Torts—Course & Scope of Employment Includes Refreshment Break

Higginbotham v. AN Motors of Scottsdale, 627 Ariz. Adv. Rep. 11 (App. Div. I, February 2, 2012) (J. Swann)


Plaintiffs' decedent was a pedestrian run over and killed by the defendant driver. The trial court granted the driver's employer summary judgment finding the accident occurred at a time his employer had no control over him and therefore outside the course and scope of his employment. The Arizona Court of Appeals reversed finding a question of fact existed regarding the question of the employer's vicarious liability.

The defendant driver was an automobile parts delivery driver. He made three deliveries for his employer every morning and in between deliveries was permitted “free time” to seek refreshment or run personal errands, but he was required to finish the three deliveries every morning ending up back at his employer's shop and was paid the same salary regardless of what the deliveries entailed or how long they took. At the time he hit the decedent he was transporting a fender from a body shop back to his employer but was first going home to pick up some cigarettes. This the court of appeals created a question of fact as to whether the driver was employed throughout the morning or only during the times he was making a delivery.

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