Business Associations, Pages 78–80

Wilson v. Joma, Inc.

Supreme Court of Delaware, 1988
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Facts:

DeMaio, a full-time employee of defendant, was given a half-hour lunch break each day. He was not compensated for this break, but could spend it in any way he chose. On the date of the incident, DeMaio ordered sandwiches for himself and a couple co-workers and went to pick them up. Most employees could not leave for lunch, but DeMaio's supervisory position gave him permission to. While picking up the sandwiches, he hit plaintiff with his motorcycle. Plaintiff then sued DeMaio's employer.

Procedural History:

Superior Court granted summary judgment to defendant, holding that when plaintiff was injured, DeMaio was not acting within the course and scope of his employment.

Issue:

Was DeMaio in the course and scope of his employment at the time of the accident?

Rule:

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[T]he following criteria [determine] whether an employee was in the scope of his employment:

  1. Conduct of a servant is within the scope of employment if, but only if:
    1. It is of a kind he is employed to perform;
    2. it occurs substantially within the authorized time and space limits;
    3. it is actuated, at least in part, by a purpose to serve 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.

Defendant's Argument:

DeMaio was not acting in the course and scope of his employment at the time of the accident because he was on his lunch break.

Plaintiff's Argument:

DeMaio was also getting sandwiches for those still at work. Thus, he was furthering his employer's interests and therefore in the scope of his employment.

Reasoning:

The conduct of an employee can be within the scope of employment if the employer's business motivates the employee to any appreciable extent, even if it was done partially for another purpose. While picking up sandwiches was not part of DeMaio's official duties, nor part of defendant's policy, it was its policy to minimize the number of employees leaving the premises during business hours. Just because he was on his lunch break does not mean that he could not have been acting within the scope of his employment or for his employer's benefit. A jury might properly find the dual purpose rule applicable here and that DeMaio was serving defendant's interests by getting his coworkers lunch.

Holding:

DeMaio could have been in the scope of his employment. Summary judgment reversed.

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