## Facts

- Plaintiffs were injured when their vehicle was struck by a vehicle driven by Paul J. Carr on Route 9 in Eagleswood Township on January 8, 1998.
- Carr was traveling from his home to the Tuckerton Municipal Court, where he served as a part-time municipal court judge.
- Plaintiffs sued Carr for negligence and sued Carr’s law firm, Murray and Carr, seeking to impose vicarious liability on agency/respondeat superior grounds.
- Carr’s vehicle was leased in his personal capacity, not in the firm’s or any corporate name.
- The lease payments and other vehicle expenses (gas, tolls, etc.) were paid from Carr’s corporate account, which was funded by distributions from the law firm after overhead.
- Income from Carr’s judicial position did not flow into the law firm’s business account or the separate corporate accounts.
- Carr had a cellular phone and claimed he made law-firm-related calls earlier that day, but the existence and accuracy of the call records were disputed.
- Carr admitted he was not on the phone at the time of the collision and had finished any calls before the accident.
- The Law Division granted summary judgment to plaintiffs (and Carr) on vicarious liability, holding the firm liable as a matter of law.
- The Appellate Division granted leave to appeal and reviewed the vicarious-liability ruling.

## Issues

1. Whether a law firm may be held vicariously liable under respondeat superior for a partner’s negligent driving while commuting to a separate, part-time municipal judgeship.
2. Whether payment of a partner’s vehicle expenses from an account funded by law-firm distributions, or earlier firm-related phone calls, places the commute within the firm’s scope of business for vicarious liability purposes.

## Decision

- The Appellate Division reversed the summary-judgment order imposing vicarious liability on Murray and Carr.
- The court held that, under existing New Jersey law, Carr’s negligent driving while traveling to his municipal court judgeship could not be imputed to the law firm.
- The court found no basis to treat Carr as acting in the firm’s service at the time of the accident, where he was commuting to separate governmental employment and was not then engaged in firm business.

## Legal Principles

- Respondeat superior requires that the tortfeasor be acting within the scope of the employer’s business at the time of the tort.
- The “going and coming” rule generally bars vicarious liability for torts committed while an employee is traveling to or from work, absent a recognized exception.
- A separate job relationship (here, a municipal judgeship) is not converted into the private employer’s business merely because the employee’s professional status may indirectly benefit the employer.
- Payment of a vehicle’s expenses using funds derived from employment or partnership distributions, without more, does not make a commute to separate employment an act within the scope of the first employer’s business.
- Alleged work-related communications occurring before the accident do not establish scope of employment when the communications had ended and the driver was not engaged in work activity at the time of the collision.

## Conclusion

The court rejected vicarious liability for the law firm because the accident occurred during Carr’s commute to distinct governmental employment and not while he was acting within the law firm’s scope of business under New Jersey’s going-and-coming and scope-of-employment rules.


O’Toole v. Carr, 786 A.2d 121 (N.J. Super. Ct. App. Div. 2001)