O'Shea v. Welch

F I L E D
United States Court of Appeals
Tenth Circuit
PUBLISH
NOV 25 2003
UNITED STATES COURT OF APPEALS
PATRICK FISHER
Clerk
TENTH CIRCUIT

JOHN O’SHEA,
Plaintiff-Appellant,
v. No. 02-3343
ANTHONY J. WELCH,

Defendant,

and
AMERICAN DRUG STORES, INC.,
doing business as Osco Drug,

Defendant-Appellee,

FARMERS INSURANCE COMPANY,
INC.,

Defendant-Intervenor.

APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
(D.C. No. 01-CV-2336-JWL)

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

Danny L. Curtis of McDowell, Rice, Smith & Gaar, P.C., Kansas City, Missouri
(Suzanna L. Trower of McDowell, Rice, Smith & Gaar, P.C., Kansas City,
Missouri, and Dion J. Sartorio of Tressler, Soderstrom, Maloney & Priess,
Chicago, Illinois, 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

Welch 1 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

1
Mr. Welch is not a party to this appeal.

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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

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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., 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., 17 P.2d 49 (Wash. 1932), a

motorcycle messenger, not then being busy, informed his superior that he needed

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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., 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

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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 states 2, supported by

2
See, e.g., Healey v. Cockrill, 202 S.W. 229 (Ark. 1918); Avila v. Standard
Oil Co., 213 Cal. Rptr. 314 (Cal. Ct. App. 1985); Gayton v. Pacific Fruit Express
Co., 15 P.2d 217 (Cal. Ct. App. 1932); Tanner v. Lambert Auto Elec. Co., 522
P.2d 130 (Colo. Ct. App. 1974); Western Union Telegraph Co. v. Michel, 163 So.
86 (Fla. 1935); Parker v. Smith, 18 S.E.2d 559 (Ga. Ct. App. 1942); Van Vranken
v. Fence-Craft, 430 P.2d 488 (Idaho 1967); Pyne v. Witmer, 543 N.E.2d 1304 (Ill.
(continued...)

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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.

2
(...continued)
1989); Sandman v. Hagan, 154 N.W.2d 113 (Iowa 1967); Dennes v. Jefferson
Meat Market, 14 S.W.2d 408 (Ky. 1929); Timmons v. Silman, 761 So.2d 507 (La.
2000); Karangelen v. Snyder, 391 A.2d 474 (Md. App. 1978); Nelson v. Nelson,
166 N.W.2d 70 (Minn. 1969); Colotta v. Phillips, 85 So.2d 574 (Miss. 1956);
Burger Chef Systems, Inc. v. Govro, 407 F.2d 921 (8th Cir. 1969)(Missouri);
Dafoe v. Grantski, 9 N.W.2d 488 (Neb. 1943); Regan v. Bellows, 200 N.Y.S.2d
575 (N.Y. App. Div. 1960); Bryan v. Bunis, 203 N.Y.S. 634 (N.Y. App. Div.
1924); Parrott v. Kantor, 6 S.E.2d 40 (N.C. 1939); Edwards v. Benedict, 70
N.E.2d 471(Ohio Ct. App. 1946); Brayton v. Carter, 163 P.2d 960 (Okla. 1945);
Ryan v. Western Pac. Ins. Co., 408 P.2d 84 (Or. 1965); Lindenmuth v. Steffy, 98
A.2d 242 (Pa. Super. Ct. 1953); Aldcroft v. Prudential Ins. Co. of Amer., 243
A.2d 115 (R.I. 1968); Hancock v. Aiken Mills, 185 S.E. 188 (S.C. 1936); Gulf
Refining Co. v. Texarkana & Ft. S. Ry. Co., 261 S.W. 169 (Tex. Civ. App. 1924);
Carter v. Bessey, 93 P.2d 490 (Utah 1939); Master Auto Serv. Corp. v. Bowden,
19 S.E.2d 679 (Va. 1942); Leuthold v. Goodman, 157 P.2d 326 (Wash. 1945).

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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

deviation analysis provides a framework for such an analysis. A slight deviation

might be considered reasonably incidental to employment while a substantial

deviation would not.

We agree that the Kansas jury instruction is compatible with slight

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deviation analysis. 3 Of the jurisdictions that have adopted slight deviation

analysis, several have jury instructions that are substantially similar to Kansas’

jury instruction. For example, Mississippi’s jury instruction provides:

An [employee] is acting within the scope of his [employment] when
he is performing services or work for which he has been hired or
engaged, or when he is doing something reasonably incidental to
such work. The question is not necessarily whether such conduct
was expressly authorized or forbidden, but rather whether it could
have been fairly foreseen from the nature of his work and the duties
relating to it, and whether he acted, at least in part, in an effort to
serve his employer.

Miss. Prac. Model Jury Instr. Civil § 4:4 (2002); see also Ark. Model Jury Instr.,

Civil AMI 703 (4th ed. 1999); 4 Minn. Prac. Jury Instr. Guides – Civil 30.15 (4th

ed. 1999); N.Y. Pattern Jury Instr. – Civil 2:235 (2002). Mississippi’s instruction

is virtually identical to the Kansas instruction, and it coexists with slight

deviation analysis. Colotta v. Phillips, 85 So.2d 574 (Miss. 1956).

3
As a note, we agree with Appellant that application of the slight deviation
analysis is not contrary to the Kansas cases cited by the district court. For
example, in Hollinger v. Stormont Hosp. and Training School for Nurses, 578
P.2d 1121 (1978), the plaintiff was injured while delivering newspapers when a
janitor played a practical joke on her. The court held that the employer was not
liable for the injuries because “[p]laintiff’s injuries were not caused by the act of
purchasing or reading a newspaper but occurred when [the janitor] attempted to
pull a newspaper out of the bag plaintiff was carrying.” Id. at 1130. The court
did not mention substantial deviation. However, it compared the janitor’s conduct
with “an assault by an employee . . . motivated entirely by personal reasons such
as malice or spite or by a desire to accomplish some unlawful purpose.” Id. at
1125. An application of substantial deviation would most likely have had the
same outcome because the janitor’s prank was a substantial deviation in terms of
purpose.

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 Unfortunately, Kansas law does not provide specific guidance in the instant

case. The only guidance is from a Kansas jury instruction. To make a specific

and detailed list of all personal stops that are and are not acceptable would be

contrary to the standard expressed in the jury instruction which embodies Kansas

law. Application of the slight deviation analysis allows for more flexibility and

accuracy in the application of the law to each fact scenario. The Kansas pattern

jury instruction, similar to the instructions cited above from other jurisdictions,

does not express a bright-line rule but instead illustrates a type of slight deviation

rule which requires a determination of what is reasonably incidental to

employment and what conduct should have been fairly foreseen.

Additionally, Kansas has already adopted the slight deviation analysis in

worker’s compensation cases. We agree with Appellee that, even though an

employee’s acts may be deemed within the scope of his employment under the

Kansas Workers Compensation Act, such acts are not necessarily within the scope

of his employment where the issue is whether his employer is vicariously liable to

a third party. We also agree that the public policies behind worker’s

compensation and third party liability cases are different. However, it supports

our analysis that Kansas has considered and adopted slight deviation analysis in at

least one area of the law.

Applying slight deviation analysis to our case, we think that the question of

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whether the turn was within Mr. Welch’s scope of employment is for the jury to

decide. Whether an employee is acting within the scope of his employment is

generally a jury question. Birkner v. Salt Lake County, 771 P.2d 1053, 1057

(Utah 1989). “[W]henever reasonable minds may differ as to whether the

[employee] was at a certain time involved wholly or partly in the performance of

his master’s business or within the scope of his employment,” it is a jury question.

Id. (internal quotations and citations omitted); see also Bacon v. News-Press &

Gazette Co., 373 S.E.2d 797, 799 (Ga. Ct. App. 1988) (quoting Jump v.

Anderson, 197 S.E. 644 (Ga. Ct. App. 1938) (“[W]hether or not the servant at the

time of an injury to another was acting . . . in the scope of his employment is for

determination by the jury, except in plain and indisputable cases.”). The rule has

been stated that

[w]hether there has been a deviation so material or substantial as to
constitute a complete departure is usually a question of fact. In some
cases the deviation may be so marked, and in others so slight
relatively, that the court can say that no conclusion other than that
the act was or was not a departure could reasonably be supported;
while in still others the deviation may be so uncertain in extent and
degree in view of the facts and circumstances as to make the question
of what inferences should be drawn from the evidence properly one
for the jury.

Kruse v. White Bros., 253 P. 178, 181 (Cal. Ct. App. 1927) (citing Healey v.

Cockrill, 202 S.W. 229, 230 (Ark. 1918)); see also Pyne v. Witmer, 543 N.E.2d

1304, 1309 (Ill. 1989) (“[W]here a deviation is uncertain in extent and degree, or

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where the surrounding facts and circumstances leave room for legitimate

inferences as to whether, despite the deviation, the employee was still engaged in

the employer’s business, the question is for the jury.”).

Mindful of the volume of authority which indicates that scope of

employment is generally a jury question, we turn to the parameters of slight

deviation analysis. The scope of slight deviation analysis has been defined as

follows:

To exonerate the master, however, it is essential that the deviation be
for purposes entirely personal to the servant (39 Corp. Jur., p. 1297,
Master and Servant, §§ 1493, 1494); and a deviation will be regarded
as immaterial if the latter combines his own business with that of the
master or attends to both at substantially the same time (Brimberry v.
Dudfield Lumber Co., 183 Cal. 454, 191 P. 894). A mere deviation
from the strict course of his duty does not release the master from
liability. In order to have that effect it must be so substantial as to
amount to an entire departure. 39 Corp. Jur. p. 1297, Master and
Servant, § 1493.

Kruse, 253 P. at 181; see also Phillips Petroleum Co. v. Ward, 74 P.2d 614, 617

(Okla. 1937). Additionally,

[a] mere deviation by an employee from the strict course of his duty
does not release his employer from liability. An employee does not
cease to be acting within the course of his employment because of an
incidental personal act, or by slight deflections for a personal or
private purpose, if his main purpose is still to carry on the business
of his employer. Such deviations which do not amount to a turning
aside completely from the employer’s business, so as to be
inconsistent with its pursuit, are often reasonably expected and the
employer’s assent may be fairly assumed. In many instances they are
the mingling of a personal purpose with the pursuit of the employer’s
business. In order to release an employer from liability, the

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 deviation must be so material or substantial as to amount to an entire
departure.

Di Mirjian v. Ideal Heating Corp., 278 P.2d 114, 118 (Cal. Ct. App. 1954); see

also Pyne, 543 N.E.2d at 1309. Dual purpose ventures may be considered within

the scope of an employee’s employment. Felix v. Asai, 237 Cal. Rptr. 718, 722

(Cal Ct. App. 1987) (“Where the employee may be deemed to be pursuing a

business errand and a personal objective simultaneously, he will still be acting

within the scope of his employment.”).

Appellant argues that Mr. Welch was acting within the scope of his

employment and made only a slight deviation from his business-related trip at the

time the accident occurred. Several factors have been identified as helpful in

determining whether an employee has embarked on a slight or substantial

deviation. They include: (1) the employee’s intent; (2) the nature, time, and place

of the deviation; (3) the time consumed in the deviation; (4) the work for which

the employee was hired; (5) the incidental acts reasonably expected by the

employer; and (6) the freedom allowed the employee in performing his job

responsibilities. Felix, 237 Cal. Rptr. at 722.

Applying these factors to our case, and viewing the facts in a light most

favorable to Appellant, Mr. Welch intended to get an estimate for non-emergency

maintenance on a car used for business. In terms of purpose, it was maintenance

to a vehicle used regularly in performing his job duties for Osco. While his stop

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was not for emergency maintenance for his car, his stop for routine maintenance

on a car used for business purposes could be considered enough of a mixed

purpose by a jury to keep him within the scope of his employment with Osco.

In terms of time and place, the accident occurred minutes and feet from the

direct route to Osco’s District Office. Mr. Welch was simply attempting to turn

from the most direct route into a service station right off the main road. At the

time of the accident, he had not entered the service station. He was technically

still on the road en route to the District Office. Because the accident occurred on

this road, not at the service station, a jury could decide that Mr. Welch had not yet

abandoned his employment for a personal errand at the time of the accident. It is

unclear how long the estimate would have taken. However, we do know that if he

had deviated at the time of the accident, the length of the deviation was only a

few minutes or less.

Mr. Welch was an Osco store manager. A jury could find that an employee

in a managerial position was given some freedom to attend to certain personal

needs throughout the day. It is possible that Osco reasonably expected certain

incidental acts to take place, especially when a store manager was en route from

one store to another or from a store to the District Office.

Our case is similar to Van Vranken v. Fence-Craft, 430 P.2d 488 (Idaho

1967), where the employee deviated from his direct route to drop off a

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prescription for his wife. The court held that “a proportionately slight or

expectable deviation will not relieve an employer of vicarious liability, and except

where the deviation is gross, the jury should determine the scope of employment

question as one of fact.” Id. at 495. A reasonable jury could decide that

“deviation from the direct route was [something] which the employer might

reasonably be deemed to have anticipated and assented to, and was not such as to

amount to an abandonment of the employment.” Kruse, 253 P. at 181.

Assuming without deciding that Mr. Welch was acting within the scope of

his employment in delivering the tickets to the District Office, we hold that a

reasonable jury could conclude that he was acting within the scope of his

employment when he attempted to turn into the service station. A reasonable jury

could decide that Mr. Welch’s attempted deviation from his direct route to obtain

non-emergency vehicle maintenance was something which Osco “might

reasonably be deemed to have anticipated and assented to, and was not such as to

amount to an abandonment of the employment.” Id.

The district court did not specifically decide whether Mr. Welch was in the

scope of his employment in making the trip from his store to the District Office.

It stated:

[W]hile 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

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 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.

Aplt. App., Vol. II, at 311. We agree with the district court that summary

judgment is inappropriate on this issue. Therefore, this issue must be remanded

for trial as well.

We further hold that, in the event that Appellee is found liable by a jury, it

will have the opportunity to contest damages as it was not involved in the

damages hearing.

REVERSED and REMANDED.

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