DILLON

Appeal by Plaintiffs from order entered 12 June 2012 by Judge Forrest D. Bridges in Mecklenburg County Superior Court. Heard in the Court of Appeals 14 February 2013. Butler Pappas Weihmuller Katz Craig LLP, by Jay M. Goldstein, for Plaintiffs. Dean & Gibson, PLLC, by Michael G. Gibson and Zachary M. Jett, for Defendants.
DILLON, Judge.

HPT IHG Properties Trust and IHG Resources, Inc. (Plaintiffs), appeal from a summary judgment order entered 12 June 2012, in favor of The Shaw Group, Inc., Shaw NC Company, Inc., Shaw Environmental & Infrastructure, Inc., and Shaw Constructors, Inc. (Defendants), challenging the trial court's decision that there is no genuine issue of material fact and that Defendants are entitled to judgment as a matter of law. We affirm the order of the trial court.

I: Factual and Procedural Background

The evidence of record is largely undisputed and tends to show the following: Timothy Spradley, who lived in Macon, Georgia, was employed by Shaw Constructors, Inc. (Shaw), as a pipefitter. Between September 2007 and December 2007, Shaw required Mr. Spradley to be away from his Georgia home to work on the Belews Creek Project (the Project) in Belews Creek, North Carolina. During this time, Shaw provided Mr. Spradley a $65.00 per diem in addition to his wages. While in North Carolina working on the Project, Mr. Spradley stayed in Greensboro at the Candlewood Suites Hotel, which is owned and managed by Plaintiffs. On 3 December 2007, a fire started at Plaintiffs' hotel, caused by a pan of grease that Mr. Spradley left unattended on a stove in his room. As a result of the fire, Plaintiffs allegedly suffered damages to their real and personal property in an amount in excess of $10,000.

On 2 December 2010, Plaintiffs filed suit against Defendants and Mr. Spradley alleging that Mr. Spradley was negligent and that Defendants were liable under a theory of respondeat superior. On 8 March 2012, Defendants filed a motion for summary judgment. On 12 June 2012, the trial court entered an order allowing Defendants' motion for summary judgment. From this summary judgment order, Plaintiffs appeal.

II: Standard of Review

“Our standard of review of an appeal from summary judgment is de novo [.] ” In re Will of Jones, 362 N.C. 569, 573, 669 S.E.2d 572, 576 (2008) (quotation marks omitted). “Summary judgment is appropriate ‘if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that any party is entitled to a judgment as a matter of law.’ “ Variety Wholesalers, Inc. v. Salem Logistics Traffic Servs., LLC, 365 N.C. 520, 523, 723 S.E.2d 744, 747 (2012) (quoting N.C. Gen.Stat. § 1A–1, Rule 56(c)). “All facts asserted by the adverse party are taken as true, and their inferences must be viewed in the light most favorable to that party.” Id. (citation and quotation marks omitted). “The showing required for summary judgment may be accomplished by proving an essential element of the opposing party's claim does not exist, cannot be proven at trial, or would be barred by an affirmative defense[.]” Id. (citation and quotation marks omitted).

III: Summary Judgment

Plaintiffs argue on appeal that the trial court erred in granting Defendants' motion for summary judgment because, in the light most favorable to Plaintiffs, a genuine issue of material fact existed as to Defendants' vicarious liability, under a theory of respondeat superior, for Mr. Spradley's alleged negligent act. Plaintiffs argue that, even though Mr. Spradley's allegedly negligent act of leaving a pan of grease on the stove unattended in his hotel room was admittedly a “personal act,” the doctrine of respondeat superior should apply because there existed “a nexus between [the allegedly] negligent act and the performance of the employee[']s duties.” We find this argument without merit.

“Employers are liable for torts committed by their employees under a respondeat superior theory when the employee's act is expressly authorized; ... committed within the scope of [the employee's] employment and in furtherance of his master's business—when the act comes within his implied authority; ... [or] when ratified by the principal.” Taft v. Brinley's Grading Services, Inc., ––– N.C.App. ––––, ––––, 738 S.E.2d 741, 748 (2013) (citation and quotation marks omitted) (modifications in original). In this case, there is no contention that Defendants expressly authorized or ratified Mr. Spradley's conduct. Therefore, for this Court to conclude that summary judgment was inappropriate, there must be a genuine issue of material fact as to whether Mr. Spradley was acting within the scope of his employment at the time of the allegedly negligent act of leaving an unattended pan of grease on the stove in his room at Plaintiffs' hotel.

In considering whether an employer is liable for the acts of his employee under the doctrine of respondeat superior, this Court has held as follows:

To be within the scope of employment, an employee, at the time of the incident, must be acting in furtherance of the principal's business and for the purpose of accomplishing the duties of his employment. This Court has held that if an employee departs from the purpose of accomplishing the duties of her employment to accomplish a private purpose, the employer is not liable. However, Restatement of Agency, section 236 states that a servant may be [acting] within the scope of [his] employment if the servant, although performing [his] employer's work, is at the same time accomplishing [his] own objects or those of a third person which conflict with those of the master.
Matthews v. Food Lion, LLC, 205 N.C.App. 279, 282–83, 695 S.E .2d 828, 831 (2010) (internal citations and quotation marks omitted).

Plaintiffs rely on this Court's opinion in Estes v. Comstock Homebuilding Cos., 195 N.C.App. 536, 673 S.E.2d 399,disc. review denied,363 N.C. 373, 678 S.E.2d 238 (2009), and also on an unpublished opinion from the Eastern District of the United States District Court in Pennsylvania, Lexington Ins. Co. v. Henkels & McCoy, Inc., 2002 WL 32130104 (CIV.A.02–0764) (E.D.Pa.2003), as authority for the proposition that Mr. Spradley acted within the scope of his employment when he left the grease-filled pan unattended in his hotel room.

In Estes, the defendant homebuilder leased a house owned by the plaintiff to use as a sales model home for a housing subdivision. A sales assistant employed by the defendant caused a fire when she failed to extinguish a cigarette she was smoking during a break. The employer's “policy [in Estes was] for a single sales assistant not to leave the premises of the model home for any reason other than to show a property to a potential customer[,][and] [t]here is no dispute that [the employee] followed that directive.” Estes, 195 N.C.App. at 538, 673 S.E.2d at 400. The employee in Estes “was required to perform many tasks associated with sales while on duty, such as assisting any potential customer who entered the model home and answering the telephone.” Id. at 538, 673 S .E.2d at 400–01. The following evidence was presented at the summary judgment hearing in Estes with regard to the fire:

On the day of the fire, [the employee] was the only sales assistant on duty at the model home.... Immediately before the fire started, [the employee] went onto the attached deck of the model home to smoke a cigarette. While doing so, she heard the telephone ring inside the house. She attempted to put out her cigarette, went inside, and answered the telephone. However, [she] failed to completely extinguish the cigarette, which resulted in a fire and extensive damage to the model home.
Id. This Court affirmed the trial court's grant of the plaintiff's motion for summary judgment stating that “not every deviation from the execution of an employee's duty is such an interruption of the course of employment as to suspend the master's responsibility[,][and][i]t is only when there is a total departure from the course of the master's business, [that] the master is not answerable for the servant's conduct.” Id. at 541, 673 S.E.2d at 402 (emphasis in original) (citation and quotation marks omitted).

In Estes, the Court distinguished Tomlinson v. Sharpe, 226 N.C. 177, 37 S.E.2d 498 (1946). In Tomlinson, the defendant's employees were driving defendant's truck when it broke down on the side of the road. Id. at 179, 37 S.E.2d at 500. The plaintiff pulled over to offer assistance and offered for the employees to escape the cold in his truck. Id. Despite being warned by the plaintiff not to light a match due to a gas leak, one of the defendant's employees lit a match to light a cigarette and threw the match on the floor, which caused a fire. Id. at 179–80, 37 S.E.2d at 500. The Supreme Court ruled that the employee was not acting within the scope of his employment and, therefore, the employer was not liable, stating that “[a]n act of the servant is not within the scope of his employment if it is done with no intention to perform it as a part of or incident to a service on account of which he is employed.” Id. at 183, 37 S.E.2d at 502. In distinguishing Estes from Tomlinson, we stated the following:

The primary distinguishing factor between Tomlinson and [ Estes ] ... is that the defendant's employees in Tomlinson were not on the premises of their employer nor using an instrumentality (the truck) of their employer to perform their duties.... In [ Estes ], plaintiff was on the premises and was merely taking a short break while still attentive to her duties. She negligently put out the cigarette in order to perform one of her specified obligations to her employer.
Estes, 195 N.C.App. at 542, 673 S.E.2d at 403. The incident causing the injury in the case sub judice is more similar to that in Tomlinson than in Estes because Mr. Spradley was not at Defendants' worksite nor performing any obligation required by Defendants at the time he caused the fire.

In further support of our holding, we find our recent decision in Matthews, 205 N.C.App. 279, 695 S.E.2d 828, instructive. In Matthews, our Court affirmed the trial court's summary judgment order in favor of the defendant employer for injuries to the plaintiff in the bathroom of the defendant employer's store. Id. at 284, 695 S.E.2d at 832. An employee working for defendant employer caused the injury by knocking the plaintiff down as she opened the door to the bathroom, during a time when the employee was “off the clock.” Id. In Matthews, our Court reasoned that Estes was distinguishable:

The distinction between Estes and the present case is that in Estes the employee remained on duty at the time the incident occurred. In contrast, the facts of the case sub judice indicate that the employee, Hall, was not on duty, was not required to be on the premises at the time of the incident, and was not going to the bathroom in furtherance of Defendant's business.

....

In the case sub judice, Defendant had no control over [its employee] Hall once she was off the clock.... Therefore, Hall was acting outside the scope of her employment at the time she entered the bathroom and [her employer] is not liable under the theory of respondeat superior. Accordingly, the trial court properly granted Defendant's motion for summary judgment.
Id. at 283–84, 695 S.E.2d at 832.

Based on the reasoning of the cases cited above, we believe, according to the law of this State, that there is no genuine issue of material fact that Mr. Spradley did not act within the course and scope of his employment by preparing dinner in his hotel room at a time when he was off the clock. Though the unpublished Pennsylvania case cited by Plaintiff held that the doctrine of respondeat superior applied in a fact pattern similar to this case, we decline to apply the law of Pennsylvania. Midkiff v. Compton, 204 N.C.App. 21, 32, 693 S.E.2d 172, 179,cert. denied,364 N.C. 326, 700 S.E.2d 922 (2010) (stating that “although another state's case law can be informative and persuasive authority, it is not sufficient to justify our Court in holding in contrast with our Supreme Court”).

For the foregoing reasons, we affirm the 12 June 2012 order of the trial court allowing Defendants' motion for summary judgment.

AFFIRMED. Judge STEPHENS and Judge STROUD concur.

Report per Rule 30(e).