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Lundberg v. State

Citation. Lundberg v. State, 25 N.Y.2d 467 (N.Y. 1969)
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Brief Fact Summary.

John Sandilands (Mr. Sandilands) was involved in an automobile wreck with John Lundberg (Mr. Lundberg), killing Mr. Lundberg. Mr. Sandilands was driving to his job with the State of New York at the time and the Plaintiff – Respondent, Mr. Lundberg’s widow (Respondent) brought suit against the Defendant – Appellant, the State of New York (Appellant), under a respondeat superior theory.

Synopsis of Rule of Law.

As a general rule, an employee is not within the scope of his employment when driving to and from work.


Mr. Sandilands, an employee of the Appellant, was driving back to his job site from his residence in Buffalo when his car struck a car driven by Mr. Lundberg. Mr. Lundberg died as a result of the injuries sustained. The Respondent brought wrongful death and survival actions against Mr. Sandilands and the Appellant as Mr. Sandilands’ employer. The case against the State went to trial and the Respondent prevailed. The Appellate Division affirmed and the Appellant appealed.


Was Mr. Sandilands acting within the scope of his employment when the accident occurred so as to make the Respondent liable under the doctrine of respondeat superior?


No. Judgment reversed and claim against Respondent dismissed.
* In order to be within the scope of employment, an employee must be doing something in furtherance of the duties owed to his employer and the employer must be exercising, or be able to exercise control over the employee’s activities. An employee who uses his car in furtherance of his work is acting in the scope of his employment while driving home from his last business appointment. However, as a general rule an employee driving to and from work is not acting within the scope of employment because the element of control is lacking. The mere fact that the Appellant agreed to pay Mr. Sandiland’s travel expenses did not allow it the right of control.


Judge Burke stated that Chief Judge Cardozo established a test for liability in Matter of Marks v. Gray, [251 N.Y. 90, 93-94, 167 N.E. 181, 183], stating that an employee is in the course of his employer’s employment if the work of the employee creates the necessity for travel. Additionally, the fact that the Appellant paid Mr. Sandilands’ travel expenses indicates that the Appellant recognized Mr. Sandilands’ employment required travel and the use of his own automobile. The Appellate Division’s order should be affirmed.


The doctrine of respondeat superior is a form of vicarious liability whereby the employer is imputed with liability due to his relationship with his employee.

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