Ovecka v. Burlington Northern S.F. Railway

• Decision Date: 09 July 2008
• Docket Number: No. 26,449.,26,449.
• Parties: David OVECKA and Janice Ovecka, as Co-Personal Representatives of the Estate of Angela Ovecka, Plaintiffs-Appellants, v. BURLINGTON NORTHERN SANTA FE RAILWAY COMPANY, Defendant-Appellee.
• Court: Court of Appeals of New Mexico

194 P.3d 728

2008 NMCA 140

145 N.M. 113

David OVECKA and Janice Ovecka, as Co-Personal Representatives of the Estate of Angela Ovecka, Plaintiffs-Appellants, v. BURLINGTON NORTHERN SANTA FE RAILWAY COMPANY, Defendant-Appellee.

No. 26,449.

Court of Appeals of New Mexico.

July 9, 2008.

Certiorari Granted, No. 31,232, October 6, 2008.

Rodey, Dickason, Sloan, Akin & Robb, P.A., Bruce Hall, W. Mark Mowery, Theresa W. Parrish, Edward Ricco, Jocelyn Drennan, Albuquerque, NM, for Appellants.

Atkinson & Thal, P.C., John S. Thal, Michael Kaemper, Elizabeth Losee, Albuquerque, NM, for Appellee.

Modrall, Sperling, Roehl, Harris & Sisk, P.A., John R. Cooney, Emil J. Kiehne, Albuquerque, NM, for Association of Commerce & Industry of N.M., Amicus Curiae.

OPINION

KENNEDY, Judge.

{1} Plaintiffs appeal from the district court's grant of summary judgment in favor of Defendant Burlington Northern Santa Fe Railway Company (BNSF) on Plaintiffs' claims of vicarious and direct liability for negligence. Plaintiffs' daughter, Angela Ovecka, was killed in an automobile collision with BNSF's employee, Kenneth Long. Long was highly intoxicated at the time of the accident. Both factually and procedurally, Long had "left" his employment on the afternoon preceding the collision, though he was scheduled to work the following morning. Applying our standard of review viewing the facts in the light most favorable to Plaintiffs, we hold that the record does not create a question of fact as to whether Long was acting in the course and scope of his employment sufficient to avoid summary judgment based on vicarious liability or to establish, as a matter of law, a question of sufficient negligence to allow Plaintiffs' direct liability claim to survive. We affirm.

FACTS AND PROCEDURAL BACKGROUND

{2} The facts in this case are not in dispute. Long was a member of a mobile surfacing gang employed by BNSF. He had previous problems with alcohol, including a previous DWI conviction in 1997 and inpatient treatment for alcoholism through self-referral to BNSF's confidential employee assistance program in 1997, following the DWI. In 1999, after he reported for work drunk at 8:30 in the morning with a blood alcohol content at 0.226, BNSF suspended Long and again sent him to treatment. Between 1999 and 2000, BNSF subjected Long to random alcohol tests at work, which he passed. In 2003, Long's supervisor smelled alcohol about Long's person on one or two occasions, and in that year a co-worker also reported to a foreman that Long had an odor of alcohol. Word of these incidents was not relayed up the supervisory ladder, and BNSF took no personnel action with regard to Long. In 2002, Long was arrested for DWI and was convicted in 2003; he lost his driver's license as a result but did not report its revocation to BNSF.

{3} Long primarily worked in an area between Belen and Grants, New Mexico. As a result, he had to travel to get to his job sites. For employees who drove themselves to work, BNSF paid mileage between work sites. Employees were also paid regular hourly pay to travel from destination to destination. In addition, employees were paid a "weekend travel allowance" for one trip home from the work site each weekend. BNSF maintained hotel rooms in Grants and Belen for its employees who lived more than thirty miles from a job site. By written company policy, BNSF employees were supposed to inform their foremen that they needed a hotel room, and a foreman would make the reservations, though employees often made their own reservations.

{4} On Friday, August 1, 2003, Long was working on railroad tracks in the Rio Puerco valley west of Los Lunas when he was notified that he was expected at a site near Grants to begin work on a rail grinder at 5:00 a.m. the next morning. Had Long driven from Rio Puerco to the hotel in Grants and thence to the Saturday job site, BNSF would have paid mileage from his work site to the hotel and from the hotel to the August 2nd work site. If he went home after the August 2nd job and returned to work the next week, he would also have been eligible for a weekend allowance, which was calculated on a zip-code-to-zip-code basis.

{5} Although Long did not always drive to the places where he worked, this time he had driven his sister's uninsured car to the Rio Puerco work site on the morning of August 1st and left for Grants when his work was done, between 3:30 and 4:00 p.m. He made no reservations for a room at the hotel in Grants.

{6} Once in Grants, Long picked up groceries and a 12-pack of beer and then continued heading west toward Gallup, in the opposite direction from the work site. He took the groceries to family members (whom he was restrained from contacting) in Thoreau. He arrived at a cousin's house near Gallup at about 5:30 p.m. Long was extremely distraught concerning his estrangement from his family, and he cried and prayed with his cousin. At about 7:00 p.m., he left his cousin's house, intending to visit his father before heading to Grants. At about 7:30 p.m., Long's sister and brother-in-law saw Long enter I-40 at the Manuelito interchange west of Gallup. At about 9:00 p.m., Long was spotted driving erratically eastward back toward Grants when his car crossed the median and pursued a path straight into westbound traffic, colliding head-on with the car driven by Ovecka. A witness reported seeing no brake lights prior to the crash. Both Ovecka and Long were killed in the crash. In all, Long's travels took him about 85 miles west of Grants and back, with the crash occurring 35 miles west of Grants as he traveled east from the Gallup area. Subsequent toxicology indicated Long's blood alcohol content to be 0.362.

{7} Plaintiffs' suit against BNSF alleged that at the time of the accident Long was an employee acting in the scope and course of his employment. An additional count alleged direct negligence in that BNSF "knew or should have known of Long's history of chronic alcohol abuse" and that BNSF had breached a "duty of due care to persons such as ... Ovecka who could be expected to be traveling on the same public highways" as Long. The complaint further alleged that BNSF "required Long to drive himself to job assignments ... when it might reasonably be expected that Long" would be intoxicated, "given [Long's] alcoholic history and unsuccessful alcoholic rehabilitation." The district court granted summary judgment to BNSF, and Plaintiffs appeal.

STANDARD OF REVIEW

{8} We review the district court's grant of summary judgment de novo. Self v. United Parcel Serv., Inc., 1998-NMSC-046, ¶ 6, 126 N.M. 396, 970 P.2d 582. "Summary judgment is proper when there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law." Ciup v. Chevron U.S.A., Inc., 1996-NMSC-062, ¶ 7, 122 N.M. 537, 928 P.2d 263. On review, "we examine the whole record for any evidence that places a genuine issue of material fact in dispute," Rummel v. Lexington Ins. Co., 1997-NMSC-041, ¶ 15, 123 N.M. 752, 945 P.2d 970, and we view the facts in a light most favorable to the party opposing the motion and draw all reasonable inferences in support of a trial on the merits. Silverman v. Progressive Broad., Inc., 1998-NMCA-107, ¶ 7, 125 N.M. 500, 964 P.2d 61.

DISCUSSION

BNSF is Not Vicariously Liable for Ovecka's Death

{9} For liability to be imposed upon BNSF in respondeat superior as Long's employer, Ovecka's injury must have been inflicted by Long when Long was acting in the course and scope of his employment with BNSF. Ocana v. Am. Furniture Co., 2004-NMSC-018, ¶ 29, 135 N.M. 539, 91 P.3d 58; see Medina v. Graham's Cowboys, Inc., 113 N.M. 471, 475, 827 P.2d 859, 863 (Ct.App. 1992). Generally, whether an employee was acting within the scope of his employment is a question of fact for the jury, as Plaintiffs urge. McCauley v. Ray, 80 N.M. 171, 180-81, 453 P.2d 192, 201-02 (1968). But when no facts are in dispute and the undisputed facts lend themselves to only one conclusion, the issue may properly be decided as a matter of law. Medina v. Fuller, 1999-NMCA-011, ¶ 22, 126 N.M. 460, 971 P.2d 851. This is such a case.

{10} The parties contest whether Long had abandoned the scope and course of his employment upon his departure from Grants. We recognize that a person can leave the scope and course of his employment and later return to it. Carter v. Burn Constr. Co., 85 N.M. 27, 30, 508 P.2d 1324, 1327 (Ct.App.1973). When we analyze BNSF's vicarious liability for Long's actions, we look at whether driving a car at the time of the incident was something sufficiently related to Long's employment as to allow a conclusion that driving was an activity Long would undertake within the scope and course of his employment at the time of the accident. Plaintiffs urge us to hold that upon telling his brother that he intended to go back to the hotel after visiting his father and getting on eastbound I-40 at Manuelito, Long had returned to the scope and purpose of his employment sufficiently to give rise to BNSF's liability for his actions. We disagree.

Workers' Compensation Provides an Inadequate Model For Assessing Vicarious Liability Although Workers' Compensation Cases Are Helpful in the Analysis

{11} Carter was a workers' compensation case. Id. at 29, 508 P.2d at 1325. In our recent Lessard opinion, which is the New Mexico case closest to this case on the facts, we observed that workers' compensation and tort law concepts should not be conflated because of different policies and analyses, but we did not further explain our rationale. Lessard v. Coronado Paint & Decorating Ctr., Inc., 2007-NMCA-122, ¶ 7, 142 N.M. 583, 168 P.3d 155, cert. quashed, 2008-NMCERT-002, 143 N.M. 667, 180 P.3d 674. The distinction lies in the scope and policy of the two bodies of law.

{12} "The [Workers' Compensation] Act fulfills [its] purpose through a bargain in which an injured worker gives up his or her right to sue the employer for...