MEMORANDUM OPINION

WILLIAM D. QUARLES, JR., District Judge.

Joseph Wood sued Dean Walton and KMGP Services Company, Inc. ("KMGP") for negligence, and State Farm Mutual Automobile Insurance Company ("State Farm") for breach of contract. For the following reasons, KMGP's motion for summary judgment will be granted in part and denied in part.1

I. Background2

KMGP operates a Baltimore facility that unloads cargo ships for a steel mill. Len Crescenzo Dep. 8:16-9:2, Sept. 1, 2010. In summer 2008, KMGP hired Walton, a Louisiana citizen, as a temporary crane operator in Baltimore. Dean Walton Dep. 6:12-13, 7:5-8, 19:22-20:4, Oct. 22, 2010. Walton worked the night shift, 7 p.m. to 7 a.m., but did not work every day during his Baltimore stay.3 His job was "[d]ischarging boat coal out of [a] ship and putting it on the bank." Id. 29:11-16.

While in Baltimore, KMGP supplied Walton with a hotel room, allowances for meals, a rental car and fuel. Len Crescenzo Dep. 18:21-20:3, 59:1-17. The company allowed Walton to drive the rental car for personal use, and told Walton not to take out insurance for the rental car. Id. 40:1-21; Dean Walton Dep., 31:11-16.

A written KMGP policy prohibited alcohol on the job,4 but the Baltimore facility was "kind of a drinking place."5 The company allowed employees to drink during company sponsored business or social functions "where the use of alcohol remain[ed] moderate." Policy at 2. Supervisors could be reimbursed by the company for taking employees out to happy hours. Len Crescenzo Dep. 51:5-8. Violations of the alcohol policy "[would] result in disciplinary action ..., up to and including termination." Policy at 6.

Despite the policy prohibiting drinking on the job, employees routinely drank alcohol during the night shift. Dean Walton Dep. 58:4-60:22. One employee regularly made and distributed "snow balls" — vodka or bourbon poured over shaved ice. Id. 58:4-60:1-9. Walton's shift supervisor, Mike Elias, knew of this custom and sometimes consumed snowballs while working. Id. 61:19-62:11. When a co-worker first offered Walton a snowball, Walton accepted, not knowing that it contained alcohol. Id. 59:9-15. Although Walton "wasn't into drinking like that," he "didn't want to hurt [the co-worker's] feelings." Id. 59:14-18. He "held [the snowball] for a while" then threw it away when the co-worker wasn't looking. Id. 59:18-19. Walton never took another bite of a snowball. Id. 60:22-61:6.

After the night shift, the crane operators, truck driver, and front-end loader regularly went to a bar called The Fort, and Elias would buy the first one or two rounds of drinks. Id. 34:21-35:9. Elias showed Walton how to get to the bar, and Walton joined his co-workers "a couple of times" to "get a couple beers." Id. 35:9-36:6. Walton would buy "the second round or the third round," and Elias "wasn't used to [anybody] else buying them." Id. 56:20-57:6.

On August 4, 2008, Walton joined his co-workers6 at The Fort because "it was at the end of the job" and he "had a lot of peer pressure." Id. 35:12-16. He stayed at the bar "[a] couple of hours," "had quite a few" beers,7 and drank at least one shot of Jagermeister, a liqueur. Id. 40:1-14-41:16. Although he knew he was drunk, Walton tried to drive from the bar to his hotel. Id. 42:1-44:3. Walton ran a red light and collided with Wood, who was turning through an intersection on a motorcycle. ECF No. 42 at 2. Wood was severely injured. ECF No. 48 at 1-2.8

On September 23 and November 13, 2009, Wood sued Walton for negligence, KMGP for vicarious liability and negligent entrustment and supervision, and others in the Circuit Court for Baltimore City. ECF Nos. 2, 6. Wood also sued his insurer, State Farm, for failing to honor his uninsured motorist coverage. Id. On December 18, 2009, the case was removed to this Court on the basis of diversity jurisdiction.9

On May 21, 2010, 2010 WL 2106461, the Court granted summary judgment to Wood on the issue of Walton's liability, finding that Walton had negligently injured Wood. ECF No. 42 at 8.

On August 26, 2011, KMGP moved for summary judgment. ECF No. 74. On September 12, 2011, State Farm opposed that motion. ECF No. 75. On September 16, 2011, Wood and Walton opposed the motion. ECF Nos. 76, 77. On October 3, 2011, KMGP filed its reply. ECF No. 79.

II. Analysis

A. Standard of Review

Under Rule 56(c), summary judgment "should be rendered if the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine dispute as to any material fact and that the movant is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(c). In considering a motion for summary judgment, "the judge's function is not ... to weigh the evidence and determine the truth of the matter but to determine whether there is a genuine issue for trial." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). A dispute about a material fact is genuine "if the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Id. at 248, 106 S.Ct. 2505.

The Court must "view the evidence in the light most favorable to ... the nonmovant, and draw all reasonable inferences in her favor," Dennis v. Columbia Colleton Med. Ctr., Inc., 290 F.3d 639, 645 (4th Cir.2002), but the Court also "must abide by the affirmative obligation of the trial judge to prevent factually unsupported claims and defenses from proceeding to trial," Bouchat v. Bait. Ravens Football Club, Inc., 346 F.3d 514, 526 (4th Cir. 2003).

B. KMGP's Motion

KMGP argues that it is entitled to summary judgment on the vicarious liability claim because, at the time of the accident, Walton was not acting within the scope of his employment, he lacked KMGP's authority to drive while intoxicated, and KMGP did not ratify his conduct. ECF No. 74-1 at 2. KMGP contends that Wood's negligent entrustment and supervision claims10 also must fail because he cannot show that the company knew or should have known that Walton would use the rented vehicle in a dangerous manner, or that KMGP failed to use proper care in hiring or training Walton. Id. at 2, 11.

The other parties counter that neither claim can be resolved by summary judgment because each involves a genuine dispute of material fact. ECF No. 75 at 7; ECF No. 76-1 at 4, 10/ ECF No. 77 at 4-5.

1. Vicarious Liability

Under Maryland law,11 an employer may be liable for acts "which his [employee] does with the actual or apparent authority of the [employer], ... the [employee] does within the scope of his employment, or ... the [employer] ratifies with the knowledge of all the material facts." See, e.g., Oaks v. Connors, 339 Md. 24, 660 A.2d 423, 426 (1995) (internal citation and quotation marks omitted).

a. Scope of Employment

Wood and Walton argue that Walton was acting within the scope of his employment during his entire stay in Maryland. ECF No. 76-1 at 6; ECF No. 77 at 15. Walton contends that, but for his employment with KMGP, he "would have [had] no reason to be in the State of Maryland" at the time of the accident. ECF No. 77 at 15. KMGP counters that no case supports "this unsubstantiated leap," and Maryland courts would likely follow other jurisdictions that have rejected "this `perpetual' scope of employment theory." ECF No. 79 at 5-8.

"Whether an ... individual's conduct falls within the scope of employment is normally a question for the jury." S. Mgmt. Corp. v. Taha, 378 Md. 461, 836 A.2d 627, 639 n. 6 (2003). "Nevertheless, where but one reasonable inference can be drawn from the undisputed material facts, the question is one of law for the court." Henderson v. AT & T Info. Sys., Inc., 78 Md.App. 126, 552 A.2d 935, 941 (Md.Ct. Spec.App.1989).

An employee's acts fall within the scope of his employment if "they were done by the [employee] in furtherance" of the employer's business, "and were such as may fairly be said to have been authorized by him."12 An act is "authorized" if it is "incident to the performance of the duties entrusted to [the employee] by the [employer], even though in opposition to his express and positive orders."13

"In applying this test, there are few, if any absolutes," Sawyer, 587 A.2d at 471, but Maryland courts have cited with approval the Restatements of Agency.14 Thus, to be within the scope of employment under Maryland law, conduct must (1) be of the kind the employee is hired to perform, (2) occur during a period "not unreasonably disconnected from the authorized period of employment," (3) take place in "a locality not unreasonably distant from the authorized area," and (4) be "actuated at least in part by a purpose to serve the [employer]." Sawyer, 587 A.2d at 471. Maryland courts also consider whether the employer "has reason to expect that such act will be done," or furnishes the "instrumentality by which the harm is done." Id. (internal citation and quotation marks omitted).

In cases involving negligent use of an automobile, Maryland courts have held that an employer may be vicariously liable if the employee is "engaged at the time in furthering the [employer's] business" and

Oaks, 660 A.2d at 426 (internal citation and quotation marks omitted). Thus, the Maryland Court of Appeals has found that a grocery store was not vicariously liable for the negligence of its employee while driving to work, in part because the employee "was not actually performing any of his designated job responsibilities at the time of the accident," and the company

Id. at 427. By contrast, the court has found a newspaper vicariously liable for the negligence of its reporter when the reporter was driving to a meeting in his own car, the newspaper instructed him to go to the meeting by a specific route, the reporter followed that route, and the newspaper paid for the fuel. Regal Laundry Co. v. A.S. Abell Co., 163 Md. 525, 163 A. 845, 847-48 (1933).15

"Driving to and from work is generally not considered to be within the scope of ... employment because getting to work is the employee's own responsibility and ordinarily does not involve advancing the employer's interest." Oaks v. Connors, 339 Md. 24, 660 A.2d 423, 427 (1995). Thus, "absent special circumstances, an employer will not be vicariously liable for the negligent conduct of his employee occurring while the employee is traveling to or from work." Dhanraj v. Potomac Elec. Power Co., 305 Md. 623, 506 A.2d 224, 226 (1986).16 "[T]he requisite `special circumstances' must admit some express or implied control over the vehicle or consent to its use in performing work duties." Barclay v. Ports Am. Bait., Inc., 198 Md.App. 569, 18 A.3d 932, 938 (Md.Ct.Spec.App. 2011) (emphasis in original).

In cases involving car accidents on business trips, courts applying Maryland law have determined the employer's liability by looking not to the overall purpose of the trip but whether the employee was engaged in his duties at the time of the accident. Thus, a software engineer was not acting in the scope of his employment when he struck another car while driving from New Jersey to Virginia to begin a year of graduate studies, even though his employer conditioned his employment on completing the studies and paid the tuition, moving expenses, and travel costs. Henderson, 552 A.2d at 941. The Maryland Court of Special Appeals emphasized that the employee was "not `on the job' at the time of the accident," and his business purpose was to "pursue a course of study," "not driv[e] his car for the benefit of [his employer]." Id. at 940.17

The Court has not found any Maryland case holding that a person acts within the scope of his employment every moment of a business trip — no matter how long — merely because the employer provides lodging and transportation. But courts in other jurisdictions that apply the Restatement of Agency have expressly rejected this notion. Applying Hawaii law,18 the Ninth Circuit has held that a D.C.-based civilian employee, assigned for "a few weeks" to work on a Navy ship moored in Hawaii, was not acting within the scope of his employment when he rear-ended another car while leaving the Navy base in his rental car "some distance from the ship." Clamor, 240 F.3d at 1216-17. Even though his employer had paid for the employee's lodging and rental car, the Ninth Circuit emphasized that the employee "was not working the entire time he was in Hawaii," was off duty when the accident occurred, was "not engaged in any errand for his employer," and his employer "derived no benefit from [his] activities once he stopped working ... and left for the day."19

Similarly, the Second Circuit has applied Connecticut law20 and rejected the argument that "persons on temporary duty are at all times acting solely for the employer's benefit, and are always within the scope of their employment." Cronin, 818 F.2d at 1066 (internal quotation marks omitted). In Cronin, the Second Circuit held that a Hawaii-based employee was not acting within the scope of his employment during an 88-day training assignment in Connecticut when he drove a rental car while intoxicated and collided with a motorcyclist several hours after his class had ended. Id. at 1064-65, 1068-69. Although his employer had provided the rental car, paid for his lodging and other per diem expenses, and allowed the employee to use the rental car for personal use, the Second Circuit emphasized that an employer's liability turns on whether the employee's conduct created a risk typical for that type of employment, and "different from those [risks] attendant on the activities of the community in general." Id. at 1068. Drunk driving, many hours after the work day, was not a risk incidental to attending training courses. Id.

Looking at the undisputed facts here, the Court can draw only one reasonable inference: Walton was not acting within the scope of his employment at the time of the accident. Walton was hired as a temporary crane operator to unload coal from a ship. Dean Walton Dep. 6:12-13, 7:5-8, 19:22-20:4, 29:11-16. Driving a car from a bar to his hotel was neither incident to these duties nor conduct he was hired to perform. See Sawyer, 587 A.2d at 470-71. The accident occurred while Walton was off duty and away from his work site.21 See id. Moreover, Walton's going to the bar and driving to his hotel did not in any way serve KMGP. Id.22

That KMGP provided a rental car and hotel room does not require a different result.23 Providing a car and lodging was more likely an "indication of the inconvenience" of working far from home, not "an indication that the employer considered all actions taken while driving that car to be within the scope of employment." See Clamor, 240 F.3d at 1217. Courts applying Maryland law to car accidents on business trips have looked to the employee's conduct at the time of the accident, not the overall purpose of the business trip. See, e.g., Henderson, 552 A.2d at 940-41.24 Moreover, the Court finds persuasive those cases from other jurisdictions that have rejected the concept of perpetual employment during a temporary assignment. See, e.g., Clamor, 240 F.3d at 1216-17; Cronin, 818 F.2d at 1066. Accordingly, the Court holds as a matter of law that Walton was not acting within the scope of his employment at the time of the accident.

b. Actual or Apparent Authority

Neither actual nor apparent authority is present here. These concepts arise in contexts when a person represents, or purports to represent, another "in contractual negotiations or transactions akin thereto."25 Wood's injuries did not arise from such transactions with Walton. Thus, neither actual nor apparent authority can be the basis of Wood's vicarious liability claim.26

c. Ratification

Ratification, another agency concept, is also inapplicable. "When the agent has no authority to do an act, the principal may later ratify the act, giving it the same effect as if it had been originally authorized."27 As stated above, Walton was not acting as KMGP's agent when he negligently caused the accident. See supra Part II.B.1.b. Thus, there is no evidence that his conduct was later ratified by the company.

For all these reasons, the Court will grant KMGP's motion for summary judgment on Wood's vicarious liability claim.

2. Negligent Entrustment

Maryland has adopted the Restatement (Second) of Torts approach to negligent entrustment,28 which requires Wood to show that (1) KMGP made its car available to Walton, (2) KMGP knew or should have known that Walton was likely to use the car "in a manner involving risk of physical harm to others," and (3) Wood was within the class of people KMGP expected or should have expected to be endangered by Walton's use of the car. See Moore v. Myers, 161 Md.App. 349, 868 A.2d 954, 964, 966 (Md.Ct.Spec.App.2005). KMGP argues that Wood has presented no evidence that the company knew or should have known that Walton was likely to use the rental car in a dangerous manner. ECF No. 74-1 at 9.

"There is no litmus test to determine whether a supplier had the requisite knowledge of an entrustee's propensity to use the entrusted chattel in an improper or dangerous manner."29 The entrustor is "only responsible for the [entrustee's] subsequent negligent acts ... if a reasonable man could have foreseen the negligent acts." Curley v. Gen. Valet Serv., Inc., 270 Md. 248, 311 A.2d 231, 241 (1973). "[W]hen the foreseeability of harm stems from past conduct, it must be conduct so repetitive as to make its recurrence foreseeable." Id.

In the case of drunk driving, "[n]o quantitative line can be drawn with respect to the amount of knowledge which an owner must have of a driver's propensity for drinking to make the owner negligent in entrusting a motor vehicle to him."30 "All of the circumstances of the case must be considered." O'Brien, 140 F.Supp. at 311 (quoted in Curley, 311 A.2d at 239).

Here, the record shows that KMGP employees regularly went to a bar after the night shift and had several rounds of drinks, a KMGP manager customarily bought the first one or two rounds, Walton worked the night shift for 28 days and went to the bar "a couple of times" to "get a couple beers," he drove himself in the rental car provided by KMGP, and Walton had gotten drunk at the bar before causing the accident with Wood. Dean Walton Dep. 19:22-20:3, 34:21-36:6, 40:1-44:3. Emphasizing Walton's use of the word "couple," KMGP argues that nothing "suggests that Walton had ever overindulged" before the day of the accident or otherwise put the company on notice that he "should not have been entrusted with a vehicle." ECF No. 74-1 at 10; ECF No. 79 at 12-13.

Viewing the evidence in the light most favorable to the non-moving parties, a reasonable jury could conclude that Walton had been to The Fort two or more times31 in 28 days, and had drunk two or more beers on each occasion before driving himself to the hotel in the rental car.32 How quickly he drank on those visits, and what effect the alcohol had on his ability to drive, remains unclear. Thus, the Court cannot say, as a matter of law, that KMGP could not have known that Walton would have driven the rental car in a dangerous manner.33 The Court will deny summary judgment on the negligent entrustment claim.

3. Negligent Supervision

"To establish a cause of action for negligent hiring or supervision, the plaintiff must show that [his] injury was caused by the tortious conduct of an employee, the employer knew or should have known that the employee was capable of inflicting harm of some type, the employer failed to use proper care in hiring or training the employee, and the employer's breach was the proximate cause of the plaintiff's injury." Williams v. Cloverland Farms Dairy, Inc., 78 F.Supp.2d 479, 484 (D.Md. 1999) (applying Maryland law).

KMGP argues that Wood's negligent supervision claim lacks factual support because there is no evidence that KMGP failed to use proper care in hiring or training Walton.34 Because Wood did not respond to this argument, he has abandoned the negligent supervision claim.35

III. Conclusion

For the reasons stated above, KMGP's motion for summary judgment will be granted in part and denied in part.