Nestree - RODA

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See Anderson , 18 Ariz. In this case, Ms. Store's job was to recruit foster parents. Because neither party disputes that Ms.

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Store's typical duties included traveling to various homes and delivering materials to other offices of the Navajo Nation on behalf of her employer Dkt. Store was clearly engaged in an act typical of the kind of work she was required to perform at the time of her accident. Under the second prong of Anderson , the act of an employee must occur substantially within the authorized time and space limits of the employment.

An employee's act, however, need not occur within the exact time or space authorized by the employer for it to be within the scope of employment.

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See Ohio Farmers Ins. Norman , Ariz. For example, in Love v. Liberty , a waitress was found to be acting within the scope of her employment when, after the end of her shift, she drove to her assistant manager's house in his car to pick up a microphone part for a band that was to perform at the restaurant that evening.

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Because the act was a clear benefit to the employer, the Court of Appeals concluded that it occurred sufficiently within the employment's authorized time and space even though the waitress was not acting at the request of her employer, it had not occurred on the restaurant's premises, and the worker was no longer on duty at the time. Similarly, in Anderson an employee who was in a car accident while driving from home to work before his workday had begun was found to be acting within the scope of his employment because he had hooked his employer's air compressor to the back of his pick-up truck the day before and was bringing it with him to work that day.

Anderson , 18 Ariz. In contrast, the Ninth Circuit in Hartzell , applying Arizona law, held that an accident involving an employee was not within the scope of employment because, inter alia , the accident occurred while the employee was on leave, she was not performing any work-related duties while traveling, and her employer had authorized her to use her own vehicle to travel for personal reasons.

Hartzell , F.

Navajo Nation offers condolences for Marie Neswood

Despite the Defendant's contention that Ms. Store's workday had ended at the time of the accident, Ms. Store indicated in the Accident Report that she is often required to make home visits in the evening as part of her job because many potential foster home candidates work during the day and are only available at night. She further stated that she believed the accident occurred within her normal work hours. Store's statements are also consistent with the affidavit submitted by Plaintiff Neswood-Gishey, Southwest Regional Director of NNDSS, in which she stated that "[v]ehicles were commonly taken to use after normal business hours.

Furthermore, the facts in this case are more similar to Love than Hartzell: Store was working on the day of the accident, which occurred less than two hours after she had left the office while she was en route to Window Rock Dkt. Store had not made the trip to Window Rock that evening, she would have made the same trip the following morning on behalf of her employer during normal work hours.

Because the record suggests that Ms. Store often performed work-related duties in the evening, driving an NNDSS vehicle to various locations, the accident in this case did occur substantially within the authorized space and time of Ms. Finally, an employee's act must be intended at least in part to serve the employer in order for it to be within the scope of employment.

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In Arizona, the test is whether, "at the time of the commission. While in general commuting to and from work "going and coming" does not fall within the scope of employment, Arizona has adopted the dual-purpose exception which applies "when, in addition to merely commuting, the employee performs a concurrent service for his employer. If the service performed "would have necessitated a trip by another employee if the commuting employee had not been able to perform it while commuting," then the commute falls within the scope of employment notwithstanding the employee's personal motives for the commute.

As the court in Anderson noted, the dual-purpose exception applies to Arizona repondeat superior law in addition to Arizona Workers Compensation law. Industrial Commission , 50 Ariz. As previously discussed, in Anderson , an employee who was involved in the accident while driving to work before his work hours had begun was found to be within the scope of employment because he was bringing his employer's air compressor to work with him that day. The court noted that if the employee had decided to no longer work for the employer, it would have had to send another employee to secure the air compressor and bring it to the job site.

The court further stated that "if the work of the employee creates the necessity for the travel, he is in the course of his employment, though he is serving at the same time some purpose of his own. Gray , N. Store stated that her purpose for leaving for Window Rock a day early was to visit a foster home applicant en route to Window Rock who was available that evening. She also intended to stay the night at her husband's house and deliver documents and meet with program staff at the central office of NNDSS the following morning in Window Rock.

Even accepting the Defendant's contention that Ms. Store's decision to leave early was partly motivated by her desire to spend the evening at her husband's house in Window Rock, the dual purpose exception applies in this case. Store's commute was indeed intended at least in part to benefit her employer. If Ms Store had not been able to perform the drive either that night or the following morning to Window Rock, another employee would have had to take the trip.

Store to use the tribal vehicle and drive the two and a half hour-trip to Window Rock the very next day for the same purposes. That the trip commenced early does not mean it was not in furtherance of her employer's interest. As the Arizona Court of Appeals has indicated, "the business trip at issue need not have been taken by [the same employee] at the same time that [the employee] took it but that someone would eventually have to make the trip for the company. Parsons , Ariz. Defendants rely on Clamor v. However, Clamor , a Ninth Circuit decision that applied Hawaii respondeat superior law, is distinguishable from the case at hand.

Clamor held that a driver was not within the scope of employment at the time of an accident because he was "not engaged in any errand for his employer, but was leaving work and free to do whatever he wished. The United States [the employer] derived no benefit from [his] activities once he stopped working.

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Store was engaged in an errand for her employer at the time of the accident and was not merely leaving the office for the day. Her employer was benefitting by her decision to drive to Window Rock that evening, a task she had specific authority to do the following day. In this case, unlike in Clamor , traveling is a common and essential part of Ms. Store's work function and involved more than simply going to and from the work office: Store was required to travel to various offices and visit potential foster homes as part of her job.

More analogous to the case at hand is Brown v. Although Brown applied New Mexico respondeat superior law, it followed the same test expressed in Anderson and was cited positively by the court in Anderson. The court in Brown reasoned that if the employee had not taken the papers home, another employee would have had to make a special trip at another time.

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Brown , P. Thus, the employee's travel furthered his employer's interest even though the employee was merely traveling home for work. In so finding, the court ruled that the dual purpose test had been met. Similarly in this case, if Ms. Store had not driven the documents to Window Rock that evening, she would have made, and was specifically authorized by her employer to make, the same trip the following day. Defendant further contends that Ms. Store could not have been acting within the scope of her employment at the time of the accident because NNDSS safety procedures enacted two days before the collision prohibited home visits to be made with tribal vehicles after 5: However, the policy referenced by Defendants appears to apply only to home visits made by employees after 5: In this case, visiting a potential foster home was not the sole purpose for Ms.

Store's trip to Window Rock: Furthermore, neither party disputes that keys to the tribal vehicles were left in drawers for employees to take and were not handed out by supervisors under a formal policy. Store in the Accident Report Dkt.


An employer can be liable for an act of an employee within the scope of his employment even when the employer has " expressly forbidden the act. Thus, even if her employer had expressly forbidden Ms.

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Store from taking a vehicle to perform any work-related duty after 5: Neswood served with the Judicial Branch from to She worked for the Office of the Chief Prosecutor and the Navajo Nation Police Department prior to being elected as a member of the 17th Navajo Nation Council from —, representing the community of St.

Michaels , who currently represents the community of St. Michaels, described her as a dedicated public servant who worked hard to better the lives of her neighbors and communities. Neswood married Nelson Neswood from Lower Greasewood and together they had eight children and resided in St. A planning meeting is scheduled for Dec. A rosary will be held on Dec. Michael Catholic Church at 7 pm, and a funeral mass will take place on Dec. Michael Indian School Chapel at 10 am.