O’BOYLE v. AVIS RENT-A-CAR SYSTEM INC.

78 A.D.2d 431, 435 N.Y.2d 296 (1981)

LAZER, JUSTICE. The tragic vehicular accident underlying this action occurred when a 16-year-old employee at a gasoline station from which an Avis car rental agency was being operated drove in a rental car to pick up lunch, tarried briefly with his girlfriend passenger, and during the return collided with another automobile, killing two of its occupants and seriously injuring two others. In their ensuing action, the victims or their representatives alleged, inter alia, that the collision was caused not only by the conduct of the employee, Robert Bruno, but also by the direct and vicarious negligence of the defendant G. Roland House, who owned the gas station and car rental agency, and the defendant Avis Rent-A-Car System, Inc., the owner of the car. At the conclusion of a trial on the issue of liability, the jury rendered a two-fold verdict [against the defendants].

On March 17, 1974 Sunday sales of gasoline were still banned due to the Arab oil embargo and the House

station was open solely for the purpose of renting Avis cars. House arrived at 10:00 A.M., stayed for about an hour, and left Bruno, alone and in charge for the balance of the day. At about 1:30 P.M., Greg Adams, another young House employee, appeared at the station to work on his own car and agreed to "watch the station" while Bruno and his girlfriend went to pick up a pizza which would provide lunch for Adams and Bruno. Although Adams was under the impression that Bruno was going to walk up the street to get the pizza, he saw the latter take a key off a rack and drive away in an Avis car.

After the pizza was purchased at Leonardi's, an establishment variously estimated as being one-eighth of a mile to two or three miles from the station, Bruno drove to a nursery in Armonk where he and his girlfriend "talked for about twenty minutes." When they left the nursery, it was Bruno's intention to drive the girl home and return to work, but about a mile from her house and a mile from the House station the car went out of control, entered the opposing lane of traffic, and crashed head-on with a car driven by Adele O'Boyle. Mrs. O'Boyle and her infant daughter perished while her husband and mother suffered serious injuries.

At the trial, conflicting evidence was adduced as to who was authorized to operate Avis vehicles and where and for what purpose they could be driven. House testified that he instructed Bruno "not to take an Avis car off the property under any conditions" but that he could drive Avis cars on the service station property. Although House said that this instruction was given to all employees, when asked whether he had ever authorized any licensed employee to take Avis cars off the premises, he replied that he had done so in certain emergency situations such as jump-starting a car or digging a customer out of a snow bank. House maintained that such occurrences were relatively rare and he usually would accompany his employee in rendering aid to the customer, after which the employee would drive the disabled car back to the station.

This testimony was supported by the deposition of Greg Adarns, who was 14 years old and unlicensed when hired by House in 1972. Adams declared that his duties then were to "pump gas [and] rent Avis cars," that he had

authority from House to drive Avis cars to and from gas pumps on the premises, and that this was observed on a number of occasions by Avis representatives. Adams asserted that on his first day on the job House advised him that there was to be "[n]o driving the Avis cars off the property" and that the direction was repeated to him at least once a week for a period of two years. Because Adams had recommended Bruno for the job, he was present during the latter's job interview and heard House say that Avis cars were not to be driven off the premises. Adams recalled only one occasion during his 22 months of employment preceding the accident when an Avis car was taken off the premises by a House employee in order to make a service call.

Countervailing evidence was offered by another part-time House employee, Perry Palazzetti, who testified at the trial. Palazzetti was 16 years old and unlicensed when hired in July, 1973, although he obtained a license shortly afterwards. In February, 1974, after closing the station, he drove an Avis car off the premises, and was apprehended in Connecticut for speeding. Palazzetti remembered some 10 to 15 instances when House had instructed him to drive Avis cars on service calls "for both purposes, Mr. House's purposes and Avis purposes" and about 10 other occasions when House directed a particular licensed employee to take an Avis car out for a service call. He was not asked, however, whether House had ever admonished him or anyone else never to take an

Avis car off the premises.

We have deferred for last, consideration of the most troublesome issue in the case-whether Bruno's negligent act fell within the scope of his employment. Foreseeability is the State's current criterion for measuring an employer's liability for conduct of employees whose behavior is alleged to have taken them beyond the scope of their employment. In a respondeat superior context, foreseeability differs significantly from the " 'foreseeably unreasonable risk of harm that spells negligence' " (Bushey & Sons v. United States, 398 F.2d 167, 171) (2 Cir.). It is a foresight which must impel the prudent man to “'perceive the harm likely to flow from his long-run activity in spite of all reasonable precautions on his own part.' "

Plainly, then, the focus of our own inquiry must be upon the foreseeability of Bruno's conduct in taking a car to get his lunch. The jury knew that House was aware of Bruno's ability to drive and it was within the jury's discretion to believe testimony that Avis cars often had been utilized in the course of the service station business. An employer takes men and women "subject to the kind of conduct normal to such beings" (Riviello v. Waldron, 391 N.E.2d 1278) and, obviously, young persons subject to the kind of conduct normal to them. Whether it was foreseeable over the long run of House’s operation that in the course of activities in furtherance of his employer's interest an employee-even a young one-would take an Avis car to obtain lunch was a matter for the jury to decide. Considering the evidence and the inferences drawable from it, the jury's imposition of vicarious liability upon House cannot be deemed a defiance of rationality or contrary to the weight of the evidence.

[judgment affirmed.]