Doctrine of Respondeat Superior Arizona
In Arizona, an employer may be held vicariously liable under the doctrine of respondeat superior for the negligent acts of its employee acting within the course and scope of employment. Baker ex rel. Hall Brake Supply, Inc. v. Stewart Title & Trust of Phoenix, Inc., 197 Ariz. 535, 540, 17, 5 P.3d 249, 254 (App. 2000); Restatement (Third) of Agency ("Restatement") 7.07(1) (2006).
For an employer to be held vicariously liable for an employee's negligent acts, the employee must be:
(1) subject to the employer's control or right of control, and;
(2) acting in furtherance of the employer's business. Robarge, 131 Ariz. at 283, 640 P.2d at 214; see also Baker, 197 Ariz. at 540, 17, 5 P.3d at 254 (stating that an employee's conduct falls within the scope of employment "if it is the kind the employee is employed to perform, it occurs within the authorized time and space limits, and it furthers the employer's business" (citing Smith v. Am. Express Travel Related Servs. Co., 179 Ariz. 131, 135-36, 876 P.2d 1166, 1170-71 (App. 1994); Ohio Farmers Ins. Co. v. Norman, 122 Ariz. 330, 331-32, 594 P.2d 1026, 1027-28 (1979))).
An employer's control or right to control is measured at the time of the employee's tortious conduct. Smithey, 189 Ariz. at 106, 938 P.2d at 501.
In other words, the employee generally must be subject to the employer's control or right of control at the time of the accident. Carnes v. Phoenix Newspapers, Inc., 227 Ariz. 32, 35, 10, 251 P.3d 411, 414 (App. 2011) (citing Robarge, 131 Ariz. at 283, 640 P.2d at 214).
"Whether an employee's tort is within the scope of employment is generally a question of fact. It is a question of law, however, if the undisputed facts indicate that the conduct was clearly outside the scope of employment." McCloud I, 217 Ariz. at 91, 29, 170 P.3d at 700 (quoting Smith, 179 Ariz. at 136, 876 P.2d at 1171 (internal citations omitted)); see also Restatement 7.07(2) ("An employee's act is not within the scope of employment when it occurs within an independent course of conduct not intended by the employee to serve any purpose of the employer.").
In Carnes v. Phoenix Newspapers, Inc., 227 Ariz. 32, 35, 10, 251 P.3d 411, 414 (App. 2011), the Court applied the "going and coming rule" and declined to adopt the "employee's own conveyance rule" in finding that a newspaper delivery person was not acting within the course and scope of her employment as she drove her vehicle home after completing her deliveries for the day. 227 Ariz. at 34, 1, 251 P.3d at 413.
In general, under the going and coming rule, "an employer is not liable for the tortious acts of his employee while the employee is going to or returning from his place of employment." Id. at 35, 11, 251 P.3d at 414 (quoting State v. Superior Court (Schraft), 111 Ariz. 130, 132, 524 P.2d 951, 953 (1974) (recognizing that reimbursement of a National Guardsman's travel expenses in the form of a mileage allowance did not bestow in the state a right of control)).
The employee's own conveyance rule is a workers' compensation principle that operates as an exception to the going and coming rule by providing that an employee's trip to and from work is within the course of employment if, as part of the job, the employee is required to bring along his or her own vehicle for use during the workday. Id. at 36, 15, 251 P.3d at 415 (citing 1 Arthur Larson & Lex K. Larson, Larson's Workers' Compensation Law 15.051, at 15-14 (2009)).
Although Carnes argued that similar principles had been embraced in Arizona workers' compensation cases, this court concluded that it "need not evaluate whether the employee's own conveyance rule is established in our workers' compensation law" because the court did "not find the rule to be applicable in a tort action to impose respondeat superior liability." Id. at 36 n.2, 16, 251 P.3d at 415 n.2.
Similarly, in Robarge, this court declined to apply a workers' compensation principle as an exception to the going and coming rule in a tort case. 131 Ariz. at 282-83, 640 P.2d at 213-14.