By: Geoffrey Cummings

Geoffrey K. Cummings, Esquire

It is unusual for an employer to find itself vigorously arguing that one of its employees, while on the employer’s premises and on the clock, was doing absolutely nothing that had anything to do with his employment.  However, that is precisely the situation Sprague Energy Corp. found itself in when it was sued on the theory that it should be held liable in damages for the conduct of one of its employees.  Sprague’s defense was that it should not be held vicariously liable because the employee’s alleged acts were not performed within the scope of his employment.

The lawsuit was brought by a female driver for a Maine-based transportation company.  She alleged that one of Sprague’s employees who worked at an oil storage terminal exposed himself and urinated directly in front of her as she waited to pick up a load of oil.  She further alleged that the same employee subsequently told his co-workers and hers that she exposed her breasts to him.  The driver’s lawsuit alleged that the employee’s act of exposing himself was intended to cause her emotional distress and that it, in fact, did.  She further claimed that his allegations about her exposing her breasts to him defamed her and caused her additional emotional distress.  She argued that the employer Sprague Energy Corp. should be held vicariously liable for the conduct of its employee. 

Sprague Energy’s defense was that it could not be held vicariously liable for its employee’s actions because his conduct was not within the scope of his employment.  In its ruling agreeing with Sprague’s position, the Court relied on precedent holding that the test for determining scope of employment is as follows:

(1)Conduct of a servant is within the scope of employment if, but only if:

(a)it is of a kind he is employed to perform;

(b)it occurs substantially within the authorized time and space limits;

(c)it is actuated, at least in part, by a purpose to serve the master, and

(d)if force is intentionally used by the servant against another, the use of force is not unexpectable by the master.

(2)Conduct of a servant is not within the scope of employment if it is different in kind from that authorized, far beyond the authorized time or space limits, or too little actuated by a purpose to serve the master.

Restatement (Second) of Agency § 228

The Plaintiff offered no evidence that would permit a finding that the employee was acting in the course and scope of his duties as an employee of Sprague at the time of the relevant events.  The Court found that there very definitely was no evidence that Sprague Energy employed the individual to engage in such acts of indecency nor that they were meant to serve Sprague Energy’s corporate interests.  The Court found that it was insufficient simply to raise such allegations without any evidentiary support of same.

The Court took specific notice of the fact that the employee was on duty, thus being paid, when the acts in question took place and that his work duties called for him to have contact with visiting truck drivers such as the Plaintiff.  It noted, however, that those allegations provided no basis for the Court to infer that he was hired for the purpose of performing any of the offensive acts or that there was any evidence that those acts were performed in the service of his employer.

With respect to the defamation claim, Sprague similarly argued that the “utterance of a false or defamatory statement” was not the type of conduct that Sprague hired the employee to perform and that it was not performed in order to serve Sprague.  The Court distinguished two other cases in which vicarious liability was established.  In each of those cases, the defamatory statements were made, even if unauthorized, for the purpose of furthering the employers’ interests.  The defamation was found to be a part of the employees’ work product and, thus, performed for the purpose of serving the employers’ interests.  Such was not the case with respect to the Sprague employee.

The legal framework necessary to defeat the claim of vicarious liability placed the employer in an odd situation.  It found itself arguing that its employee, while on premises, being paid, and interacting with a client’s driver, was not acting within the scope of employment.  By demonstrating that the conduct at issue was far removed from the employee’s normal duties, the employer was able to defeat the Plaintiff’s claim and Sprague Energy’s motion to dismiss was granted.