the employee intended to go and was in fact going directly from furnished ...

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