Opinion
2012-09-28
Talia M. ROTH, Plaintiff–Appellant, v. KALEIDA HEALTH, Defendant–Respondent. (Action No. 1.) Phillip Landi, Plaintiff–Appellant, v. Kaleida Health, Defendant–Respondent. (Action No. 2.)
Law Office of J. Michael Hayes, Buffalo (J. Michael Hayes of Counsel), for Plaintiff–Appellant Phillip Landi. Law Offices of Eugene C. Tenney, Buffalo (Courtney G. Scime of Counsel), for Plaintiff–Appellant Talia M. Roth.
Law Office of J. Michael Hayes, Buffalo (J. Michael Hayes of Counsel), for Plaintiff–Appellant Phillip Landi. Law Offices of Eugene C. Tenney, Buffalo (Courtney G. Scime of Counsel), for Plaintiff–Appellant Talia M. Roth.
Rupp, Baase, Pfalzgraf, Cunningham & Coppola LLC, Buffalo (R. Anthony Rupp, III, of Counsel), for Defendant–Respondent.
PRESENT: SCUDDER, P.J., SMITH, FAHEY, LINDLEY, AND MARTOCHE, JJ.
MEMORANDUM:
Plaintiffs commenced these actions seeking damages for injuries they sustained when they were struck by a motor vehicle while they were crossing the street at an intersection. The vehicle was driven by defendant's employee, an “on-call” nurse who was traveling home from the hospital at the time of the accident. Supreme Court properly granted defendant's “motion and cross motion” for summary judgment dismissing the complaint in action No. 2 and the complaint in action No. 1, respectively. “ ‘An employer generally is not liable for an employee's negligence while the employee is traveling to or from work because the element of control is lacking’ ” ( Cicatello v. Sobierajski, 295 A.D.2d 974, 975, 743 N.Y.S.2d 781;see D'Amico v. Christie, 71 N.Y.2d 76, 88, 524 N.Y.S.2d 1, 518 N.E.2d 896). In cases such as this, involving allegedly employment-related travel, “ ‘the crucial test is whether the employment created the necessity for the travel’ ” ( Swartzlander v. Forms–Rite Bus. Forms & Print. Serv., 174 A.D.2d 971, 972, 572 N.Y.S.2d 537,affd.78 N.Y.2d 1060, 576 N.Y.S.2d 214, 582 N.E.2d 597), i.e., the need to be on the particular route on which the accident occurred ( see Greer v. Ferrizz, 118 A.D.2d 536, 538, 499 N.Y.S.2d 758). Under the dual purpose principle, “[i]f the travel would still have occurred even [if] the business purpose [had been] canceled, then the employer cannot be held liable” ( Matos v. Depalma Enters., 160 A.D.2d 1163, 1164, 554 N.Y.S.2d 367). Here, while defendant may have been able to exercise some degree of control over its employee at the time of the accident because he was “on-call,” defendant did not create the necessity for the employee to take any particular route home after leaving the hospital. We thus conclude as a matter of law that the employee's activities were not being controlled by defendant, nor was the employee acting in furtherance of any duties owed to defendant by returning home ( see Lundberg v. State of New York, 25 N.Y.2d 467, 471–472, 306 N.Y.S.2d 947, 255 N.E.2d 177,rearg. denied26 N.Y.2d 883, 309 N.Y.S.2d 1032, 258 N.E.2d 223;Swartzlander, 174 A.D.2d at 972, 572 N.Y.S.2d 537;Matos, 160 A.D.2d at 1164, 554 N.Y.S.2d 367;see generally Tenczar v. Richmond, 172 A.D.2d 952, 952–953, 568 N.Y.S.2d 232,lv. denied78 N.Y.2d 859, 575 N.Y.S.2d 455, 580 N.E.2d 1058).
It is hereby ORDERED that the order so appealed from is unanimously affirmed without costs.