O'Shea v. Welch

• Decision Date: 25 November 2003
• Docket Number: No. 02-3343.,02-3343.
• Citation: 350 F.3d 1101
• Parties: John O'SHEA, Plaintiff-Appellant, v. Anthony J. WELCH, Defendant, and American Drug Stores, Inc., doing business as Osco Drug, Defendant-Appellee, Farmers Insurance Company, Inc., Defendant-Intervenor.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 1101

350 F.3d 1101

John O'SHEA, Plaintiff-Appellant, v. Anthony J. WELCH, Defendant, and American Drug Stores, Inc., doing business as Osco Drug, Defendant-Appellee, Farmers Insurance Company, Inc., Defendant-Intervenor.

No. 02-3343.

United States Court of Appeals, Tenth Circuit.

November 25, 2003.

Donald M. McLean (Benjamin M. Kieler and Michael L. Baumberger with him on the briefs) of Hayes & Kieler, L.L.C., Overland Park, KS, for Plaintiff-Appellant.

Danny L. Curtis of McDowell, Rice, Smith & Gaar, P.C., Kansas City, MO (Suzanna L. Trower of McDowell, Rice, Smith & Gaar, P.C., Kansas City, MO, and Dion J. Sartorio of Tressler, Soderstrom, Maloney & Priess, Chicago, IL, with him on the brief), for Defendant-Appellee.

Before HARTZ, HOLLOWAY, and McKAY, Circuit Judges.

McKAY, Circuit Judge.

Appellant filed a claim in the district court for damages against Defendant Welch¹ based on negligence after Appellant sustained injuries when the car that he was driving was struck by a car driven by Mr. Welch. In his complaint, Appellant alleged that Mr. Welch, an Osco employee, was acting within the scope of his employment at the time of the accident. Appellant sought to hold Osco liable for damages under a theory of respondeat superior.

Appellant's version of the facts on summary judgment are as follows. At the time of the accident, Mr. Welch was an Osco store manager. He was driving from his store to the Osco District Office to deliver football tickets for that weekend which were obtained from a vendor for distribution among Osco managers. Mr. Welch frequently made trips for Osco using his own vehicle. During his drive, Mr. Welch remembered that he needed to have some routine maintenance done on his car. He made a spur of the moment decision to pull into a service station for an estimate. Mr. Welch allegedly failed to yield in making a left turn and struck Appellant's car.

On cross-motions for summary judgment, the district court granted Osco's motion and denied Appellant's motion, holding that no reasonable jury could conclude that Mr. Welch was acting within the scope of his employment. The district court did not specifically decide whether the trip to the District Office was within Mr. Welch's scope of employment. Instead, the district court held that it did not matter because, even if the trip had been within the scope of Mr. Welch's employment, the attempted stop at the service station was not. The district court also denied Appellant's motion to reconsider or, in the alternative, to certify a question to the Kansas Supreme Court.

After Osco was dismissed from the case, a bench trial was held on the issue of damages. Defendant Welch did not present evidence or cross-examine witnesses. The court entered judgment against Mr. Welch in the amount of $1,014,503.70, "question[ing] whether it would arrive at the same result in a true adversary proceeding...." Aplt.App., Vol. II, at 349.

The specific issue we are asked to address on appeal is whether the district court erred in granting summary judgment to Appellee Osco on whether Mr. Welch was within the scope of his employment when he turned into the service station for non-emergency maintenance on his car while driving to deliver a vendor gift to the District Office. We review "the grant of summary judgment de novo, applying the same standards used by the district court." Byers v. City of Albuquerque, 150 F.3d 1271, 1274 (10th Cir.1998). A motion for summary judgment is granted when the record demonstrates 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." Fed. R.Civ.P. 56.

Pursuant to Kansas law, an employer is only liable for injuries caused by an employee acting within the scope of his employment. Williams v. Community Drive-In Theater, Inc., 214 Kan. 359, 520 P.2d 1296, 1301-02 (1974). The following Kansas jury instruction is an accurate illustration of Kansas scope of employment law:

An employee is acting within the scope of [his employment] when [he] is performing services for which [he] has been [employed], or when [he] is doing anything which is reasonably incidental to [his employment]. The test is not necessarily whether this specific conduct was expressly authorized or forbidden by the employer[], but whether such conduct should have been fairly foreseen from the nature of the [employment] and the duties relating to it.

Pattern Instructions Kansas 3d 107.06; Williams, 520 P.2d at 1300. Unfortunately, there are no Kansas cases directly on point to help define the parameters of Kansas law. Therefore, in its grant of summary judgment for Osco, the district court relied substantially on two cases from other jurisdictions.

In Carroll v. Western Union Telegraph Co., 170 Wash. 600, 17 P.2d 49 (1932), a motorcycle messenger, not then being busy, informed his superior that he needed to get a part for his motorcycle. Given permission, the messenger then proceeded on his motorcycle a considerable and indirect distance to complete his personal errand. He was not sent on an errand for his employer; he was excused temporarily from his post for his own private advantage. However, there was no deduction in pay. The accident occurred as the messenger was returning from his errand to go back to work. The court held that the employer was not liable for the tort of his employee because the messenger had been specifically excused from his job duties to run a personal errand. Id. at 50. The court specifically noted that cases where the employee was on an errand for the employer from which he deviated for personal reasons "have no bearing here, because [the messenger] was not sent out on any errand from the performance of which he deviated." Id.

Similarly, in Schofield v. Cox Enterprises, Inc., 212 Ga.App. 354, 441 S.E.2d 693 (Ga.Ct.App. 1994), a newspaper delivery person worked a morning and an afternoon shift, and the time between the shifts was personal, unpaid time. The delivery person had some unsold papers to return to his employer. Though not required to return the papers immediately, the employee planned to return the papers between shifts after he had his car's alignment fixed. The accident occurred at the service station when the car driven by the delivery person failed to stop and pinned a repair shop worker against the wall which resulted in the worker's death. The court held that the employer was not liable for the tort committed by his employee.

We note that though the district court relied heavily on Carroll and Schofield, neither of these cases is from Kansas and, more importantly, neither is similar enough to ours on the facts. The district court focused on the nature of the errand of non-emergency maintenance to a vehicle used for work. However, in our case, Mr. Welch was arguably delivering tickets for Osco when he attempted to make a turn into a service station. In Carroll and Schofield, the employees were not on business errands from which they deviated for personal reasons. In Carroll, the messenger was on a lengthy personal errand across town that had nothing to do with his employment. In Schofield, the delivery person was not even working a shift — it was his personal, unpaid time. Therefore, neither of these cases in which off-duty employees committed torts while seeking to repair a vehicle used for work is helpful to our analysis.

Due to the absence of binding authority, Appellant urges us to decide that Kansas would adopt the "slight deviation" rule which it already follows in worker's compensation cases. Approximately half of the states², supported by American Jurisprudence, have applied some form of the slight deviation analysis in third-party liability cases. See 27 Am.Jur.2d Employment Relationship § 466 (2000). Pursuant to this analysis,

it must be determined whether the employee was on a frolic or a detour; the latter is a deviation that is sufficiently related to the employment to fall within its scope, while the former is the pursuit of the employee's personal business as a substantial deviation from or an abandonment of the employment. If an employee wholly abandons, even temporarily, the employer's business for personal reasons, the act is not within the scope of employment, and the employer is not liable under respondeat superior for the employee's conduct during that lapse. A diversion from the strict performance of a task is not an abandonment of responsibility and service to an employer, unless the very character of the diversion severs the employment relationship. Acts that are necessary to the comfort, convenience, health, and welfare of the employee while at work are not outside the scope of employment, if the conduct is not a substantial deviation from the duties of employment.

Id. (footnotes omitted). Personal acts that are not far removed in time, distance, or purpose are deemed to be incidental to the employment. See, e.g., Restatement (Second) of Agency § 237 (1958). Our research has not revealed a single jurisdiction that has considered and rejected slight deviation analysis in third-party liability cases. Kansas has not had the occasion to consider the slight deviation analysis in such cases. However, it has adopted the analysis in worker's compensation cases. We must therefore determine whether Kansas would adopt the slight deviation analysis in cases such as ours to inform our judgment.

Appellant asserts that the Kansas Supreme Court would adopt and apply the slight deviation rule to find that Mr. Welch was within the scope of his employment with Osco when attempting the turn for an estimate on vehicle maintenance. Appellant further argues that the Kansas pattern jury instruction, infra, is itself a rejection of a bright-line rule and demands that an employee's acts be put into context in order to determine what is "reasonably incidental" to employment and what "conduct should have been fairly foreseen." Slight...