UNITED STATES DISTRICT COURT

DISTRICT OF NEW JERSEY

NANCY ALLARD,

 Plaintiff,

v.

CAROLYN EISENHAUER,

 Defendant,

Civil No. 11-3279 (NLH/KMW)

OPINION

CAROLYN EISENHAUER,

 Third-Party 

Plaintiff,

v.

CITY OF SEA ISLE CITY and 

SEA ISLE CITY BEACH PATROL,

 Third-Party 

Defendants.

APPEARANCES:

Robert A. Fineberg, Esquire 

Robert A. Fineberg, P.C. 

208 North Main Street 

Cape May Court House, New Jersey 08210

Attorney for Plaintiff Nancy Allard

Daniel J. Distasi, Esquire 

Green, Lundgreen, and Ryan, P.C.

1010 Kings Highway South, 

Bldg. 2 

Cherry Hill, New Jersey 08033

Attorney for Defendant/Third-Party Plaintiff Carolyn 

Eisenhauer
2

Robert P. Merenich, Esquire

Gemmel, Todd, and Merenich, P.A. 

767 Shore Road 

P.O. Box 296 

Linwood, New Jersey 08221 

Attorney for Third-Party Defendants City of Sea Isle City 

and Sea Isle City Beach Patrol

HILLMAN, District Judge

This matter comes before the Court by way of Third-Party 

Defendant City of Sea Isle City’s motion [Doc. No. 24] seeking 

summary judgment pursuant to Federal Rule of Civil Procedure 56 

with respect to Third-Party Plaintiff Carolyn Eisenhauer’s claim 

that it is liable for Plaintiff’s damages as Eisenhauer’s 

employer. The Court has considered the parties’ submissions and 

decides this matter pursuant to Federal Rule of Civil Procedure 

78. 

For the reasons expressed below, Third-Party Defendant City 

of Sea Isle City’s motion for summary judgment will be denied.

I. JURISDICTION

The Court exercises jurisdiction over this matter pursuant 

to 28 U.S.C. § 1332 based on diversity of citizenship and an 

amount in controversy in excess of $75,000. Plaintiff Nancy 

Allard (hereinafter, “Allard” or “Plaintiff”) is a citizen of 

the Commonwealth of Massachusetts. Defendant and Third-Party 
3

Plaintiff Carolyn Eisenhauer (hereinafter, “Eisenhauer”) is a 

citizen of the State of New Jersey. Therefore, complete 

diversity of citizenship exists between the parties. The amount 

in controversy is met because the allegations contained in 

Plaintiff’s complaint sufficiently demonstrate that the damages 

sought are in excess of $75,000, exclusive of interest and 

costs. 

After Plaintiff initiated suit against Eisenhauer, 

Eisenhauer filed a third-party complaint against the Sea Isle 

City Beach Patrol1 and Sea Isle City, New Jersey. For purposes 

of assessing whether complete diversity of citizenship exists 

between the parties, the Court need only consider the 

citizenship of Plaintiff and Defendant Eisenhauer and not that 

of Third-Party Defendant City of Sea Isle City (hereinafter, 

“Sea Isle City”) because, “it is not required that diversity of 

 

1 Although Eisenhauer named the Sea Isle City Beach Patrol 

as a Third-Party Defendant in this action, the proper ThirdParty Defendant is the City of Sea Isle City because the Sea 

Isle City Beach Patrol is an agency of the municipality which 

cannot be sued independently. See Schmidt v. City of Bayonne, 

2007 WL 1461152, at *1 n.1 (N.J. Super. Ct. App. Div. 2007) 

(noting that Bayonne Public Works Department was not a separate 

legal entity); Daniels v. Pemberton Tp. Water Dept., 2013 WL 

1316022, at *1 n.1 (N.J. Super. Ct. App. Div. 2013) (observing 

that Pemberton Township Water Department was not a separate 

legal entity, but merely a department of the Township).
4

citizenship exist between the third-party defendant and the 

plaintiff, or... between defendant, as third-party plaintiff, 

and the third-party defendant.” New Hampshire Ins. Co. v. 

Diller, 678 F. Supp. 2d 288, 292 (D.N.J. 2009) (citing Spring 

City Corp. v. Am. Bldgs. Co., 193 F.3d 165, 169 (3d Cir. 1999)).

II. BACKGROUND

The basic facts of this case are undisputed and relate to 

Plaintiff’s allegations that she sustained serious injuries 

after being struck by a car driven by Eisenhauer in the summer 

of 2009. That summer, Eisenhauer was beginning her second 

season as a lifeguard for the Sea Isle City Beach Patrol. 

(Third-Party Defendant’s Statement of Undisputed Material Facts 

[Doc. No. 24-1] (hereinafter, “Sea Isle City’s Statement”), ¶¶ 

1-2; Defendant and Third-Party Plaintiff’s Counter Statement of 

Undisputed Material Facts [Doc. No.25] (hereinafter, 

“Eisenhauer’s Statement), ¶¶ 1-2.) At that time, Eisenhauer was 

under the age of eighteen and held the status of a junior 

lifeguard.2 (Tr. of Eisenhauer’s Dep. [Doc. No. 24-2] 12:10-12, 

 

2 The record reflects, and Sea Isle City does not appear to 

dispute, that Eisenhauer was treated as a junior life guard by 

the Beach Patrol due to her age. It appears that Eisenhauer was 

approximately seventeen years old at the time of the accident 
5

26:7-17.) 

On June 27, 2009, the date when Plaintiff was struck, 

Eisenhauer was assigned to start her shift working on the 43rd

Street beach in the morning and then, come noon, she was to 

complete her shift working on the 65th Street beach. (Sea Isle 

City’s Statement ¶¶ 7-9; Eisenhauer’s Statement ¶¶ 7-9.) 

Eisenhauer was “expected” to find her own means of 

transportation from one beach assignment to the next. 

(Eisenhauer’s Statement, ¶¶ 6-7; Sea Isle City’s Statement, ¶ 

15.) On the date in question, Eisenhauer used her father’s3 2002 

Toyota Camry to travel from her morning assignment at the 43rd

Street beach to her afternoon assignment on 65th Street. (Sea 

Isle City’s Statement ¶ 9; Eisenhauer’s Statement ¶ 9.) While 

en route to her second assignment on 65th Street beach,4

Eisenhauer struck Plaintiff and knocked her over as Plaintiff 

was crossing Landis Avenue. (Plaintiff’s Complaint [Doc. No. 1] 

 

since she had a valid New Jersey driver’s license. 

3Eisenhauer’s father, Stephen Eisenhauer, was also named as 

a Defendant in this action but both Plaintiff and Defendant 

later stipulated to his dismissal. (Stipulation of Dismissal as 

to Stephen Eisenhauer [Doc. No. 27].)

4The City disputes that Eisenhauer was solely on her way to 

her next beach assignment at 65th Street, arguing that she may 

have also been on a personal errand to get lunch. (Sea Isle 

City’s Mot. 8) The Court addresses this contention infra. 
6

(hereinafter, “Pl.’s Compl.”), ¶ 3.) Plaintiff sustained 

serious and permanent physical injuries stemming from the 

accident. (Id. ¶ 5.) Based on these facts, Plaintiff asserts a 

negligence claim against Eisenhauer and demands judgment for 

compensatory damages, interest, and costs of suit. (Id.)

As set forth supra, after Plaintiff brought this action, 

Eisenhauer filed a third-party complaint against Sea Isle City 

claiming that as an employee of the Beach Patrol, she was acting 

as an agent and/or representative of Sea Isle City at the time 

of the subject accident. (Defendant and Third Party Plaintiff 

Complaint [Doc. No. 17] (hereinafter, “Eisenhauer’s Compl.”), ¶ 

4). Furthermore, Eisenhauer asserts that to the extent her 

conduct constitutes negligence, Sea Isle City is responsible for 

Plaintiff’s damages on the basis of vicarious liability. (Id. ¶ 

5). Sea Isle City subsequently answered Eisenhauer’s thirdparty complaint and raised several affirmative defenses, 

including that Eisenhauer was not acting within the scope of her 

employment at the time of the accident.5 (Third-Party 

Defendant’s Answer to Eisenhauer’s Complaint [Doc. No. 19] 

(hereinafter, “Sea Isle City’s Answer”) 2.) 

 

5 Sea Isle City also alleged several other affirmative 

defenses none of which discussed herein.
7

III. DISCUSSION

A. Summary Judgment Standard

Sea Isle City, as Eisenhauer’s employer at the time of the 

accident, now seeks the entry of summary judgment in its favor 

on Eisenhauer’s claims for defense and indemnification, based on 

its contention that she was not acting within the scope of her 

employment at the time of the accident. (Third-Party 

Defendant’s Motion for Summary Judgment [Doc. No. 24-1] 

(hereinafter, “Sea Isle City’s Mot.”) 6.) Summary judgment is 

appropriate where the Court is satisfied that “‘the pleadings, 

depositions, answers to interrogatories, and admissions on file, 

together with the affidavits, if any, show that there is no 

genuine issue as to any material fact and that the moving party 

is entitled to a judgment as a matter of law.’” Celotex Corp. 

v. Catrett, 477 U.S. 317, 322 (1986) (citing FED. R. CIV. P. 56). 

An issue is “genuine” if it is supported by evidence such 

that a reasonable jury could return a verdict in the nonmoving 

party’s favor. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 

248 (1986). A fact is “material” if, under the governing 

substantive law, a dispute about the fact might affect the 

outcome of the suit. Id. “In considering a motion for summary 
8

judgment, a district court may not make credibility 

determinations or engage in any weight of the evidence; instead, 

the nonmoving party’s evidence ‘is to be believed and all 

justifiable inferences are to be drawn in his favor.’” Marino 

v. Indus. Crating Co., 358 F.3d 241, 247 (3d Cir. 2004) (citing 

Anderson, 477 U.S. at 255).

Initially, the moving party bears the burden of 

demonstrating the absence of a genuine issue of material fact. 

Celotex, 477 U.S. at 323 (“[A] party seeking summary judgment 

always bears the initial responsibility of informing the 

district court of the basis for its motion, and identifying 

those portions of ‘the pleadings, depositions, answers to 

interrogatories, and admissions on file, together with the 

affidavits, if any,’ which it believes demonstrates the absence 

of a genuine issue of material fact.” (citation omitted); see 

also Singletary v. Pa. Dept of Corr., 266 F.3d 186, 192 n.2 (3d 

Cir. 2001) (“Although the initial burden is on the summary 

judgment movant to show the absence of a genuine issue of 

material fact, ‘the burden on the moving party may be discharge 

by “showing” –- that is, pointing out to the district court –-

that there is an absence of evidence to support the nonmoving 

party’s case’ when the nonmoving party bears the ultimate burden 
9

of proof.”) (citing Celotex, 477 U.S. at 325). 

Once the moving party has met this burden, the nonmoving 

party must identify, by affidavits or otherwise, specific facts 

showing that there is a genuine issue for trial. Celotex, 477 

U.S. at 324. A “party opposing summary judgment may not rest 

upon the mere allegations or denials of the... pleading[s.]” 

Saldana v. Kmart Cop., 260 F.3d 228, 232 (3d Cir. 2001) 

(internal quotations omitted). For “the non-moving party[] to 

prevail, [that party] must ‘make a showing sufficient to 

establish the existence of [every] element essential to that 

party’s case, and on which that party will bear the burden of 

proof at trial.’” Cooper v. Sniezek, 418 F. App’x 56, 58 (3d 

Cir. 2011) (citing Celotex, 477 U.S. at 322). Thus, to 

withstand a properly supported motion for summary judgment, the 

nonmoving party must identify specific facts and affirmative 

evidence that contradict those offered by the moving party. 

Anderson, 477 U.S. at 256-57.

B. Liability of Public Entities & Respondeat Superior

As Sea Isle City points out, pursuant to the New Jersey 

Tort Claims Act, a public entity, like the City, “is liable for 

injury proximately caused by an act or omission of a public 

employee within the scope of his employment in the same manner 
10

and to the same extent as a private individual under like 

circumstances.” N.J. STAT. ANN. § 59:2-2(a). The New Jersey 

Supreme Court has explained that “[t]he primary liability 

imposed on public entities is that of respondeat superior: when 

the public employee is liable for acts within the scope of that 

employee's employment, so too is the entity; conversely, when 

the public employee is not liable, neither is the entity.” Tice 

v. Cramer, 627 A.2d 1090, 1094. 

The New Jersey Tort Claims Act further provides that 

“[l]ocal public entities are ... empowered to indemnify local 

public employees consistent with the provisions of” the Act. 

N.J. STAT. ANN. § 59:10-4. Regardless “[w]hether the authority to 

indemnify originates under the common law, the Tort Claims Act 

or a specific statute, ... , the [indemnification] analysis 

initially focuses on what acts can be characterized as being 

‘within the scope of employment.’” Palmentieri v. City of 

Atlantic City, 555 A.2d 752, 756 (N.J. Super. Ct. Law Div. 

1988). 

Similarly, under the doctrine of respondeat superior, an 

employer can be held liable for the negligence of an employee 

which causes injury to a third party, so long as, at the time of 

the incident, the employee can be said to be acting within the 
11

scope of his or her employment. Carter v. Reynolds, 815 A.2d 

460, 463 (N.J. 2003) (citing Lehmann v. Toys ‘R’ Us, Inc., 626 

A.2d 445, 461 (N.J. 1993) (quoting Restatement (Second) of 

Agency § 219 (1958)). In order to hold an employer liable for 

an employee’s negligence based upon a theory of respondeat 

superior, one must prove: “(1) that a master-servant 

relationship existed and (2) that the tortious act of the

servant occurred within the scope of that employment.” Carter, 

815 A.2d at 463.

C. Scope of Employment Under New Jersey Law

As the New Jersey Supreme Court has recognized, “[s]cope of 

employment is a commonly cited principle, but its contours are 

not easily defined.” Carter, 815 A.2d at 465; see also 

Palmentieri, 555 A.2d at 756 (recognizing that “[o]ur courts 

have cited several authorities in attempting to define the 

concept.”). Although sometimes a malleable concept, in New 

Jersey, 

[c]onduct is generally considered to be within 

the scope of employment if, “it is of the kind 

[that the servant] is employed to perform; it 

occurs substantially within the authorized time 

and space limits; [and] it is actuated, at 

least in part, by a purpose to serve the 

master.” 

Carter, 815 A.2d at 465 (citing Di Cosala v. Kay, 450 A.2d 508, 
12

513 (N.J. 1982) (citing Restatement (Second) of Agency § 228 

(1957))). Conduct which falls within the scope of employment 

essentially 

refers to those acts which are so closely 

connected with what the servant is employed to 

do, and so fairly and reasonably incidental to 

it, that they may be regarded as methods, even 

though quite improper ones, of carrying out the 

objectives of employment.

Carter, 815 A.2d at 465 (citing Di Cosala, 450 A.2d at 513). 

IV. ANALYSIS

In order to establish that she is entitled to 

indemnification with respect to Plaintiff’s claims, Eisenhauer 

must demonstrate that a master-servant relationship existed 

between her and Sea Isle City, and that at the time of accident 

with Plaintiff, Eisenhauer was acting within the scope of her 

employment. See Palmentieri, 555 A.2d at 756; Carter, 815 A.2d 

at 463. As a threshold matter, the Court notes that Sea Isle 

City does not dispute that a master-servant relationship existed 

between Eisenhauer and the City, and challenges only whether 

Eisenhauer was acting within the scope of her employment at the 

time the accident occurred. 

Sea Isle City thus argues that summary judgment is 
13

appropriate on Eisenhauer’s third-party claims since no 

reasonable juror could conclude that Eisenhauer was acting 

within the scope of her employment under the Restatement because 

her conduct in driving a vehicle was not “of the kind” that she 

was employed to perform since Sea Isle City did not require 

lifeguards to drive from one beach to another. (Br. of Sea Isle 

City [Doc. No. 24-1] 7; see also Reply Br. of Sea Isle City 

[Doc. No. 26] 2-3) (emphasis added). According to Sea Isle 

City, Eisenhauer “cannot sustain any argument that she was 

expected to drive her vehicle as part of her job duties” because 

there is “no evidence that [she] was compelled by her employer 

to drive from one beach assignment to another[.]” (Reply Br. of 

Sea Isle City [Doc. No. 26] 3.) 

Several New Jersey Courts have recognized the inherent 

difficulty of determining when any employee’s tortious conduct 

is properly considered within his or her scope of employment. 

See, e.g., Roth v. First Nat’l State Bank of N.J., 404 A.2d 

1182, 1184 (N.J. Super. Ct. App. Div. 1979) (noting “[t]he term 

‘scope of employment,’... is an elastic one, and none of the 

commonly found definitions thereof can be relied upon with 

assurance either for negative or affirmative absolute criteria 

of liability.”); Carter, 815 A.2d at 465 (observing that term 
14

“is so devoid of meaning in itself that its very vagueness has 

been of value in permitting a desirable degree of flexibility in 

decisions.”) (citing W. Page Keeton, et al., Prosser and Keeton 

on the Law of Torts §§ 4, 69 at 21-23, 499-501 (5th ed. 1984)); 

Carter v. CPA, 783 A.2d 724, 726 (N.J. Super. Ct. App. Div. 

2001) (acknowledging that the scope of employment question is 

“simply framed but not as easily answered.”). As a result, New 

Jersey courts view scope of employment as a relatively malleable 

concept, resulting in outcomes that are largely fact specific to 

the circumstances of each case. See Roth, 404 A.2d at 1184.

As the parties here acknowledge, New Jersey courts 

analyzing this fact specific inquiry look to the factors set 

forth in the Restatement (Second) of Agency in order to answer 

the scope of employment question. Carter, 815 A.2d at 465 

(acknowledging that in New Jersey scope of employment is subject 

to analysis under Restatement sections 228 and 229). Under the 

Restatement, an employee’s conduct is generally considered to be 

within the scope of employment if it: (1) “is of the kind [that 

the servant] is employed to perform;” (2) “occurs substantially 

within the authorized time and space limits;” and (3) “is 

actuated, at least in part, by a purpose to serve the master.” 

Carter, 815 A.2d at 465 (citing Di Cosala, 450 A.2d at 513).
15

Accordingly, the Court must first consider whether 

Eisenhauer’s conduct was “of the kind” that she was employed to 

perform through her duties as a lifeguard for Sea Isle City. 

Sea Isle City’s primary contention here is that Eisenhauer was 

not acting within the scope of her employment because none of a 

lifeguard’s duties involve driving a vehicle. (Sea Isle City’s 

Statement ¶¶ 22-25; Sea Isle City’s Mot. 7.) In support of this 

argument, Sea Isle City points out that the May 2008 Training 

Manual, which sets forth the duties expected of Sea Isle City’s 

lifeguards, makes “no reference to driving, or the ability to 

drive[.]” (Sea Isle City’s Statement ¶ 22.) Sea Isle City 

further proffers that the training manual expressly states that 

the guard’s duty is solely to “protect and prevent individuals 

from incurring any injuries or mishaps in the water and on the 

beach.” (Id.); (see also Sea Isle City Training Man. § I(iii).) 

Thus, Sea Isle City focuses its argument primarily on the 

specific issue of driving a vehicle, asserting that driving a 

vehicle was not one of the required duties Eisenhauer was 

employed to perform, and therefore, her conduct was not “of the 

kind” she was employed to carry out. (See Sea Isle City’s Mot. 

6-7.) 

Eisenhauer counters that the relevant conduct here is not 
16

her particular method of transportation on the date of the 

subject accident, but, more generally, the relevant conduct is 

her travel between beaches — conduct which is “of the kind” she 

was employed to perform. According to Eisenhauer, by assigning 

her to two different stations for the morning and afternoon at 

two separate beaches, 22 blocks apart, during the same shift, 

the Sea Isle City Beach Patrol necessitated that she travel from 

one beach assignment to the next as part of her employment. 

(Eisenhauer’s Opp’n. to Third-Party Def.’s Mot. for Summ. J. 

[Doc. No. 25] (hereinafter, “Eisenhauer’s Opp’n.”)). 

In considering Sea Isle City’s argument that Eisenhauer’s 

conduct was not “of the kind” that she was employed to perform, 

New Jersey law recognizes that the Court may examine whether the 

actions at issue “are so closely connected with what the servant 

is employed to do, and so fairly and reasonably incidental to 

it, that they may be regarded as methods, even though quite 

improper ones, of carrying out the objectives of the 

employment.” Carter, 815 A.2d at 465 (citing Di Cosala, 450 

A.2d at 513). Sea Isle City’s argument focuses specifically on 

the narrow issue that driving a vehicle was not a required duty 

that Eisenhauer was employed to perform as a lifeguard. By 

contrast, Eisenhauer’s argument focuses more broadly on the 
17

necessity of traveling — regardless of the mode of 

transportation — between two beaches during the same scheduled 

shift in order to fulfill her other employment duties of 

guarding the beach and the water. 

Eisenhauer contends that the act of traveling from one 

beach to another, in and of itself, was so closely connected to 

her job duties and so fairly and reasonably incidental to the 

execution of those duties, that her actions were “of the kind” 

she was employed to perform and thus fall within the scope of 

her employment, even if her method of travel (i.e., driving) was 

not required by the City or was otherwise improper. This Court 

agrees. Upon examining the record here and the parties 

arguments, the Court finds that Sea Isle City has failed to 

demonstrate that Eisenhauer’s conduct was not: (1) closely 

connected to what she was employed to do, or (2) fairly and 

reasonably incidental to it. Therefore, as explained more fully 

below, Sea Isle City has fallen short of establishing that 

Eisenhauer’s her conduct was not “of the kind” she was employed 

to perform. 

The Sea Isle City Beach Patrol Assignment Sheet for the 

subject date, June 27, 2009, indicates that four lifeguards, 

including Eisenhauer, were assigned to stations on two separate 
18

beaches, thus necessitating them to travel, by some means, from 

one beach station to the next in order to continue their duties.6

(Sea Isle City’s Mot. at Ex. E.) The distances these lifeguards 

needed to travel between their respective beach assignments 

varied with distances of 10 blocks, 11 blocks, 21 blocks, and 

for Eisenhauer – the furthest distance – 22 blocks. (Sea Isle 

City’s Mot. at Ex. E.) Thus, one thing is plain — no matter the 

distance, each of these guards had to find some way to travel to 

their second beach assignment during the course of their 

scheduled shift. Therefore, it is readily apparent that in 

order for Eisenhauer to execute and perform the duties she was 

employed to carry out — guarding the beach and the water at both 

 

6 Importantly, Sea Isle City does not dispute that on the 

day in question, Eisenhauer was “required ... to move [from the 

43rd Street Beach] to the 65th Street Beach later in the day.” 

(Eisenhauer’s Counter Statement of Material Facts [Doc. No. 25] 

¶ 3; Sea Isle City’s Reply to Counter Statement [Doc. No. 26] ¶ 

3.) In response to Eisenhauer’s contention that the City 

“required her to travel from the 43rd Street Beach to the 65th

Street Beach prior to ... the day of the subject accident[,]” 

Sea Isle City only disputes this statement of fact only “to the 

extent that ‘travel’ in anyway suggests that Ms. Eisenhauer was 

required to use her vehicle[.]” (Sea Isle City’s Reply to 

Counter Statement ¶ 5.) Moreover, Sea Isle City readily admits 

that “[a]s a junior guard, [Eisenhauer] was expected to find her 

own means of transportation from one beach patrol assignment to 

the next.” (Id. ¶ 6) (admitting statement of fact “to the 

extent that Ms. Eisenhauer could walk, run, bike, skate board or 

drive to her next assignment.”). 
19

43rd Street and 65th Street that day — Eisenhauer had to be 

physically present at both beaches during her shift. 

Accordingly, she had to travel from the first beach to the 

second that day. Whether intentionally or unintentionally, Sea 

Isle City set up its shift schedule assignments in a manner 

which resulted in, and necessitated that, Eisenhauer travel 

between beaches to execute her duties.7 

Sea Isle City’s argument that Eisenhauer’s conduct was not 

“of the kind” she was employed to perform focuses solely on the 

narrow concept of whether driving was a required duty Eisenhauer 

was employed to perform. Sea Isle City contends that Eisenhauer 

is not entitled to indemnification because she chose to drive a 

vehicle as a matter of personal convenience, rather than any job 

required duty. This argument is unavailing, however, because it 

misunderstands the “of the kind” inquiry. For conduct to be 

considered “of the kind” an employee was employed to perform, 

the conduct need not be only that which is expressly required 

and authorized by the employer. Rather, conduct can satisfy the 

“of the kind” inquiry where it is “closely connected” and 

 

7 Again SIC does not dispute the fact that travel was 

required. The City simply challenges Eisenhauer’s chosen method 

of travel. See supra, n.6. 
20

“fairly and reasonably incidental” to what the employee is 

employed to do. See Carter, 815 A.2d at 465; cf. Palmentieri, 

555 A.2d at 756-57 (observing that the “[f]actors to be 

considered in determining whether a municipal employee's conduct 

falls within the ... scope of ... her employment are whether ... 

her conduct was primarily employment rooted, [and] was 

reasonably incidental to the performance of [her] employment 

duties,” among other things). 

Here, the record clearly demonstrates that the nature of 

the Beach Patrol’s procedures for scheduling and assigning 

lifeguards to different beaches, multiple blocks apart, as part 

of the same work shift necessarily required the lifeguards, 

including Eisenhauer, to travel between beaches in order to be 

present to perform her duties of guarding the beach and the 

water. There is sufficient evidence in the record to support 

Eisenhauer’s argument that the act of traveling between beaches, 

regardless of the mode of travel, was “closely connected” and 

“fairly and reasonably incidental” to her lifeguard’s duties and 

the execution thereof. Carter, 815 A.2d at 465 (citing Di 

Cosala, 450 A.2d at 513). Accordingly, Sea Isle City has failed 

to establish that Eisenhauer’s conduct was not “of the kind” she 

was employed to carry out. 
21

Next, the Court must determine whether Eisenhauer’s 

conduct occurred substantially within the authorized time and 

space limits of her duties as a lifeguard. For similar reasons 

as set forth supra, Sea Isle City’s contention that Eisenhauer’s 

duties as a lifeguard only encompassed the areas of the beach 

and water, is only partially accurate. (Sea Isle City’s 

Statement ¶ 23.) Although the majority of a Sea Isle City 

lifeguard’s duties take place on the beach and in the water, to 

the extent that Sea Isle City implemented an assignment schedule 

that necessitated the lifeguards to travel from one station to 

another, the spatial limits of their employment must 

correspondingly grow to include that course of travel. 

Moreover, so long as this course of travel is not, “far beyond 

the authorized space limits,” the lifeguards’ conduct will 

remain within the scope of their employment while in transit 

from one beach to the next. Carter, 815 A.2d at 465 (citing Di 

Cosala, 450 A.2d at 513.)

Eisenhauer argues here that by assigning one lifeguard to 

two geographically distant beaches, Sea Isle City obligates the 

assigned lifeguard to travel from her first beach assignment to 

her second beach assignment in order to fulfill her lifeguard 

duties for that day. (Eisenhauer’s Opp’n. 9.) In creating the 
22

need to travel by virtue of varied assignments, Sea Isle City 

thus expanded the authorized space limits of Eisenhauer’s job to 

include her route to the 65th Street beach. Further, Sea Isle 

City has not presented sufficient evidence to demonstrate that 

Eisenhauer took an obscure route while traveling to her second 

beach assignment.8 Accordingly, Sea Isle City has failed to 

 

8 Sea Isle City attempts to argue that Eisenhauer may have 

been on a personal errand to get lunch at the time of the 

accident. (Sea Isle City’s Mot. 8) Sea Isle City bases this 

contention on the mere fact that Eisenhauer testified at her 

deposition that she could not remember if she brought her lunch 

to work on June 27, 2009 and that she previously had driven to 

get lunch on other occasions. (Id.) Sea Isle City thus assumes 

that because Plaintiff cannot recall whether or not she brought 

her lunch, she must have been on a personal errand to get lunch 

at the time of the accident. 

However, Eisenhauer testified affirmatively that she was 

not going to get lunch at the time and was strictly reporting to 

her 65th Street beach assignment. (Eisenhauer’s Opp’n. ¶¶ 8-10.) 

On a motion for summary judgment, the Court cannot make 

credibility determinations or weigh the evidence, but rather, 

Eisenhauer’s evidence, as the non-moving party, is to be 

believed and all justifiable inferences are to be drawn in her 

favor. Marino v. Industrial Crating Co., 358 F.3d at 247 (3d 

Cir. 2004). Accordingly, drawing all reasonable inferences in 

favor of Eisenhauer, the Court finds that Sea Isle City has not 

demonstrated that Eisenhauer was on a personal errand to get 

lunch at the time of the accident or was otherwise taking an 

obscure route to her second beach assignment. 

Even if the Court assumed arguendo that Eisenhauer was on a 

personal errand to get lunch before arriving at the 65th Street 

Beach Station, it remains undisputed that Eisenhauer’s ultimate 

destination was her duty station on the 65th Street Beach and 

that she was traveling to 65th Street in order to complete her 

shift that day. “To relieve a master from liability for an act 

done by the servant who was engaged in his master’s work, the 

act done by such servant must have been entirely disconnected 
23

establish that Eisenhauer’s route of travel to 65th Street was 

not substantially within the authorized space limits of her job.

As to time, Sea Isle City has similarly failed to 

demonstrate that Eisenhauer’s conduct did not occur within the 

authorized time limits of her duties as a lifeguard. The Sea 

Isle City Beach Patrol requires each lifeguard to remain on duty 

from the beginning of their shift until the end of their shift, 

unless they are under the age of eighteen.9 (Sea Isle City 

Training Man. § II(I)(E)(19).) Lifeguards under the age of 

eighteen, like Eisenhauer was at the time of the accident, are 

required to take a half hour lunch break from either: (a) 12:30-

1:00 p.m.; or, in circumstances where there are two junior 

guards working at the same beach station, (b) 1:00-1:30 p.m. 

(Id. at § II(I)(E)(42).) 

 

from the service.” Efstathopoulos v. Federal Tea Co., 196 A. 

470, 472-73 (N.J. 1938). Where there is “proof ... that the 

social phase of the trip was merely incidental to, and not 

entirely disconnected from, the primary business phase thereof” 

a finding that the servant “made the trip for [her] master while 

acting within the scope of [her] employment” is fully justified. 

Assuming for purposes of this motion that Eisenhauer 

stopped to get lunch, such a stop off prior to arriving at 65th

Street is simply “incidental to, and not entirely disconnected 

from, the primary business” purpose of her trip since she was 

ultimately set to arrive at 65th Street to complete her shift.

9 Duty hours for lifeguards are from 9:20 a.m. to 5:00 p.m. 

on weekdays and until 5:30 p.m. on weekends. (Sea Isle City 

Training Man. § II(i)(E)(19) 7.)
24

The record indicates that the usual practice for lunch 

breaks when there were two junior guards present at the same 

beach station was for the junior guard who had most recently 

arrived to the beach station to remain on the stand, while the 

other junior guard who had been stationed there since the 

morning took the earlier of the two lunch break times. 

(Eisenhauer’s Dep. Tr. 32:11-24.) The accident between 

Eisenhauer and Plaintiff took place at approximately 12:09 p.m. 

while Eisenhauer was en route to her second beach assignment on 

65th Street. (The City’s Statement ¶ 2). At the earliest then, 

Eisenhauer’s lunch break would not have begun until 12:30 when 

she was expected to arrive at her second assignment on 65th

Street beach.10 It thus appears that there is evidence in the 

record which suggests that Eisenhauer remained on duty at the 

time she traveled to the 65th Street Beach, and could fairly be 

considered as acting within the authorized time limits of her 

employment when the accident occurred. Accordingly, Sea Isle 

City has not established that Eisenhauer’s conduct did not occur 

 

10 As stated supra, it was standard practice for the 

lifeguard who had most recently arrived on the stand to take the 

later of the two lunch breaks. It is therefore, most likely that 

Eisenhauer would have taken her lunch at 1:00 p.m. rather than 

12:30 p.m.
25

substantially within the authorized time and space limits of her 

employment as required under the Restatement.

Finally, the Court must assess whether Eisenhauer’s conduct 

was done, at least in part, to serve her employer, the Sea Isle 

City Beach Patrol. As stated supra, in assigning individual 

lifeguards to two different beach stations, multiple blocks 

apart, as part of the same shift, the Sea Isle City Beach Patrol 

necessitated that these lifeguards travel from their first 

assigned beach to their second assigned beach to fulfill their 

duties for the day. At the time of the accident with Plaintiff, 

Eisenhauer was traveling to her second beach assignment 

ostensibly under the direction of the Beach Patrol given the 

structure of the lifeguard shift assignments. Although it was 

her choice to drive a vehicle due to its convenience rather than 

to use some alternative means of travel (walking, running, 

biking, etc.), the evidence suggests that her conduct was done 

“at least in part, by a purpose to serve,” the Sea Isle City 

Beach Patrol in order to fulfill her shift assignment duties on 

65th Street that day.11 See Carter, 815 A.2d at 465 (citing Di 

 

11 To the extent that Sea Isle City argues that Eisenhauer 

was outside the scope of her employment because she was “engaged 

in [a] wholly unauthorized lifeguard activity i.e. texting,” at 

the time of the accident, Sea Isle City’s argument is futile. 

(Sea Isle City’s Reply to Eisenhauer’s Opp’n. [Doc. No. 26] 
26

Cosala, 450 A.2d at 513). 

Through its procedures for scheduling and assigning 

lifeguards to geographically distant beach assignments, the Sea 

Isle City Beach Patrol made it necessary for its lifeguards to 

travel between their beach assignments. As a result, this act 

of traveling became part of the duties that each lifeguard was 

employed to perform in order to ultimately guard the beach and 

the water. For the reasons set forth supra, Sea Isle City has 

failed to establish that Eisenhauer’s conduct of traveling to 

her second beach assignment on 65th Street, was not of the kind 

that she was employed to perform, was not within the authorized 

time and space limits of her duties as a lifeguard, and was not 

 

(hereinafter, “Sea Isle City’s Reply”), 3.) 

In New Jersey, courts have held that if an “act resulting 

in [the] injury complained of[,] was within [the] scope of [the] 

servant’s employment, [the] master will be liable, although 

[the] act was ... expressly forbidden by him[.]” Wright v. 

Globe Porcelain Co., 179 A.2d 11, 14 (N.J. Super. Ct. App. Div. 

1962). Even assuming that Eisenhauer was engaged in “wholly 

unauthorized” conduct, i.e. texting, while she was driving, such 

allegedly negligent activity would not be sufficient to remove 

her from the scope of her employment. As the court in Prado v. 

State specifically pointed out, even where an employer “does not 

authorize and indeed implicitly prohibits its employees from 

driving negligently or in violation of motor vehicle laws in the 

course of their employment... this does not mean that such motor 

vehicle operation is outside the scope of employment.” Cf.

Prado v. State, 908 A.2d 816, 824 (N.J. Super. Ct. App. Div. 

2006).
27

done to serve the Sea Isle City Beach Patrol. Having found that 

Sea Isle City has not met its burden with respect to any of the 

Restatement factors, the Court finds that Sea Isle City is not 

entitled to summary judgment on Eisenhauer’s third-party claims.

V. Notice to Sea Isle City: Contemplation of Summary Judgment 

in Favor of the Non-movant Caroline Eisenhauer

In deciding Sea Isle City’s motion for summary judgment on 

Eisenhauer’s claims for indemnification with respect to the 

scope of employment issue and denying Sea Isle City’s motion, 

the Court has considered in great detail the Restatement factors 

relevant to this issue. In doing so, it appears to the Court 

that there may be sufficient undisputed facts to establish that 

Eisenhauer was in fact acting within the scope of her employment 

at the time of the accident and thus is entitled to summary 

judgment on this issue. For reasons unknown to the Court, 

Eisenhauer did not cross move for summary judgment on the scope 

of employment issue. 

The Third Circuit previously acknowledged that “‘authority 

has developed to allow a court to grant summary to a non-moving 

party’” so long as the court provides the adversarial party with 

notice that it is considering a sua sponte summary judgment 

motion. Gibson v. Mayor and Council of City of Wilmington, 355 
28

F.3d 215, 222 (3d Cir. 2004) (citation omitted). Subsequently, 

in 2010, Federal Rule of Civil Procedure 56 was amended and now 

expressly provides that “[a]fter giving notice and a reasonable 

time to respond, the court may: (1) grant summary judgment for a 

nonmovant[.]” FED. R. CIV. P. 56(f)(1). Thus, under this Rule, 

the Court may properly consider whether Eisenhauer is entitled 

to summary judgment on the scope of employment issue for her 

indemnification claim even in the absence of a formal motion so 

long as Sea Isle City is provided with notice and a reasonable 

time to respond. 

Accordingly, the Court hereby gives notice to Sea Isle City 

that it is contemplating entering summary judgment in favor of 

the nonmovant, Eisenhauer, on the basis that Eisenhauer was 

acting within the scope of her employment at the time of the 

accident and is thus entitled to have her employer defend and 

indemnify her with respect to Plaintiff’s claims arising from 

that accident. Sea Isle City will have fourteen (14) days from 

the date of this Opinion to show cause why summary judgment 

should not be entered in favor of Eisenhauer on the issues 

outlined in this Opinion. Eisenhauer will have seven (7) days 

thereafter to reply to Sea Isle City’s response.12 

 

12 The Court will grant reasonable extensions of these 
29

VI. CONCLUSION

For the foregoing reasons, Third-Party Defendant the City 

of Sea Isle City’s motion for summary judgment is denied. An 

Order consistent with this Opinion will be entered. 

Dated: September 13, 2013 s/ Noel L. Hillman 

At Camden, New Jersey NOEL L. HILLMAN, U.S.D.J.

 

deadlines if good cause is shown, or by consent of the parties.