O'Shea v. Welch

United States Court of Appeals for the Tenth Circuit · 2003 · Torts

TortsRespondeat superiorScope of employmentVicarious liabilitySlight deviationrespondeat superiorscope of employmentslight deviation

Facts

Welch, an Osco store manager, was driving from his store to the Osco District Office to deliver football tickets obtained from a vendor for distribution among Osco managers. He frequently used his own vehicle for Osco business. While en route, he decided on the spur of the moment to turn into a service station to get an estimate for routine, non-emergency maintenance on the car, which was used for work. As he attempted the left turn into the station, he allegedly failed to yield and struck O'Shea's car.

Issue

Whether the district court erred in granting summary judgment to Osco by holding, as a matter of law, that Welch was outside the scope of his employment when he attempted to turn into a service station for non-emergency maintenance while driving to deliver vendor tickets to Osco's District Office. Also, whether the underlying trip to the District Office itself presented a triable issue on scope of employment.

Rule

Under Kansas law, an employee acts within the scope of employment when performing services for which he was employed or doing anything reasonably incidental to that employment, judged by whether the conduct should have been fairly foreseen from the nature of the employment and related duties. In third-party liability cases, Kansas would apply slight deviation analysis: a minor or mixed-purpose deviation does not remove conduct from the scope of employment, but a deviation so substantial as to amount to an entire departure does. Where reasonable minds could differ about whether the employee remained partly engaged in the employer's business, the issue is for the jury.

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One of 10 multiple-choice questions for this case. Pick an answer to see why.

Nina Flores, a regional sales supervisor for Prairie Vista Supply, was driving from the company's Tulsa branch to its Oklahoma City office to deliver signed contracts. Two blocks from the direct route, she turned toward a pharmacy to pick up her own allergy medication, and before she parked, she collided with Omar Kent's car.

If Omar sues Prairie Vista Supply under respondeat superior, which is the best analysis?

Explanation. Under the majority rule applied here, an employee remains within the scope of employment when performing assigned work or doing something reasonably incidental to it, judged by foreseeability from the nature of the job. In third-party cases, a slight or mixed-purpose deviation does not automatically remove the conduct from the scope of employment; only a substantial deviation amounting to an entire departure does. Because Nina was already on a business trip, remained close in time and distance to the route, and had not completed a clearly separate personal mission, reasonable minds could differ, so the issue would ordinarily go to the jury. (Derived from O'Shea v. Welch (n.d.).)