Opinion
Case No. 01-2336-JWL
March 21, 2002
MEMORANDUM ORDER
This case arises out of an automobile accident. Plaintiff alleges that he sustained injuries when the car that he was driving was struck by a car driven by defendant Anthony J. Welch. Plaintiff's claim for damages against Mr. Welch, then, is based on negligence. Plaintiff further alleges that defendant Welch, an employee of defendant American Drug stores, Inc. d/b/a Osco Drug (hereinafter Osco), was acting within the scope of his employment at the time of the accident. Thus, plaintiff seeks to hold defendant Osco liable for damages under a theory of respondeat superior. Federal jurisdiction is based on diversity of citizenship and the requisite amount in controversy.
The matter is presently before the court on Osco's motion for summary judgment (doc. #42) and plaintiff's cross-motion for summary judgment (doc. #53). As set forth in more detail below, Osco's motion is granted, plaintiff's motion is denied, and plaintiff's complaint against defendant Osco is dismissed.
I. Facts
The facts of this case are fairly simple. At the relevant time period, defendant Welch was the Market Manager of the Osco Drug Store located on Langsford Road in Lee's Summit, Missouri. On Friday, September 17, 1999, defendant Welch began driving to the Osco District Office located at the intersection of 75th Street and Metcalf Avenue in Overland Park, Kansas. The sole purpose of his trip to the Osco District Office was to deliver Kansas City Chiefs football tickets for distribution among Osco managers. The Chiefs tickets were obtained from one of Osco's vendors.
In traveling to the District Office, defendant Welch was driving north on Metcalf Avenue. At the same time, plaintiff was driving his car south on Metcalf Avenue. As he was traveling north on Metcalf, defendant Welch "remembered that either [he] needed an oil change or some brakes done on [his] car so it was a great opportunity for [him] to go and get an estimate." Toward that end, defendant Welch testified that he made the "spur of the moment" decision to turn left at 78th Street, across the southbound lane, in an attempt to pull his car into a service station. Defendant Welch allegedly failed to yield prior to attempting the left turn and his car struck plaintiff's car at that time. If he had not decided to go to the service station, defendant Welch would have continued traveling north on Metcalf to 75th Street and would not have attempted a left turn at 78th Street. In other words, the car accident happened only as a result of defendant Welch's attempt to go to the service station.
Plaintiff and defendant Osco have filed motions for summary judgment. The court will address the motions together. The legal standard does not change if the parties file cross-motions for summary judgment. Each party has the burden of establishing the lack of a genuine issue of material fact and entitlement to judgment as a matter of law. See Atlantic Richfield Co. v. Farm Credit Bank of Wichita, 226 F.3d 1138, 1148 (10th Cir. 2000).
Summary judgment is appropriate if the moving party demonstrates that there is "no genuine issue as to any material fact" and that it is "entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c). In applying this standard, the court views the evidence and all reasonable inferences therefrom in the light most favorable to the nonmoving party. Spaulding v. United Transp. Union, 279 F.3d 901, 904 (10th Cir. 2002). A fact is "material" if, under the applicable substantive law, it is "essential to the proper disposition of the claim." Wright ex rel. Trust Co. of Kansas v. Abbott Laboratories, Inc., 259 F.3d 1226, 1231-32 (10th Cir. 2001) (citing Adler v. Wal-Mart Stores, Inc., 144 F.3d 664, 670 (10th Cir. 1998)). An issue of fact is "genuine" if "there is sufficient evidence on each side so that a rational trier of fact could resolve the issue either way." Adler, 144 F.3d at 670 (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)).
The moving party bears the initial burden of demonstrating an absence of a genuine issue of material fact and entitlement to judgment as a matter of law. Spaulding, 279 F.3d at 904 (citing Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986)). In attempting to meet that standard, a movant that does not bear the ultimate burden of persuasion at trial need not negate the other party's claim; rather, the movant need simply point out to the court a lack of evidence for the other party on an essential element of that party's claim. Adams v. American Guarantee Liability Ins. Co., 233 F.3d 1242, 1246 (10th Cir. 2000) (citing Adler, 144 F.3d at 671).
Once the movant has met this initial burden, the burden shifts to the nonmoving party to "set forth specific facts showing that there is a genuine issue for trial." Spaulding, 279 F.3d at 904 (citing Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986)); Anderson, 477 U.S. at 256; Celotex, 477 U.S. at 324. The nonmoving party may not simply rest upon its pleadings to satisfy its burden. Anderson, 477 U.S. at 256; accord Eck v. Parke, Davis Co., 256 F.3d 1013, 1017 (10th Cir. 2001). Rather, the nonmoving party must "set forth specific facts that would be admissible in evidence in the event of trial from which a rational trier of fact could find for the nonmovant." Mitchell v. City of Moore, Oklahoma, 218 F.3d 1190, 1197-98 (10th Cir. 2000) (quoting Adler, 144 F.3d at 671). To accomplish this, the facts "must be identified by reference to an affidavit, a deposition transcript, or a specific exhibits incorporated therein." Adams, 233 F.3d at 1246.
Finally, the court notes that summary judgment is not a "disfavored procedural shortcut;" rather, it is an important procedure "designed to secure the just, speedy and inexpensive determination of every action." Celotex, 477 U.S. at 327 (quoting Fed.R.Civ.P. 1).
III. Discussion
Osco moves for summary judgment on the grounds that defendant Welch, as a matter of law, was not acting within the course and scope of his employment at the time of the accident. Osco asserts that both the delivery of the Chiefs tickets and the detour to the service station were purely personal to defendant Welch and well outside the scope of his employment. In his response to Osco's motion, defendant Welch contends that questions of fact exist with respect to whether he was acting within the scope of his employment at the time of the accident. Plaintiff, in response to Osco's motion, contends not only that Osco is not entitled to judgment as a matter of law but that plaintiff is entitled to summary judgment on the issue of Osco's liability.
As set forth in more detail below, while the court would conclude from the record that genuine issues of material fact exist with respect to whether defendant Welch's delivery of the Chiefs tickets was within the scope of his employment, the court need not address this issue because it concludes that, as a matter of law, defendant Welch's attempted stop at the service station for routine vehicle maintenance was outside the scope of his employment. Summary judgment in favor of Osco, then, is appropriate and plaintiff's motion for summary judgment is denied.
Scope of employment determinations are governed by the respondeat superior doctrine of state law and all parties agree that Kansas law applies to this case. Under Kansas law, an employer is vicariously liable under the theory of respondeat superior for torts committed by an employee or agent acting within the scope and course of his or her employment. See Williams v. Community Drive-In Theater, Inc., 214 Kan. 359, 366 (1974). An employee is acting "within the scope of the employment if the employee is performing services for which the employee has been employed or is doing anything reasonably incidental to the employment." Commerce Bank of St. Joseph, N.A. v. State, 251 Kan. 207, 210 (1992) (citing PIK-Civil 2d 7.04). The test "is not necessarily whether the 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." PIK-Civil 3d 107.06.
Pattern Instruction 7.04 was cited with approval by the Kansas Supreme Court in both Williams and Commerce Bank. That instruction was renumbered as 107.06 in the third edition of the Pattern Instructions, but the language of the instruction remains the same.
It is uncontroverted that defendant Welch was using his personal vehicle at the time of the accident and that Osco, on occasion, expected Mr. Welch to use his personal vehicle for business errands. It is further uncontroverted that Mr. Welch, as a management employee, had the discretion to conduct personal errands during the course of the workday. Moreover, while Osco reimbursed employees for mileage associated with business errands, Osco did not reimburse employees for mileage associated with personal errands and did not reimburse employees, including Mr. Welch, for routine service associated with the maintenance of their vehicles. Finally, it is undisputed that Osco did not require its employees to maintain their vehicles in any particular fashion, so long as an employee's vehicle was "safe" when it was operated for Osco business. In that regard, Osco expected an employee to pull into a service station if, while driving on Osco business, the employee had safety concerns or any other emergency (including the need to fill the gas tank) concerning his or her vehicle.
According to plaintiff, Mr. Welch's maintenance of his car-a car used primarily for work-clearly benefits Osco and, thus, stopping to obtain a repair estimate is reasonable incidental to Mr. Welch's employment and foreseeable by Osco. While the court has not found any analogous Kansas cases addressing this issue, the court has found two other cases addressing the argument made by plaintiff. In Schofield v. Cox Enterprises, Inc., 441 S.E.2d 693 (Ga.Ct.App. 1994), an employee who was required to furnish his own transportation to deliver newspapers to vending machines on a specific route stopped at a service station for an adjustment to the front-end alignment on his van. He stopped at the station on his way to return unsold newspapers to his employer. See id. at 694. An accident occurred at the service station. Id. Applying Georgia law (law that on this subject is substantially similar to the law of Kansas), the court affirmed the trial court's grant of summary judgment in favor of the employer and held that the employee was acting outside the scope of employment at the time of the accident. See id. at 695. In so holding, the court specifically rejected the argument that because the employee's van was necessary for his employment, the maintenance of the van was within the scope of his employment:
Plaintiff also relies on a series of workers' compensation cases for the principle that Mr. Welch's detour must constitute a "major deviation" from the business purpose (as opposed to a slight deviation) to remove him from the scope of his employment. See, e.g., Kindel v. Ferco Rental, Inc., 258 Kan. 272 (1995). As Osco highlights, however, workers' compensation cases and the standards used therein do not control this case. See Girard v. Trade Professionals, Inc., 50 F. Supp.2d 1050, 1053-54 (D.Kan. 1999) (mere fact that employee may have been acting within the scope of employment for purposes of Kansas Workers' Compensation Act does not establish the same for purposes of finding employer liable for employee's negligence) (and explaining rationale for distinction).
Schofield argues that because [the employee's] van was necessary for his employment, the maintenance of the van was within the scope of his employment. This argument is without merit, [the employee's] particular transportation was not specified by [the employer], nor was the condition of the front-end alignment on the van. Furthermore, it makes no difference in our analysis whether [the employee] was having his alignment checked or performing any other personal errand as long as he was on a personal matter and not serving his employer.Id. at 695.
In Carroll v. Western Union Telegraph Co., 17 P.2d 49 (Wash. 1932), an employee, after seeking permission to do so, left his place of employment to go to a repair shop for the purpose of having horn brackets attached to his motorcycle-a motorcycle that was necessary to the performance of his job as a motorcycle messenger. An accident occurred while he was returning from the repair shop. Id. at 49. The court noted that the employee was required to furnish his own motorcycle and was required to keep it in repair. Id. Nonetheless, the court affirmed the lower court's grant of the employer's motion for judgment notwithstanding the verdict and specifically rejected the argument that because the employee needed his motorcycle for his job, keeping the motorcycle in proper repair was within the scope of his employment. Id.
The court agrees with the reasoning of Schofield and Carroll and concludes that defendant Welch was acting outside the scope of his employment when he departed from his planned route in an attempt to go to the service station for routine maintenance on his car. See Woodring v. United Sash Door Co., 152 Kan. 413 (1940) (where the business errand is finished or abandoned and the workman thereafter sets out about the pursuit of his own pleasure or indulgence there is no theory of law or of justice which would impose on his employer the obligation to pay for any injury sustained). The uncontroverted facts established that the detour to the service station was primarily for Mr. Welch's own personal benefit and any benefit to Osco was only incidental to Mr. Welch's benefit. See United States v. Hainline, 315 F.2d 153, 155-56 (10th Cir. 1963) (employee not acting within the scope of his employment as an Air Force officer where, at the time of accident, employee was flying aircraft for his own personal benefit; any benefit to Air Force was incidental to private activities). It simply cannot be said that Mr. Welch, at the time of the accident, was sufficiently engaged in the furtherance of Osco's business to make him subject to Osco's direction and control.
Indeed, while not determinative in and of itself, Mr. Welch testified in his deposition that his left turn into the service station had nothing to do with the business of Osco.
Moreover, while plaintiff and Mr. Welch urge that Mr. Welch's conduct was no different than stopping for gasoline (an activity which Osco expects and understands that employees will have to do from time to time), the court disagrees. The evidence in the record demonstrates only that Osco expected employees to use their discretion and stop for gas while driving on business if necessary. Similarly, Osco admitted knowing that situations arise in which an employee would need to pull his or her car into a service station, if the car was dangerous to drive or if the employee had a safety concern. However, there is no evidence in the record before the court that Mr. Welch had a specific safety concern about the level of oil in his car or about the operation of his brakes. There is no evidence that the car was, in fact, in an unsafe condition. The evidence suggests only that Mr. Welch was seeking an estimate for routine, non-emergency maintenance related to his personal vehicle. In these circumstances, no reasonable jury could conclude that Mr. Welch was acting within the scope of his employment. Summary judgment for Osco is granted.
The specific hypothetical posed to the Osco witness was whether Osco would expect an employee who was "running out of gas" while driving on Osco business to stop by a service station for gas.
IT IS THEREFORE ORDERED BY THE COURT THAT defendant American Drug Stores, Inc. d/b/a Osco Drug's motion for summary judgment (doc. #42) is granted and plaintiff's cross-motion for summary judgment (doc. #53) is denied. Plaintiff's complaint against defendant Osco is dismissed with prejudice.
IT IS SO ORDERED.