e73ee9ab-337b-4fd4-8451-1cc1ec7e3827.doc 657 Lundberg v. State, Court of Appeals of NY, 1969 Should the State of NY be held liable under respondeat superior? Issue Reasoning Scope of employment means that he is doing something for the furtherance of the employer’s benefit or that the employer is exercising some control over his actions. He was not working in the scope of his employment; he was engaged in an independent personal activity over which the State had no control. Over the weekend, he was free do whatever he wanted and the State had no control over that. The fact that the state agreed to pay him mileage to travel to work does not mean that it was controlling his actions. And to hold it responsible for any tortious acts he commits off duty would be unfair. Rule Under Respondeat Superior, an employer will be liable for the negligence of an employee committed while the employee is acting in the scope of his employment. As a general rule, an employee driving to and from work is not acting in the scope of his employment. Or one that uses his car for business and was driving back from the last business opportunity. Facts ∏’s husband was killed by an employee of the State while that employee was traveling back to work from a weekend stay at home in Buffalo which is 80 miles away. The state had agreed to pay the employee mileage for his travel. Dissent Cardozo test: “if the work of the employee creates the necessity for travel, he is in the course of his employment, though he is serving some purpose of his own. His permanent station (home) at Buffalo being 80 miles away, created the necessity for him to travel. The fact that state was paying mileage, is further proof that the State recognized that his work necessitated travel. Held Procedure P argues D argues Reversed. Not acting in scope of his employment and can’t hold the state liable under Respondeat Superior just because it paid him mileage to come to work. Trial court found state liable and awarded $73K. Appellate Division affirmed unanimously affirmed. State appeals.