CUNNINGHAM v. Buffalo Brew Pub, Defendant-Respondent. (2006)

Plaintiffs commenced this action seeking damages for injuries sustained by plaintiff Scott G. Cunningham when he was struck by a vehicle driven by defendant Kristi Petrilla while he was completing his construction shift on an interstate highway.   At the time of the accident, Petrilla was driving home from her employment at Buffalo Brew Pub (Pub).   Supreme Court properly granted the motion of the Pub for summary judgment dismissing the complaint and cross claims against it.   Plaintiffs contend on appeal that the court erred in granting the Pub's motion because there are issues of fact concerning the Pub's liability under the doctrine of respondeat superior and for common-law negligence because the Pub encouraged its employees to drink alcohol with customers to help “ ‘promote social good will and business for the bar’ ” and it was “clearly foreseeable that an employee ․ might become impaired in his/her ability to safely operate his/her automobile upon leaving the [Pub].”

 “Under the doctrine of respondeat superior, an employer will be liable for the negligence of an employee committed while the employee is acting in the scope of his employment” (Lundberg v. State of New York, 25 N.Y.2d 467, 470, 306 N.Y.S.2d 947, 255 N.E.2d 177, rearg. denied 26 N.Y.2d 883, 309 N.Y.S.2d 1032, 258 N.E.2d 223;  see Riviello v. Waldron, 47 N.Y.2d 297, 302, 418 N.Y.S.2d 300, 391 N.E.2d 1278).  “As a general rule, an employee driving to and from work is not acting in the scope of his employment” (Lundberg, 25 N.Y.2d at 471, 306 N.Y.S.2d 947, 255 N.E.2d 177;  see D'Amico v. Christie, 71 N.Y.2d 76, 88, 524 N.Y.S.2d 1, 518 N.E.2d 896;  Correa v. Baptiste, 303 A.D.2d 355, 755 N.Y.S.2d 655;  Howard v. Hilton, 244 A.D.2d 912, 665 N.Y.S.2d 194, lv. denied 91 N.Y.2d 809, 670 N.Y.S.2d 403, 693 N.E.2d 750;  Pugsley v. Seneca Foods Corp., 145 A.D.2d 953, 536 N.Y.S.2d 324).   Here, Petrilla was driving home from work at the time of the accident, and the record establishes that she was “not acting in furtherance of any duty owed to [the Pub], nor did [the Pub] exercise any control over her activities” (Howard, 244 A.D.2d at 913, 665 N.Y.S.2d 194;  see Pugsley, 145 A.D.2d at 953-954, 536 N.Y.S.2d 324).   Even assuming, arguendo, that the Pub encouraged the consumption of alcohol by its employees, we conclude that Petrilla was on a strictly personal venture and thus as a matter of law was not acting within the scope of her employment at the time of the accident (see Casimiro v. Thayer, 229 A.D.2d 958, 645 N.Y.S.2d 243;  cf. James v. Eber Bros. Wine & Liq. Corp., 153 A.D.2d 329, 334, 550 N.Y.S.2d 972, lv. denied 75 N.Y.2d 711, 557 N.Y.S.2d 309, 556 N.E.2d 1116).   Finally, the Pub is correct that it is not liable for common-law negligence.   The accident did not take place on the Pub's premises nor did it involve the Pub's property, and thus the Pub owed no legal duty to plaintiff (see generally D'Amico, 71 N.Y.2d at 85-89, 524 N.Y.S.2d 1, 518 N.E.2d 896).

It is hereby ORDERED that the order so appealed from be and the same hereby is unanimously affirmed without costs.

MEMORANDUM: