## F I L E D United States Court of Appeals Tenth Circuit 

### NOV 25 2003 

### PATRICK FISHER Clerk PUBLISH
UNITED STATES COURT OF APPEALS

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 Par k, Kansas, for PlaintiffAppellant. 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,1 Mr. Welch is not a party to this appeal. -2- Chicago, Illinois, with him on the brief), for Defe ndant-Appellee.

Before HARTZ , HOLLOWAY , and McKAY , Circuit Judges.

McKAY , Circuit Judge.

Appellant filed a claim in the district court for d amages against Defendant Welch 1 based on negligence after Appellant sustained inju ries when the car that he was driving was struck by a car driven by Mr. We lch. 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. App ellant 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 sto re manager. He was driving from his store to the Osco District Office to deliv er football tickets for that weekend which were obtained from a vendor for distr ibution among Osco managers. Mr. Welch frequently made trips for Osco using his own vehicle. During his drive, Mr. Welch remembered that he need ed to have some routine maintenance done on his car. He made a spur of the moment decision to pull into-3-

a service station for an estimate. Mr. Welch alleg edly failed to yield in making a left turn and struck Appellant’s car. On cross-motions for summary judgment, the distric t 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, t he district court held that it did not matter because, even if the trip had been w ithin the scope of Mr. Welch’s employment, the attempted stop at the service stati on was not. The district court also denied Appellant’s motion to reconsider or, inthe alternative, to certify a question to the Kansas Supreme Court. After Osco was dismissed from the case, a bench tri al was held on the issue of damages. Defendant Welch did not present eviden ce or cross-examine witnesses. The court entered judgment against Mr. Welch in the amount of $1,014,503.70, “question[ing] whether it would arri ve at the same result in a true adversary proceeding . . . .” Aplt. App., Vol. II, at 349. The specific issue we are asked to address on appea l is whether the district court erred in granting summary judgment to Appellee Osco on wh ether Mr. Welch was within the scope of his employment when h e turned into the service station for non-emergency maintenance on his car wh ile driving to deliver a-4-

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 f or summary judgment is granted when the record demonstrates th at “there is no genuine issue as to any material fact and that the moving party i s 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 Kan sas jury instruction is an accurate illustration of Kan sas scope of employment law: An employee is acting within the scope of [his empl oyment] when [he] is performing services for which [he] has been[employed], or when [he] is doing anything which is reasonably inc idental to [his employment]. The test is not necessarily whether t his specific conduct was expressly authorized or forbidden by th e employer[], but whether such conduct should have been fairly forese en 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 o n 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 case s from other jurisdictions. In Carroll v. Western Union Telegraph Co. , 17 P.2d 49 (Wash. 1932), a motorcycle messenger, not then being busy, informedhis superior that he needed-5-

to get a part for his motorcycle. Given permission , the messenger then proceeded on his motorcycle a considerable and indirect dista nce to complete his personal errand. He was not sent on an errand for his emplo yer; he was excused temporarily from his post for his own private advantage. However, there was no deduction in pay. The accident occurred as the mes senger 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 mo rning 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 empl oyer. 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 his2 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. Lambe rt Auto Elec. Co. , 522 P.2d 130 (Colo. Ct. App. 1974); Western Union Teleg raph 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...) -6- employee. We note that though the district court relied heavi ly on Carroll and Schofield , neither of these cases is from Kansas and, more i mportantly, 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 vehicl e used for work. However, in our case, Mr. Welch was arguably delivering tick ets for Osco when he attempted to make a turn into a service station. I n 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 ac ross town that had nothing to do with his employment. In Sch ofield , 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 ouranalysis. Due to the absence of binding authority, Appellant urges us to decide that Kansas would adopt the “slight deviation” rule whic h it already follows in worker’s compensation cases. Approximately half of the states 2 , supported by2 (...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. Prudent ial 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). -7- American Jurisprudence , have applied some form of the slight deviation an alysis 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 afrolic or a detour; the latter is a deviation that is sufficien tly related to the employment to fall within its scope, while the form er is the pursuit of the employee’s personal business as a substantial d eviation from or an abandonment of the employment. If an employee w holly abandons, even temporarily, the employer’s business for personal reasons, the act is not within the scope of employm ent, and the employer is not liable under respondeat superior fo r 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 diversio n severs the employment relationship. Acts that are necessary t o the comfort, convenience, health, and welfare of the employee wh ile at work are not outside the scope of employment, if the conductis not a substantial deviation from the duties of employment

.-8-

Id. (footnotes omitted). Personal acts that are not f ar removed in time, distance, or purpose are deemed to be incidental to the emplo yment. 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 thirdparty liability cases. Kansas has not had the occa sion to consider the slight deviation analysis in such cases. However, it has adopted the analysis in worker’s compensation cases. We must therefore determine wh ether Kansas would adopt the slight deviation analysis in cases such as ours to inform our judgment. Appellant asserts that the Kansas Supreme Court wou ld adopt and apply the slight deviation rule to find that Mr. Welch was wi thin the scope of his employment with Osco when attempting the turn for an estimate on vehicle maintenance. Appellant further argues that the Kan sas pattern jury instruction, infra , is itself a rejection of a bright-line rule and d emands that an employee’s acts be put into context in order to determine whatis “reasonably incidental” to employment and what “conduct should have been fairl y foreseen.” Slight deviation analysis provides a framework for such ananalysis. A slight deviation might be considered reasonably incidental to employ ment while a substantial deviation would not. We agree that the Kansas jury instruction is compat ible with slight3 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 Trainin g School for Nurses , 578 P.2d 1121 (1978), the plaintiff was injured while d elivering 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 inju ries 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 carry ing.” Id. at 1130. The court did not mention substantial deviation. However, itcompared the janitor’s conduct with “an assault by an employee . . . motivated ent irely by personal reasons such as malice or spite or by a desire to accomplish som e unlawful purpose.” Id. at 1125. An application of substantial deviation woul d most likely have had the same outcome because the janitor’s prank was a subs tantial deviation in terms of purpose. -9- deviation analysis. 3 Of the jurisdictions that have adopted slight dev iation analysis, several have jury instructions that are s ubstantially 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 i ncidental to such work. The question is not necessarily whethersuch conduct was expressly authorized or forbidden, but rather w hether it could have been fairly foreseen from the nature of his wo rk and the duties relating to it, and whether he acted, at least in p art, in an effort to serve his employer. Miss. Prac. Model Jury Instr. Civil § 4:4 (2002); s ee also Ark. Model Jury Instr., Civil AMI 703 (4th ed. 1999); 4 Minn. Prac. Jury In str. 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, a nd it coexists with slight deviation analysis. Colotta v. Phillips , 85 So.2d 574 (Miss. 1956).-10-

Unfortunately, Kansas law does not provide specific guidance in the instant case. The only guidance is from a Kansas jury inst ruction. To make a specific and detailed list of all personal stops that are an d 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 factscenario. The Kansas pattern jury instruction, similar to the instructions cited above from other jurisdictions, does not express a bright-line rule but instead ill ustrates a type of slight deviation rule which requires a determination of what is reas onably incidental to employment and what conduct should have been fairlyforeseen. Additionally, Kansas has already adopted the slightdeviation analysis in worker’s compensation cases. We agree with Appelle e that, even though an employee’s acts may be deemed within the scope of h is 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 polic ies behind worker’s compensation and third party liability cases are di fferent. However, it supports our analysis that Kansas has considered and adoptedslight deviation analysis in at least one area of the law. Applying slight deviation analysis to our case, we think that the question of-11-

whether the turn was within Mr. Welch’s scope of employment is for the jury to decide. Whether an employee is acting within the s cope of his employment is generally a jury question. Birkner v. Salt Lake Co unty , 771 P.2d 1053, 1057 (Utah 1989). “[W]henever reasonable minds may diff er as to whether the [employee] was at a certain time involved wholly orpartly 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 n ot the servant at the time of an injury to another was acting . . . in th e scope of his employment is for determination by the jury, except in plain and indi sputable cases.”). The rule has been stated that [w]hether there has been a deviation so material orsubstantial as to constitute a complete departure is usually a questi on of fact. In some cases the deviation may be so marked, and in others so slight relatively, that the court can say that no conclusi on other than that the act was or was not a departure could reasonablybe 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 evidenc e properly one for the jury. Kruse v. White Bros. , 253 P. 178, 181 (Cal. Ct. App. 1927) (citing Heal ey 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 unc ertain in extent and degree, or-12-

where the surrounding facts and circumstances leave room for legitimate inferences as to whether, despite the deviation, th e employee was still engaged in the employer’s business, the question is for the ju ry.”). 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 t hat the deviation be for purposes entirely personal to the servant (39 C orp. Jur., p. 1297, Master and Servant, §§ 1493, 1494); and a deviationwill be regarded as immaterial if the latter combines his own busine ss 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. 12 97, 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 c ourse of his duty does not release his employer from liability. An e mployee does not cease to be acting within the course of his employm ent because of an incidental personal act, or by slight deflections f or a personal or private purpose, if his main purpose is still to ca rry on the business of his employer. Such deviations which do not amou nt to a turning aside completely from the employer’s business, so a s to be inconsistent with its pursuit, are often reasonablyexpected and the employer’s assent may be fairly assumed. In many i nstances they are the mingling of a personal purpose with the pursuitof the employer’s business. In order to release an employer from lia bility, the-13-

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. As ai , 237 Cal. Rptr. 718, 722 (Cal Ct. App. 1987) (“Where the employee may be dee med to be pursuing a business errand and a personal objective simultaneo usly, he will still be acting within the scope of his employment.”). Appellant argues that Mr. Welch was acting within t he scope of his employment and made only a slight deviation from hi s 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 s light 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 devi ation; (4) the work for which the employee was hired; (5) the incidental acts rea sonably 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 a n estimate for non-emergency maintenance on a car used for business. In terms o f purpose, it was maintenance to a vehicle used regularly in performing his job d uties for Osco. While his stop-14-

was not for emergency maintenance for his car, his stop for routine maintenance on a car used for business purposes could be consid ered enough of a mixed purpose by a jury to keep him within the scope of h is employment with Osco. In terms of time and place, the accident occurred m inutes 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 r ight off the main road. At the time of the accident, he had not entered the servic e 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 t he time of the accident. It is unclear how long the estimate would have taken. Ho wever, we do know that if he had deviated at the time of the accident, the lengt h 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 st ore manager was en route from one store to another or from a store to the Distric t 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-15-

prescription for his wife. The court held that “a proportionately slight or expectable deviation will not relieve an employer o f 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] wh ich the employer might reasonably be deemed to have anticipated and assent ed 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 Dis trict Office, we hold that a reasonable jury could conclude that he was acting w ithin the scope of his employment when he attempted to turn into the servi ce station. A reasonable jury could decide that Mr. Welch’s attempted deviation f rom his direct route to obtain non-emergency vehicle maintenance was something whi ch Osco “might reasonably be deemed to have anticipated and assent ed to, and was not such as to amount to an abandonment of the employment.” Id. The district court did not specifically decide whet her 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 th at genuine issues of material fact exist with respect to whether defe ndant Welch’s delivery of the Chiefs tickets was within the scope of his employment, the court need not address this issue b ecause it-16-

concludes that, as a matter of law, defendant Welch ’s attempted stop at the service station for routine vehicle maintena nce was outside the scope of his employment. Aplt. App., Vol. II, at 311. We agree with the dis trict 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.