(dissenting):
T9 I agree with the majority that summary judgment is permitted only when "there is no genuine issue as to any material fact," Utah R. Civ. P. 56(c), but add that the burden is on the nonmoving party to "set forth specific facts showing that there is a genuine issue for trial." Waddoups v. Amalgamated Sugar Co., 2002 UT 69, ¶ 31, 54 P.3d 1054.
*7771 10 There are no factual disputes between parties in this matter, save for the ultimate issue of whether Sundquist was acting within the course and scope of his employment when the accident occurred. Newman agrees. In his brief, he states:
This case involves a claim for personal injuries arising from an auto accident where the primary issue, for purposes of this appeal, is whether the tortfeasor was within the course and scope of his employment at the time of the accident. Newman, the Plaintiff, brought suit against the tortfeasor, Sundquist, and his employer, White Water.
The material facts in this case were undisputed. Therefore, Newman filed a motion for partial summary judgment arguing that Sundquist was in the course and seope of his employment as a matter of law. White Water filed a cross-motion for summary judgment arguing that he was not, and that Newman's claims against White Water should be dismissed.
(Emphasis added.) White Water confirms this assertion stating, "White Water does not include a Statement of the Case because it is satisfied with Newman's statement." Perhaps most importantly, the trial court noted in its August 2, 2006 Memorandum Decision that:
[DJjuring oral argument, counsel agreed that there are no factual disputes presented by their dual [mlotions and that the [clourt can determine, as a matter of law, whether defendant Sundquist was acting within the course and seope of his employment at the time of the accident which is the subject of this action.
(Emphasis added.)
1[ 11 I also agree that the ultimate question of whether an employee is acting within the seope of his or her employment is not infrequently an issue to be resolved by the fact-finder, see Ahistrom v. Salt Lake City Corp., 2003 UT 4, 15, 783 P.3d 815; Clover v. Snow bird Ski Resort, 808 P.2d 1037, 1040 (Utah 1991), and that cross motions for summary judgment do not normally bar the losing party from arguing the existence of fact issues on appeal. Nonetheless, I think, as did the trial court and both parties' counsel (at trial and on appeal), that "when the employee's activity is so clearly within or outside the scope of employment that reasonable minds cannot differ, the court may decide the issue as a matter of law." Christensen v. Swen-son, 874 P.2d 125, 127 (Utah 1994) (citing Clover, 808 P.2d at 1040; Birkner v. Salt Lake County, TiL P.2d 1053, 1057 (Utah 1989)). I
¶12 The application of the Birkner test, see T7l P.2d at 1056-57, relied upon by the majority, establishes that the scope of employment issue be decided on summary judgment. Sundquist's actions fail all three of the Birkner criteria. He was not performing acts that were within his job description, he was not within the ordinary spatial bounds of his employment, and most importantly, his conduct in no way benefitted his employer. As the trial court determined, Sundquist was unequivocally outside the scope of his employment when the accident occurred. "Mr. Sundquist was not acting within the course and scope of his employment at the time of the accident. Mr. Sundquist was going to work at the time of the accident and therefore falls within the clear ambit of the coming and going rule."
113 Similarly, in addition to pursuing cross motions for summary judgment on the seope of employment issue, at oral argument on the motions, both Newman and White Water clearly and affirmatively agreed that the court should decide the issue as a matter of law. The court ruled exactly as requested and decided in favor of White Water. Now, Newman, displeased with the ruling, appeals on grounds that summary judgment was inappropriate and that seope of employment is a factual issue. Because the trial court's ruling was based on Newman's consent to its disposition, the invited error doctrine should preclude this court from reaching that point.
T 14 The invited error doctrine prohibits a party from "taking 'advantage of an error committed at trial when that party led the trial court into committing the error,'" Tschaggeny v. Milbank Ins. Co., 2007 UT 87, 12, 168 P.3d 615 (quoting State v. Winfield, 2006 UT 4, T15, 128 P.8d 1171) (further quotations and citation omitted), and from reaping "both the benefit of not objecting at . *778trial and the benefit of objecting on appeal," Pratt v. Nelson, 2007 UT 41, ¶ 17, 164 P.3d 366. "'Affirmative representations that a party has no objection to the proceedings fall within the seope of the invited error doctrine because such representations reassure the trial court and encourage it to proceed without further consideration of the issues'" Tschaggeny, 2007 UT 37 at ¶ 12, 163 P.3d 615 (quoting Winfield, 2006 UT 4 at ¶ 16, 128 P.3d 1171).
115 Tschaggeny v. Milbank Insurance Co., 2007 UT 37, 163 P.3d 615, provides a clear example of how the invited error doe-trine may be applied to a procedural matter in a civil case. There, the defendant filed a motion in limine with the trial court, asking it to prevent the plaintiff from submitting evidence as to medical expenses she incurred through an automobile accident that had since been written off. See id. at 14. The plaintiff did not respond to the motion. See id. Months later, at a pretrial hearing, the court considered the issue. See id. At that time, the plaintiff was asked whether she opposed the motion, and her counsel responded in the affirmative. See id. However, the plaintiffs counsel subsequently agreed that " 'the way this has been presented by the defense makes sense and probably does not need an opposition.'" Id. The court then granted the defendant's motion from the bench. See id. On the eve of trial, the plaintiff presented the court with a motion to reconsider its ruling on the motion in limine, which was denied as being untimely. See id. at 1 5.
116 On appeal, the Utah Supreme Court refused to consider whether the trial court's granting of the defendant's motion in limine was proper, because "Tschaggeny's counsel invited that result." Id. at €12. The court maintained:
At the hearing on the motion in limine, Tschaggeny's counsel essentially stipulated that it be granted.... Thus, despite his initial opposition to the motion, in the end, counsel for Tschaggeny clearly communicated his agreement for the relief ordered. To the extent the trial judge committed any legal error in granting the motion, she was invited to do so by Tschaggeny's own counsel. Under the invited error doctrine, it would be inappropriate to reverse the trial court for a decision that it was invited to make by the party now attempting to renege on that invitation.
Id. at I 18.
117 Therefore, because reasonable minds could not differ as to whether Sundquist was within the course and seope of his employment, and because the parties instructed the trial court to decide the issue as a matter of law, I would affirm the ruling below.