Lane v. Messer

¶1(concurring):

¶2I agree that the judgment below should be affirmed. However, I diverge slightly in my analysis of the negligent supervision issue.

¶3Plaintiff Lane argues that Honeywell can be held liable for Lane’s injuries because it failed to enforce its rule against the personal use of company vehicles. Justice Howe analyzes this claim under a negligent-entrustment-of-a-vehicle theory, relying on 60A C.J.S. Motor Vehicles §§ 428, 430, 431, 432. I think a more straightforward analysis is made under sections 315 *492and 317 of the Restatement (Second) of Torts.

¶4The crux of Lane’s position is that Honeywell had a duty to control Messer’s conduct in using the company vehicle. In general,

[tjhere is no duty so to control the conduct of a third person as to prevent him from causing physical harm to another unless ... a special relation exists between the actor and the third person which imposes a duty upon the actor to control the third person’s conduct....

¶5Restatement (Second) of Torts § 315 (1965). In some cases, a special relationship may exist between an employer and an employee that will give rise to such a duty to control even when the employee is acting outside the scope of employment. However, because the employee is acting outside the scope of employment, the exposure to liability created by section 315 of the Restatement (Second) of Torts, unlike the liability imposed on the employer by the doctrine of respondeat superior, does not arise simply because the employment relationship exists; it is imposed only when special circumstances exist and are known to the employer. For example, an employer must exercise reasonable care to control an employee acting outside the scope of employment to prevent that employee from creating an “unreasonable risk of harm to others” if the employee is using an employer’s chattel and the employer “knows or should know of the necessity and opportunity for exercising control.” Restatement (Second) of Torts § 317 (1965); see also Annot., 48 A.L.R.3d 359, § 2[b] at 361 (1973).

¶6Plaintiff Lane argues that Honeywell could be found liable under the theory set forth in section 317 of the Restatement. Specifically, he contends that since Honeywell’s employees used company vehicles for personal purposes with Honeywell’s implied consent, Honeywell should be liable for any consequences of that personal use. That line of reasoning does not satisfy the requirements of section 317. Liability is not fixed upon an employer merely for permitting an employee to use an employer’s chattel; rather, the employer must know or have reason to know that there is a need to control the employee because of the risk his use of the chattel creates. S. Birch & Sons v. Martin, 244 F.2d 556 (9th Cir.1957); Abraham v. S.E. Onorato Garage, 50 Hawaii 628, 639, 446 P.2d 821, 826 (1968). Thus, under section 317 of the Restatement, Honeywell was only obliged to take reasonable steps to prevent Messer from creating an unreasonable risk of bodily harm to others resulting from his use of the company’s van if Honeywell knew or had reason to know that such steps were necessary.

¶7Viewing the facts as alleged in a light most favorable to plaintiff, there is nothing that would permit a jury to find Honeywell liable under section 317 of the Restatement. Simply permitting an employee to use a vehicle for personal purposes — the sole act of negligence alleged against Honeywell — does not create an unreasonable risk of harm to others.1See Spencer v. Gamboa, 102 N.M. 692, 693, 699 P.2d 623, 624, cert, denied, 102 N.M. 734, 700 P.2d 197 (1985); cf. Gill v. Schaap, 601 P.2d 545, 547 n. 1 (Wyo.1979); Cain v. Doe, 378 So.2d 549 (La.App.1979). To satisfy section 317, the jury would have to find that Honeywell knew or had reason to know that Messer would drive the van while intoxicated, thus creating an unreasonable risk to others. As Justice Howe notes, there is absolutely no evidence in the record to support such a finding. The un-controverted evidence is that Messer was a good employee and that Honeywell had no reason to believe that he might drive the van while intoxicated. See Abraham v. S.E. Onorato Garage, 446 P.2d at 820; accord Costa v. Able Distributors, Inc., 3 Hawaii App. 486, 653 P.2d 101, 105 (1982).