BRIDGES v. MORRIS et al
MEMORANDUM OPINION. Signed by Magistrate Judge Joel Schneider on 9/17/14. (js)
[Doc. No. 67]
THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY
JEFFREY A. BRIDGES,
MELISSA MORRIS, ET. AL,
Civil No. 12-385 (JS)
This matter is before the Court on the “Motion for Summary
Judgment” [Doc. No. 67] filed by defendant Cellco Partnership d/b/a
Verizon Wireless (“Verizon”). The Court received the response in
opposition from plaintiff Jeffrey A. Bridges (“Bridges”) [Doc. No.
79] which is joined by defendant State Farm Insurance (“State
Farm”) [Doc. No. 81].1 Verizon has also submitted a Reply. [Doc.
No. 82]. The Court exercises its discretion to decide Verizon’s
motion without oral argument. See Fed. R. Civ. P. 78; L. Civ. R.
78.1. For the reasons to be discussed, Verizon’s motion is GRANTED.
The key facts germane to Verizon’s motion are not in dispute.
This action arises from an automobile accident on August 16, 2010,
State Farm previously submitted its own motion for summary judgment
[Doc. No. 68] as did Enterprise Rent-a-Car Company of Maryland, LCC [Doc. No.
71]. The Court denied these motions without prejudice in order for Verizon’s
motion to be decided first. See Orders of April 1, 2014 [Doc. Nos. 77, 78].
in which defendant Melissa Morris struck plaintiff’s vehicle from
behind on the New Jersey Turnpike. See Compl. ¶ 6. Defendant Morris
was driving a vehicle owned by Verizon, her employer, but was not
authorized to be operating the vehicle when the accident occurred.
See Verizon’s Statement of Uncontested Facts ¶ 22. At the time of
the accident, Morris was an administrative assistant to Verizon
Wireless’ Networks Operations Director for the State of Georgia,
Jim Blake. See Dep. of Jim Blake (“Blake Dep.”) T5:13-6:17. As
part of her job responsibilities out of her Alpharetta, Georgia
office, Morris was a fleet coordinator for Verizon vehicles. See
Dep. of Melissa Morris (“Morris Dep.”) T6:19-25. In this role,
Morris managed vehicle registrations and licensing, orders for new
vehicles and periodically drove the Verizon vehicles to receive
regular maintenance. Id. T6:23-7:11.
Of particular importance to this case is what steps a Verizon
employee was required to take in order to sign out a “pool” or
“pull” vehicle -- a standby vehicle within the fleet that was not
assigned to any particular employee. According to the record, first
an employee must be placed on an “Approved List,” which required
participation in an online tutorial, fulfillment of a defensive
application which states that the employee has read the company’s
vehicle policies2 and manager approval. Morris Dep. T32:6-33:20;
Section 6.7 of this policy states:
Blake Dep. T10:8-17. Once placed on the approved list, an employee
could sign out the vehicle with a third-party security officer in
the fleet lot who controlled the keys and the security log. Morris
Dep. T136:7-20. The security log contained a column for explaining
testified that “some people didn’t write anything” in this column
and that sometimes she wrote “general” or left the space blank
when signing out a vehicle. Id. T36:22-23, T147:24-148:1. Morris
then presented these security logs to her supervisor but it is
unclear whether these logs were reviewed and by whom. Id. T148:1223.
On Friday, August 13, 2010, three days before the car accident
involving plaintiff, Morris requested bereavement time from her
supervisor, Jim Blake, to attend her grandmother’s funeral in
Connecticut. See Termination Form at 1. Though Morris originally
requested to leave work at 3:30 p.m. that day, at 11:53 a.m. she
emailed Blake to inform him that she had to leave for the airport
cancelled. See Email from Morris to Blake of Aug. 13, 2010.
Personal Use of a Work Vehicle is only allowed when the use is
incidental (see definitions above under “Incidental Use”) to the
job function for which the vehicle was assigned, or when the
employee has been approved for an exception to this rule by
obtaining an executed copy of Attachment D [a personal use
See Verizon Wireless Policy, Section 6.7. Additionally, when employees use pool
vehicles for personal use they must record the mileage driven and reimburse the
company accordingly. Id.
At some point that day, Morris instead took a Verizon pool
vehicle and drove it to Connecticut. Morris Dep. T110:16-111:5.
Three days later, on Monday, August 16, 2010, Blake received a
voicemail3 from Morris indicating that she had taken a Verizon
vehicle and had been involved in a car accident on the New Jersey
Morris why she did not fly to Connecticut as she previously
represented, Morris stated that she did not have enough money for
her flight and did not use her personal vehicle because her
insurance was cancelled. See Termination Form at 1-2. As a result
of this incident, Morris was terminated from her employment and
Verizon additionally pursued a criminal complaint against Morris
for theft by conversion. Morris Dep. T63:14-23.
In his second amended complaint, plaintiff alleges Verizon is
The following is the transcript of this voicemail message as
transcribed by the court reporter during Morris’ deposition:
Hi Jim. This is Melissa. I really do need to speak with you.
I just wanted to let you know that I made a poor decision and
I just wanted to (inaudible) permission to attend my
This morning at 1:24 a.m. I got in an accident on the New
Jersey Turnpike trying to get back to Georgia. I was able to
drive from there to Maryland. (Inaudible.) It’s [sic] going
to have the vehicle towed to a local dealership.
They said that you need to fill out (inaudible) and they are
forwarding over to me the incident report within the next
hour, so I will go ahead and forward the information to you.
I know that it’s grounds for termination, so just let me know
how I need to proceed. Thanks. Bye.
Morris Dep. T121:11-122:1.
theories, and was negligent in the “control of the [Verizon]
vehicle[s].” See Second Am. Compl. ¶¶ 16-18 [Doc. No. 42]. Verizon
contends that it is not liable under a respondeat superior or
negligent entrustment theory, and should not be held to owe a duty
to third parties for an employee’s use of a company vehicle outside
the scope of employment. See generally Def.’s Reply. Br.
appropriate where the court is satisfied that “the pleadings,
depositions, answers to interrogatories, and admissions on file,
together with the affidavits, if any . . . demonstrate the absence
of a genuine issue of material fact.” Celotex Corp. v. Catrett,
477 U.S. 317, 323 (1986) (internal citations omitted). Summary
judgment will not lie if the dispute about a material fact is
“genuine,” that is, if the evidence is such that a reasonable jury
could return a verdict in favor of the non-moving party. Anderson
v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). The materiality
of a fact turns on whether under the governing substantive law, a
dispute over the fact might have an effect on the outcome of the
suit. Id. The court must view all evidence and draw all reasonable
As a preliminary matter, both plaintiff and Verizon agree that New
Jersey law should apply. See Def. Br. at 10-13; Pl.’s Opp. Br. at 10 n.4. “A
federal court sitting in diversity must apply the forum state's choice of law
rules.” Johansson v. Cent. Garden & Pet Co., 804 F. Supp. 2d 257, 262 (D.N.J.
2011) (citing Klaxon Co. v. Stentor Elec. Mfg. Co., 313 U.S. 487, 496 (1941)).
As explained in the parties’ briefs, since the laws of the forum state, New
Jersey, and the laws of the foreign jurisdiction, Georgia, do not differ, the
court need not decide the choice-of-law issue. Lebegern v. Forman, 471 F.3d
424, 430 (3d Cir. 2006). Therefore, New Jersey law applies.
inferences in the light most favorable to the non-moving party.
See Startzell v. City of Philadelphia, 533 F.3d 183, 192 (3d Cir.
The moving party bears the initial burden of informing the
court of the basis for its motion and demonstrating the absence of
a genuine issue of material fact. Celotex, 477 U.S. at 323. Once
the burden is met, the burden shifts to the non-moving party to
“set forth specific facts showing that there [are] . . . . genuine
factual issues that properly can be resolved only by a finder of
fact because they may reasonably be resolved in favor of either
party.” Anderson, 477 U.S. at 250. The party opposing summary
judgment may not “rest upon mere allegation[s] or denials of his
affirmative evidence demonstrating that there is a genuine issue
for trial. Id. at 256-57.
Verizon asserts it is entitled to summary judgment because it
is not liable under a respondeat superior theory, a negligent
entrustment theory, or under a theory that Verizon had a “duty to
properly oversee and control the use of its fleet vehicles and
prevent the misuse of the same”. Pl’s Opp. Br. at 2. Each theory
of liability is addressed in turn.5
Plaintiff’s brief indicates he is only pursuing his third theory of
liability against Verizon. Pl’s Opp. Br. at 16-17. Plaintiff does not dispute
that vicarious liability does not apply (see Pl.’s Opp. Br. at 16) and did not
brief a negligent entrustment theory. Nevertheless, since these theories are
pleaded in the second amended complaint and are briefed by Verizon, the Court
will consider all three theories in the exercise of caution.
Under the doctrine of respondeat superior, “an employer can
be found liable for the negligence of an employee causing injuries
to third parties, if, at the time of the occurrence, the employee
was acting within the scope of his or her employment.” Carter v.
Reynolds, 175 N.J. 402, 408-09 (2003) (citing Lehmann v. Toys ‘R’
Us, Inc., 132 N.J. 587 (1993)). “To establish a master's liability
for the acts of his servant, a plaintiff must prove (1) that a
master-servant relationship existed and (2) that the tortious act
of the servant occurred within the scope of that employment.” Id.
“Generally, an employer is not liable for harm caused by an
employee in the use of a vehicle owned by the employer when the
use is not within the employee's scope of employment.” Pfender v.
Torres, 336 N.J. Super. 379, 393 (App. Div. 2001) (citing Gilborges
v. Wallace, 78 N.J. 342, 351 (1978)). “Liability for the employer
is only appropriate if the vehicle is being used by the employee
‘for the purpose of advancing the employer's business or interests,
as distinguished from the private affairs of the [employee].’” Id.
relationship existed between Verizon and Morris (Def.’s Br. at
15), plaintiff does not dispute that Morris was acting outside the
course and scope of her employment when the accident occurred. See
Pl.’s Opp. Br. at 16. Thus, no facts are in dispute and the
respondeat superior claim fails as a matter of law. Therefore,
summary judgment is granted as to this claim.
Next, the Court addresses whether Verizon is liable under a
entrustment of vehicles, “[t]he owner of an automobile may be
liable for injury from the operation of that car placed in the
hands of one he knows or ought reasonably to know is incompetent
to operate it so that the owner ought reasonably to anticipate
that in its operation injury will be done to others.” Mead v. Wiley
M. E. Church, 4 N.J. 200, 206 (1950) (citation omitted); see also
Huhn v. Estate of Altieri, C.A. No. 5515-05T1, 2008 WL 834177, at
*3 (N.J. Super. Ct. App. Div. Mar. 31, 2008) (same). There must be
“actual knowledge or reasonable cause to believe that the operator
is unqualified or incompetent.” Baran v. Clouse Trucking, Inc.,
225 N.J. Super. 230, 235 (App. Div. 1988).
The Court agrees with Verizon that there is no evidence in
the record suggesting that Verizon knew or had reason to believe
Morris was an unqualified or incompetent driver. See Def.’s Br. at
19. Plaintiff does not present any argument in their opposition
brief arguing otherwise. Therefore, summary judgment is granted in
favor of Verizon on this claim as well.
Last, plaintiff asserts a common law negligence claim that
Verizon “had a duty to properly oversee and control the use of
fleet vehicles and prevent the misuse of same by an administrative
assistant such as Morris.” Pl.’s Opp. Br. at 2. As will be
discussed, the Court finds this is not a viable theory of liability
under the facts presented herein.
In order to establish a claim for negligence under New Jersey
law, a plaintiff must prove: (1) duty of care; (2) a breach of
that duty; (3) proximate causation; and (4) injury. Weinberg v.
Dinger, 106 N.J. 469, 484 (1987). Plaintiff asks the Court to
impose a duty in favor of a third party on Verizon to ensure that
Verizon’s employees do not use its vehicles for unauthorized
purposes. In this regard, plaintiff argues Verizon negligently
oversaw its fleet of vehicles. Plaintiff contends that “it was
common knowledge” that Morris would use pool vehicles for personal
purposes including getting to and from work and picking up lunch.
See Pl.’s Counter Statement of Facts ¶¶ 12-15. In support of this
previously used a pool vehicle to drive to Connecticut. Id. ¶ 17.
Plaintiff argues that Morris was generally exempted from the rules
and regulations promulgated by Verizon regarding the use of pool
vehicles for personal use including filling out the necessary
paperwork, obtaining authorization and recording the number of
miles driven. Id. ¶ 30, 38, 39.
In response, Verizon argues that it was not negligent. Verizon
points to its written work vehicle policy which all employees were
required to sign before using a work vehicle which prohibited
unauthorized personal use of Verizon vehicles. Def.’s Br. at 21.
This policy required employees to seek prior authorization to use
a vehicle for personal use by filling out a form referred to as
“Attachment D.” Id.; see note 2, supra. Verizon further argues,
with no dispute from plaintiff, that if Morris had authorization
to use Verizon’s vehicle for personal use, Verizon would not be
liable under a respondeat superior theory. Therefore, Verizon
argues, it is illogical to hold it responsible for unauthorized
personal use. Id. at 21-22. Last, Verizon claims that even if a
duty was breached, as a matter of law the harm to plaintiff was
not foreseeable and liability should not be imposed. Id. at 22.
negligent, this issue is irrelevant to the Court’s ruling. Giving
plaintiff the benefit of the doubt as to the facts and inferences,
as it must in this context, the Court finds that there is a question
of fact whether Verizon was negligent. However, this finding is
not determinative. If Verizon did not owe a duty to plaintiff then
plaintiff has no cause of action against it, whether or not Verizon
was negligent. As noted in Hill, 75 N.J. at 143, what the issue
comes down to is whether there was a duty owed by Verizon to
plaintiff. The Court finds that no such duty exists and, therefore,
Verizon’s motion will be granted.
In support of its contention that Verizon owed plaintiff a
duty of care, plaintiff relies on Zinck v. Whelan, 120 N.J. Super.
432 (App. Div. 1972). In Zinck, the court considered whether
leaving a key in the ignition of an unlocked automobile was the
proximate cause of the plaintiff’s injuries that were suffered as
a result of a car accident involving the stolen vehicle. Reversing
prior case law which held that a vehicle owner did not have a duty
under the circumstances, the court found that fact questions
remained to be decided by the jury and that the defendant was not
absolved of liability as a matter of law. Id.; see also Hill v.
Yaskin, 75 N.J. 139 (1977) (imposing a duty on the owner of vehicle
that injured another when the vehicle was stolen after the owner
left it in a high crime area with the key inside).
Plaintiff’s argument that “[t]he case before this Honorable
Court is no different from that of Zinck” is misplaced. Pl.’s Opp.
Br. at 11. The rationale of Zinck focused on the court’s finding
that a “reasonably prudent motor car operator can today justly be
[regarding the car theft rates and the relation between car thefts
materially different from Zinck and Hill. Verizon did not leave
its keys in the ignition parked in a high-crime area and Morris
was not an anonymous thief on the street; instead, she was a
trusted employee who ordinarily had the authority to use Verizon’s
vehicles. As stated in Hill, “the most common test of negligence
 is whether the consequences of the alleged wrongful act were
reasonably to be foreseen as injurious to others coming within the
range of such acts.” 75 N.J. at 144. In contrast to Zinck, there
is no evidence to suggest that if Verizon’s vehicles were taken by
an employee for personal use an accident was likely or even
foreseeable. In this case, Morris, acting in violation of Verizon’s
work vehicle policy, took a vehicle without personal use approval
and drove it 1,000 miles away. The duty imposed by Zinck and Hill
does not apply under these circumstances. The vehicle Morris used
without permission was not left on the street with the key inside,
nor was the vehicle stolen by an anonymous thief. The mere fact
that Morris was not authorized to use Verizon’s vehicle did not
make her accident more or less likely. This contrasts with Zinck
and Hill where evidence existed for a jury to decide whether the
accident at issue was foreseeable.
Plaintiff argues that Morris frequently failed to comply with
Verizon’s sign-out policies and Verizon should have known that
Morris regularly misappropriated vehicles. Therefore, plaintiff
argues, Verizon had a duty to prevent unauthorized use. Morris
testified that she often misappropriated vehicles as did other
supervisor Jim Blake testified that he was unaware that Morris had
taken out the vehicle to attend her grandmother’s funeral and
thought Morris had only used the Verizon pool vehicles “less than
ten times” to drop the cars off for maintenance as she was required
to do. Blake Dep. T11:1-6. Additionally, Morris testified that she
did not inform Blake or others, including security personnel, that
she previously took a vehicle to Connecticut or used company
vehicles for other personal reasons such as getting lunch or
commuting to and from work when her car was in the repair shop.
Morris Dep. T102:17-25. In addition to not informing her superiors
of her personal trips, Morris’ voicemail to Blake following the
accident indicates that Morris knew that driving a vehicle without
authorization was not permitted and was grounds for termination.
See Morris Dep. T121:24-25; T100:14-101:12. Further, if Morris’
supervisors knew about the policy violations, it would seem logical
that the issue would have been addressed since, at the very least,
unauthorized use results in additional wear to Verizon vehicles
(particularly 1,000 mile trips) and subjects Verizon to additional
auto insurance liability.
Despite the parties’ focus on the issue, whether or not
Verizon negligently enforced its use policy is not determinative.
Verizon’s motion would still be granted. Under New Jersey law
Verizon did not owe plaintiff a duty to enforce its personal use
policy. In the absence of such a duty Verizon cannot be liable to
plaintiff. In Hanks v. McFarlane, the plaintiff was injured when
his car was struck by a G & G Electrical Supply van. C.A. No. 130208T3, 2009 WL 2454714 (N.J. Super. Ct. App. Div. Aug. 12, 2009).
The plaintiff appealed the summary judgment dismissal of his
complaint against G & G. Id. at *1. At the time of the accident,
the G & G employee “misappropriated” the vehicle, which was only
to be used for business purposes (pursuant to company policy), and
in the course of his “unauthorized use” permitted his cousin to
drive the van. Id. The Appellate Divison upheld the trial court’s
decision, finding that no matter who was driving the car the use
of the van was unauthorized and not within the scope of employment
and, therefore, G & G was not liable. Id. at *3.
Another relevant decision is Onugha v. Moralesa, a case
outside the employer-employee context. In Onugha a pedestrian was
hit by an unlicensed driver who was driving a borrowed vehicle.
C.A. No. 5359-05T1, 2007 WL 2376642 (N.J. Super. Ct. App. Div.
Aug. 22, 2007). The plaintiff-pedestrian sued the owner of the
vehicle, arguing that the owner was liable for the driver’s
negligence. Id. at *1. The court found that without alleging that
the driver was the owner’s employee (thus subjecting the owner to
vicarious liability) or that the owner negligently entrusted the
driver with the vehicle, the plaintiff failed to state a cause of
action. Id. at *2.
It is undisputed that Morris was using her vehicle for purely
personal purposes at the time of her accident. Imposition of a
duty on Verizon under these circumstances would be inconsistent
with New Jersey case law which does not hold an employer liable
when an employee uses a company vehicle outside the scope of his
or her employment. Gilborges v. Wallace, 78 N.J. 342, 351 (1978)
(“A master is not liable for harm caused by a servant in the use
of an instrumentality owned by the master when such use is not
within the servant's scope of employment. He is liable only if at
the time of the accident ‘the instrumentality is being used by the
servant for the purpose of advancing the employer's business or
servant.’”) (citing Restatement, Agency 2d, § 238 at 526 (1958));
see also Pfender v. Torres, 336 N.J. Super. 379, 393 (App. Div.
2001) (same). Indeed, Verizon makes a compelling point that since
it could not be held liable under the same facts if it authorized
Morris to take its vehicle for personal use (i.e., because the use
is outside the course and scope of her employment), it is illogical
to hold Verizon liable because her personal use was unauthorized.
See Def.’s Br. at 22. The fact that the use was unauthorized did
not make Morris’ accident any more or less likely or foreseeable.
If plaintiff’s theory is adopted, an employer could become an
“insurer” any time an accident occurs when its vehicle is being
used by its employee for personal use. No New Jersey case law
supports this expansion of an employer’s tort liability.
Even if the imposition of a duty on Verizon was appropriate,
Verizon’s motion would be granted because foreseeability is too
imposition of a duty to avoid injuring another is the probability
and foreseeability of the injury. Hill, 75 N.J. at 142-144 (“[t]he
risk reasonably to be perceived defines the duty to be obeyed; it
is the risk reasonably within the range of apprehension, of injury
to another person, that is taken into account in determining the
existence of the duty to exercise care.”). In order for a harm to
be foreseeable, the risk of injury to another must be “within the
range of apprehension.” Sander v. HR Trust Services., LLC, C.A.
No. 08-1383 (GEB), 2009 WL 3055368, at *2 (D.N.J. Sept. 21, 2009)
(citing Jerkins ex rel. Jerkins v. Anderson, 191 N.J. 285, 294
(2007)). “Establishment of the foreseeability of the risk of injury
requires the further determination of whether considerations of
fairness and policy warrant imposing a duty.” Carvalho v. Toll
Bros. & Developers, 143 N.J. 565, 574 (1996) (citing Carter
Lincoln–Mercury, Inc., 135 N.J. 135 N.J. 182, 194-95 (1994)).
In essence, plaintiff argues that because Verizon negligently
failed to enforce its work vehicle policy, Morris was able to
misappropriate the Verizon vehicle in Georgia and injure someone
in New Jersey. In response, Verizon argues:
The obvious reason for the regulations concerning the
securing of pool vehicles is to prevent the loss of
unauthorized use. There is no logical argument that
can be made that Verizon Wireless employees driving
company vehicles without authorization are more
likely to negligently operate said vehicles than
employees with such authorization. It is implausible
to conclude that any such internal policies or
procedures may fairly be interpreted as serving to
protect the public from a distracted or tired driver
or that failure to comply with such a policy or
procedure alone may have as a foreseeable result the
injury here involved.
Def.’s Br. at 23-24. Stated differently, Verizon points out that
whether or not Verizon negligently enforced its work vehicle policy
has no relation to Morris’ negligent driving. The Court agrees.
Morris, a qualified and licensed driver, could have injured another
driver whether or not she was using Verizon’s vehicle with prior
authorization. Plaintiff does not offer a scintilla of evidence
that Morris was anything other than a qualified driver. There is
no evidence to indicate it was foreseeable that Morris would be
involved in an accident, which is precisely why Plaintiff is not
pursuing his negligent entrustment claim. Thus, it cannot be said
that it was foreseeable that negligent enforcement of Verizon’s
work vehicle policy would result in a car accident. For these
reasons, even if imposition of a duty on Verizon was appropriate
(which it is not), the harm that came upon plaintiff was not
foreseeable as a matter of law.
Accordingly, for all the foregoing reasons, the Court grants
Verizon’s motion for summary judgment. The Court finds that Verizon
is not liable under a respondeat superior or negligent entrustment
circumstances Verizon did not owe plaintiff a duty of care to
enforce its personal use policy for its vehicles. In addition, as
a matter of law it was not foreseeable that if Morris took
result. An appropriate Order follows.
s/ Joel Schneider
United States Magistrate Judge
Dated: September 17, 2014
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