Higginbotham v. AN Motors of Scottsdale – 2/2/2012

February 20, 2012

Arizona Court of Appeals Division One Holds that in a Vicarious Liability Negligence Action Against an Employer, an Employee Running a Personal Errand or Taking a Refreshment Break During Work Hours Is Not as a Matter of Law Outside the Scope of Employment.

On the morning of June 4, 2008, James Higginbotham and his wife, Darleen Lynn Higginbotham, were struck by a vehicle driven by Jason Steven Hampton. Mr. Higginbotham was seriously injured in the accident and his wife was killed. Hampton was an automobile parts delivery driver based at Power Ford in Scottsdale working for Driver Solutions. Hampton made three delivery runs throughout the day and was allotted two and a half hours to complete each run. If he completed a delivery run early, his employers let him stop for food, drink, or cigarettes, or run personal errands. On the date of the accident, Hampton had finished his delivery run an hour early, had stopped to buy a soda, and was on his way home to pick up some cigarettes when the accident happened. He was heading in the opposite direction from his next delivery stop, but he had enough time to pick up the cigarettes and be on time to his next delivery.

Higginbotham filed an action for negligence and wrongful death against Hampton, Power Ford, and Driver Solutions alleging that Hampton was acting as an agent of the other defendants. The trial court granted summary judgment for Power Ford and Driver Solutions (the “Appellees”), stating that they were not vicariously liable for Hampton’s conduct because Hampton was not acting in the course and scope of his employment at the time of the accident because the Appellees had no control over Hampton and he was not acting to further their business in any way. Higginbotham appealed.

The Court of Appeals vacated the superior court’s judgment and remanded. The main factors at issue were whether Hampton was acting within the authorized time and space limits of his employment and whether the appellees had the right to control his activity at the time of the collision. The Court rejected the Appellees’ argument that Hampton was only within the course and scope of his employment during each specific delivery run and that he was off-duty and beyond their control outside those times. The Court held that under the facts of the case, a jury could decide that Hampton was employed for the entire day, and not just during his delivery runs because the time for each run varied each day; Hampton was paid a pre-determined salary regardless of the delivery routes to which he was assigned; and because he was carrying auto parts in his vehicle which were to be taken to the first stop on his next delivery run. The Court also held that the factual record did not indicate that, as a matter of law, Hampton was outside the scope of his employment because “refreshment breaks do not necessarily take an employee outside the course and scope of his employment, but maybe reasonably incident to the employer’s business” and Hampton was authorized by his supervisors to take refreshment breaks and run personal errands during downtime. The Court distinguished Peters v. Pima Mercantile Co., 42 Ariz. 454, 27 P.2d 143 (1933), a case that held an employee running a personal errand during work hours was not within the scope of employment. The Court distinguished Peters because in Peters the employers had given specific direction to the employee about where he was to go and what he was to do, whereas in this case, the Appellees exercised less control over Hampton than what was exercised in Peters. The Court further distinguished Peters because in Peters the employer had no knowledge about the employee’s personal errand, whereas in this case the Appellees allowed Hampton to take refreshment breaks and conduct personal errands without obtaining their express permission.

Judge Swann authored the opinion; Judges Barker and Norris concurred.