Konradi v. U.S., 89-3532

• Decision Date: 29 November 1990
• Docket Number: No. 89-3532,89-3532
• Citation: 919 F.2d 1207
• Parties: Gail D. KONRADI, Personal Representative of the Estate of Glenn J. Konradi, Plaintiff-Appellant, v. UNITED STATES of America and Robert E. Farringer, Defendants-Appellees.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 1207

919 F.2d 1207

Gail D. KONRADI, Personal Representative of the Estate of Glenn J. Konradi, Plaintiff-Appellant, v. UNITED STATES of America and Robert E. Farringer Defendants-Appellees.

No. 89-3532.

United States Court of Appeals Seventh Circuit.

Argued Sept. 18, 1990.

Decided Nov. 29, 1990.

Thomas A. Withrow, David J. Bodle, and Scott S. Morrisson, Henderson, Daily, Withrow & Devoe, Indianapolis, Ind., and Richard K. Levi, Earnest, Foster, Eder, Levi & Northam, Rushville, Ind., for plaintiff-appellant.

Gerald A. Coraz, Asst. U.S. Atty., Deborah J. Daniels, U.S. Atty., Office of the U.S. Atty., John S. Langan, Davis, Davis & Langan, Indianapolis, Ind., and E. Edward Dunsmore, Knightstown, Ind., for defendants-appellees.

Before POSNER, RIPPLE and MANION, Circuit Judges.

POSNER, Circuit Judge.

While driving to work early one morning Robert Farringer, a rural mailman, struck a car driven by the plaintiff's decedent, Glenn Konradi, killing him. The suit is against the United States under the Federal Tort Claims Act, 28 U.S.C. Secs. 1346(b), 2671 et seq., with a pendent-party claim under state law against Farringer. The basis of both claims is that Farringer's negligence in failing to yield the right of way to Konradi at an intersection was the cause of the accident. The district judge dismissed the suit on the government's motion for summary judgment. He ruled that the accident had not occurred within the scope of Farringer's employment by the Postal Service, which let off the Service; he then relinquished jurisdiction over the pendent party claim.

The parties agree that the question whether the accident occurred within the scope of Farringer's employment is governed by Indiana law, 28 U.S.C. Sec. 1346(b); Williams v. United States, 350 U.S. 857, 76 S.Ct. 100, 100 L.Ed. 761 (1955) (per curiam), that under Indiana law it is a question of fact, Gibbs v. Miller, 152 Ind.App. 326, 329, 283 N.E.2d 592, 594 (1972), and therefore that the judge was right to dismiss the case on summary judgment only if no reasonable jury, presented with the evidence that was before the judge when he ruled, could have answered the question in the plaintiff's favor. One could quarrel with "therefore," since whether a question is one of fact or of law has been held to fall on the procedure side of the substance/procedure divide that Erie R. Co. v. Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188 (1938), established. Byrd v. Blue Ridge Rural Elec. Coop., Inc., 356 U.S. 525, 78 S.Ct. 893, 2 L.Ed.2d 953 (1958); Nunez v. Superior Oil Co., 572 F.2d 1119, 1125 (5th Cir.1978); Deland v. Old Republic Life Ins. Co., 758 F.2d 1331, 1335 (9th Cir.1985). Although the present case is not a diversity case, Erie was an interpretation of the Rules of Decision Act, 28 U.S.C. Sec. 1652, and its principles apply to any case in federal court in which state law supplies the rule of decision, Morgan v. South Bend Community School Corp., 797 F.2d 471, 474 (7th Cir.1986); Hernas v. City of Hickory Hills, 507 F.Supp. 103, 105 (N.D.Ill.1981); Wright, Miller & Cooper, Federal Practice and Procedure Sec. 4515 (1982), as it does here by virtue of 28 U.S.C. Sec. 1346(b). Still, circumstances alter cases--or at least may. Byrd and the cases following it rely heavily on the Seventh Amendment, which has no application to the Federal Tort Claims Act, for the proposition that federal law determines when a question is factual, and therefore a jury issue, in a case tried in a federal court; the case for applying federal law to the law-fact issue in this case is therefore weakened. But so is the case for applying state law to the issue. Congress has given the federal courts exclusive jurisdiction over tort claims against the federal government, incorporating local law for the convenience of the federal government rather than to vindicate state policies--though on the other hand the states do have an interest in conduct of federal employees that injures the state's citizens.

All this is as academic as it is interesting. No party argues in this case that federal law rather than state law should determine whether scope of employment is to be treated as a legal or as a factual question--perhaps believing, plausibly enough, that the question would be decided the same way under either law. Without further ado, therefore, we can turn to the merits.

The general rule is that an employee is not within the scope of his employment when commuting to or from his job. As the Supreme Court of Indiana put it the last time it addressed the issue, more than three decades ago, "an employee on his way to work is normally not in the employment of the corporation." Biel, Inc. v. Kirsch, 240 Ind. 69, 73, 161 N.E.2d 617, 618 (1959) (per curiam). The rub is "normally," and though omitted in the statement of the rule in Pursley v. Ford Motor Co., 462 N.E.2d 247, 249 (Ind.App.1984), this weasel word is definitely required for the sake of accuracy. In State v. Gibbs, 166 Ind.App. 387, 336 N.E.2d 703 (1975), the employer furnished the employee with a car for use on the job but also allowed him to take it home at night. The accident occurred while he was driving home, and the employer was held liable. In Gibbs v. Miller, supra, the employer was held liable for an accident that occurred when its traveling salesman, who used his own car to make his rounds, was driving home for lunch from an appointment with a customer; he had other appointments scheduled for that afternoon. On the other hand, in City of Elkhart v. Jackson, 104 Ind.App. 136, 10 N.E.2d 418 (1937), which also involved an employee driving the company car at lunch time--this time he was returning to work after lunch when the accident occurred--the accident was held to be outside the scope of employment. Biel, Inc. v. Kirsch, supra, was another company-car case, and again the accident (which occurred while the employee was driving the car to work one morning) was held to be outside the scope of employment--but the employee happened also to be the employer's owner and, it seems, was using the car for her personal convenience rather than on company business. In City of Crawfordsville v. Michael, 479 N.E.2d 102 (Ind.App.1985), the employee was using the company car (actually truck) for personal business on his day off when the accident occurred; he too was held not to have been acting within the scope of his employment.

It is impossible to find the pattern in this carpet without a conception of what the law is trying to accomplish by making an employer liable for the torts of his employees committed within the scope of their employment and by excluding commuting from that scope--"normally." The Indiana decisions are few and not articulate on these issues, and although there are plenty of cases in other states, they use a similar approach and are similarly reticent about the considerations that animate their decisions. Annot., Employer's Liability for Negligence of Employee in Driving His Own Car, 52 A.L.R.2d 287, 303, 311 (1957); Annot., Employer's Liability for Employee's Negligence in Operating Employer's Car in Going to or from Work or Meals, 52 A.L.R.2d 350, 354, 362-63 (1957). There is however a rich scholarly literature on vicarious liability, specifically of employers, from which clues can be gleaned. Sykes, The Boundaries of Vicarious Liability: An Economic Analysis of the Scope of Employment Rule and Related Legal Doctrines, 101 Harv.L.Rev. 563 (1988), is particularly helpful; we have relied on it previously, in an opinion by Judge Manion, Wilson v. Chicago, Milwaukee, St. Paul & Pac. R.R., 841 F.2d 1347, 1352, 1356 n. 2 (7th Cir.1988), to help decide a scope of employment issue.

Often an employer can reduce the number of accidents caused by his employees not by being more careful--he may already be using as much care in hiring, supervising, monitoring, etc. his employees as can reasonably be demanded--but by altering the nature or extent of his operations: in a word by altering not his care but his activity. This possibility is a consideration in deciding whether to impose strict liability generally. Anderson v. Marathon Petroleum Co., 801 F.2d 936, 939 (7th Cir.1986); Bethlehem Steel Corp. v. EPA, 782 F.2d 645, 652 (7th Cir.1986); Shavell, Strict Liability versus Negligence, 9 J. Legal Stud. 1 (1980). The liability of an employer for torts committed by its employees--without any fault on his part--when they are acting within the scope of their employment, the liability that the law calls "respondeat superior," is a form of strict liability. It neither requires the plaintiff to prove fault on the part of the employer nor allows the employer to exonerate himself by proving his freedom from fault. The focus shifts from changes in care to changes in activity. For example, instead of dispatching its salesmen in cars from a central location, causing them to drive a lot and thus increasing the number of traffic accidents, a firm could open branch offices closer to its customers and have the salesmen work out of those offices. The amount of driving would be less (an activity change) and with it the number of accidents. Firms will consider these tradeoffs if they are liable for the torts of their employees committed within the scope of their employment, even if the employer was not negligent in hiring or training or monitoring or supervising or deciding not to fire the employee who committed the tort. This liability also discourages employers from hiring judgment-proof employees, which they might otherwise have an incentive to do because a judgment-proof employee, by definition, does not have to be compensated (in the form of a higher wage) for running the risk of being sued for a tort that he commits on his employer's behalf. He runs no such risk; he is not worth suing.

If it is true that one objective of the doctrine of respondeat superior is to give employers an incentive to consider changes in the nature or...