                                NOT FOR PUBLICATION WITHOUT THE
                               APPROVAL OF THE APPELLATE DIVISION
        This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the
     internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.




                                                         SUPERIOR COURT OF NEW JERSEY
                                                         APPELLATE DIVISION
                                                         DOCKET NO. A-5058-18T2

BEATRICE SAMOL,

          Plaintiff-Appellant,

v.

RYAN P. VANLANINGHAM and
JENNIFER A. VANLANINGHAM,

          Defendants,

and

PARTY CITY HOLDCO, INC.,

          Defendant-Respondent,

and

RYAN P. VANLANINGHAM and
JENNIFER A. VANLANINGHAM,

          Defendants/Third-Party
          Plaintiffs,

v.

PABLO SAMOL,
     Third-Party Defendant.
________________________________

            Submitted May 13, 2020 – Decided June 3, 2020

            Before Judges Whipple, Gooden Brown, and Mawla.

            On appeal from the Superior Court of New Jersey,
            Law Division, Somerset County, Docket No. L-0503-
            17.

            Stathis & Leonardis, LLC, attorneys for appellant
            (Nicholas J. Leonardis, of counsel and on the brief;
            Randi S. Greenberg, on the brief).

            Gallo, Vitucci & Klar, attorneys for respondent Party
            City Corporation i/s/h/a Party City Holdco, Inc.
            (Yolanda L. Ayala, on the brief).

PER CURIAM

      Plaintiff Beatrice Samol appeals from April 26, 2019 orders granting

defendant Party City Holdco, Inc. summary judgment and denying her motion

for summary judgment. We affirm for the reasons set forth in Judge Thomas

C. Miller's thorough and well-written twenty-six-page opinion.

      We summarize the facts, which are set forth in greater detail in the

judge's opinion.     One morning in March 2016, defendant Ryan P.

Vanlaningham left for work at his part-time job at Party City in Bridgewater.

A high school student, Vanlaningham was operating his mother's vehicle. The

store manager summoned him to work for a training meeting. He was going to




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                                      2
be compensated at the usual hourly rate for the training and scheduled to work

his regular shift the same day.

         On the way to work, Vanlaningham struck a vehicle owned by Pablo

Samol. Plaintiff was a passenger in Samol's vehicle and suffered injuries. She

filed a lawsuit initially naming Vanlaningham and his mother as defendants,

and then asserted a third-party complaint against Samol, and ultimately

amended her complaint to include defendant. Liability was the only disputed

issue.

         Defendant moved for summary judgment and plaintiff opposed the

motion and cross moved for partial summary judgment on liability. Following

oral argument, Judge Miller granted defendant's motion and denied plaintiff's.

He concluded defendant was not vicariously liable as respondeat superior for

Vanlaningham's conduct pursuant to the "going and coming" rule, and that

neither the "special mission" nor the "compelled activity" exceptions to the

rule applied because Vanlaningham was on a routine commute to work in a

personal vehicle the morning of the accident.

         Judge Miller concluded the accident occurred outside of Vanlaningham's

scope of employment because he was not fulfilling a job-related assignment

during the commute and had not arrived at work. The judge found the training

meeting was a part of the normal and routine tasks of Valaningham's



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                                        3
employment and the facts established defendant did not: 1) control the route

Vanlaningham took to work; 2) compensate him for the commute; or 3) direct

him to take a specific route to work or perform job duties during the commute.

      We apply a de novo standard of review to a trial court's grant of

summary judgment and apply the same standard as the trial court in

determining whether summary judgment is appropriate. Globe Motor Co. v.

Igdalev, 225 N.J. 469, 479 (2016); Templo Fuente De Vida Corp. v. Nat'l

Union Fire Ins. Co. of Pittsburg, 224 N.J. 189, 199 (2016). Pursuant to Rule

4:46-2, a court shall grant summary judgment when "the pleadings,

depositions, answers to interrogatories, and admissions on file, . . . show that

there is no genuine issue as to any material fact challenged and that the moving

party is entitled to a judgment or order as a matter of law." Disputed issues

that are "of an insubstantial nature" cannot overcome a motion for summary

judgment. Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 530 (1995).

      On appeal, plaintiff argues the judge misapplied the "going and coming"

rule and defendant is vicariously liable as respondeat superior because

Vanlaningham was an employee of defendant and under its control. Plaintiff

argues the "special mission" and "compelled activity" exceptions applied.

      Under the doctrine of respondeat superior, "an employer can be found

liable for the negligence of an employee causing injuries to third parties if, at



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                                       4
the time of the occurrence, the employee was acting within the scope of his or

her employment." Carter v. Reynolds, 175 N.J. 402, 408-09 (2003) (citing

Lehman v. Toys 'R' Us, Inc., 132 N.J. 587, 619 (1993)).

      "Generally, an employee who is 'going to' or 'coming from' his or her

place of employment is not considered to be acting within the scope of

employment" because a commuting employee is "deemed to be acting in their

own interests without constraint by the employer regarding the method or

means of the commute." Id. at 412, 413 (citing Mannes v. Healey, 306 N.J.

Super. 351, 353-54 (App. Div. 1997)). An employee's commute is considered

outside the scope of employment because "'employment is suspended from the

time the employee leaves the work place until he or she returns' . . . [and t]hat

'suspension' occurs because the element of 'control' is deemed lacking." Id. at

413 (citations omitted). Moreover, "the employer derives no benefit from the

commute." Ibid.

      The compelled activity exception contemplates "when an employer

directs or requires an employee to undertake an activity, 'that compulsion,

standing alone, brings an activity that is otherwise unrelated to work within the

scope of employment.'" Sager v. O.A. Peterson Constr. Co., 182 N.J. 156, 163

(2004) (quoting Lozano v. Frank De Luca Constr., 178 N.J. 513, 518 (2004)).

The purpose of this exception is to recognize that "an employer always retains



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                                       5
the power to expand the scope of employment by directing the employee to

engage in tasks outside of the employee's general job duties[,]" thereby

expanding respondeat superior liability. Id. at 164 (quotations omitted).

      Here, there was no credible basis to support the assertion defendant

controlled Vanlaningham's commute or that his commute fell within the scope

of his job duties. The facts did not demonstrate Vanlaningham's commute was

pursuant to a special mission; he was traveling to his regular place of

employment on one of his pre-scheduled workdays. For these reasons as well,

his drive to work on the day of the incident was not a compelled activity.

      Affirmed.




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