DA 07-0463

IN THE SUPREME COURT OF THE STATE OF MONTANA

2008 MT 332

JAMES BOWYER and DOROTHY BOWYER,

 Plaintiffs and Appellants,

 v.

SHANE K. LOFTUS and

ELENBURG EXPLORATION, INC.,

 

 Defendants and Appellees.

APPEAL FROM: District Court of the Thirteenth Judicial District,

In and For the County of Yellowstone, Cause No. DV 04-1240

Honorable Ingrid G. Gustafson, Presiding Judge

COUNSEL OF RECORD:

For Appellants:

Daniel P. Buckley; Buckley Law Office, Bozeman, Montana

John A. Hauf; Attorney at Law, Billings, Montana

For Appellees:

Christopher C. Voigt; Crowley, Haughey, Hanson, Toole

& Dietrich, Billings, Montana

James M. Kommers; Kommers Law Firm, Bozeman, Montana

Submitted on Briefs: May 21, 2008

 Decided: September 30, 2008

Filed:

__________________________________________

Clerk

September 30 2008
2

Chief Justice Karla M. Gray delivered the Opinion of the Court.

¶1 The Thirteenth Judicial District Court, Yellowstone County, granted summary 

judgment in favor of defendant Elenburg Exploration, Inc. (Elenburg), in this action for 

damages resulting from an automobile collision. James Bowyer and Dorothy Bowyer 

(Bowyers) appeal. We affirm. 

¶2 The issue on appeal is whether the District Court erred in concluding that Shane 

Loftus was not acting within the course and scope of his employment for Elenburg at the 

time of the automobile collision. 

BACKGROUND

¶3 Shane Loftus (Loftus) was employed by Elenburg as a well driller. In that capacity, 

he traveled to various job sites in several states with three or four other members of a drilling 

crew. 

¶4 On March 23, 2004, Loftus worked his shift at a drilling site outside Absarokee, 

Montana. When the shift ended at 2:30 p.m., Loftus drove three other members of his crew 

back to their motel rooms in Laurel, Montana. After cleaning up from work, Loftus and one 

of those crew members, Tom Wilson, traveled in Loftus’s truck about 30 miles south to 

Bridger, Montana, for dinner and drinks. Loftus and Wilson next continued on a sightseeing 

drive to Red Lodge, Montana, where they stopped at a bar, and then to Absarokee, where 

they stopped at another bar. At about 8:30 p.m., Loftus and Wilson were nearing the end of 

their 90-mile roundtrip drive, heading back toward Laurel and their motel. While attempting 

to pass another vehicle in a no-passing zone, Loftus collided head-on with the Bowyers’ 
3

vehicle, totaling both vehicles and injuring all occupants of both vehicles.

¶5 The Bowyers filed this action against Loftus and Elenburg, seeking to hold Elenburg 

vicariously liable for their injuries under a theory that Loftus was acting within the course 

and scope of his employment at the time of the collision. Following discovery, Elenburg 

moved for summary judgment. The District Court held a hearing on the motion and later 

granted summary judgment in Elenburg’s favor. For purposes of this appeal, the court 

certified the judgment as final pursuant to M. R. Civ. P. 54(b).

STANDARD OF REVIEW

¶6 We review a summary judgment de novo, applying the same evaluation as the trial 

court under M. R. Civ. P. 56(c). The moving party must establish both the absence of a 

genuine issue of material fact and entitlement to judgment as a matter of law. To raise a 

genuine issue of material fact after the moving party has met its burden of proof, the 

opposing party must present substantial evidence essential to one or more elements of its 

case, rather than mere conclusory or speculative statements. We review a trial court’s 

determinations on questions of law for correctness. Farmers Union Mut. Ins. Co. v. Horton, 

2003 MT 79, ¶ 10, 315 Mont. 43, ¶ 10, 67 P.3d 285, ¶ 10 (citations omitted).

DISCUSSION

¶7 Did the District Court err in concluding that Loftus was not acting within the 

course and scope of his employment for Elenburg at the time of the automobile 

collision?

¶8 An employer is liable for the acts of an employee only when the employee is acting 

within the scope of his or her duties to the employer. Gentry v. Douglas Hereford Ranch, 
4

Inc., 1998 MT 182, ¶ 39, 290 Mont. 126, ¶ 39, 962 P.2d 1205, ¶ 39 (citations omitted). As 

Bowyers point out, whether an act was within the scope of employment is generally a 

question of fact. See Kornec v. Mike Horse Mining Co., 120 Mont. 1, 5, 180 P.2d 252, 255 

(1947). However, it is a question of law for the court when only one legal inference may 

reasonably be drawn from the facts. See Gentry, ¶¶ 39-40; Keller v. Safeway Stores, Inc., 

111 Mont. 28, 36, 108 P.2d 605, 610 (1940). 

¶9 In moving for summary judgment, Elenburg relied on undisputed evidence that 

Loftus’s shift had ended over five hours before the collision occurred, and that Loftus was 

not returning home from work, being compensated for his time or mileage or engaging in 

any work-related activity at the time of the collision. The District Court agreed. 

¶10 Bowyers claim that, because Loftus was returning to the motel where he needed to 

pick up his crew members the following morning, he was acting within the course and scope 

of his employment. As they point out, it was undisputed that Loftus’s job duties included 

transporting his crew to the job site and back to the motel in his personal vehicle. Bowyers 

rely on Webster v. Mountain States Tel. & Telegraph Co., 108 Mont. 188, 199, 89 P.2d 602, 

605 (1939) (citation omitted), for our determination that “[i]f the work of the employee 

creates the necessity for travel, he is in the course of his employment, though he is serving at 

the same time some purpose of his own.” 

¶11 In Webster, the defendant driver was a telephone company lineman. He was driving 

to a new work site, using his own car but being paid his usual wages, when he struck a 

pedestrian. Webster, 108 Mont. at 197, 89 P.2d at 604. We ruled the trial court properly 
5

submitted the question of the employer’s liability under the doctrine of respondeat superior

to the jury. Webster, 108 Mont. at 201, 89 P.2d at 606. 

¶12 The fact that the driver in Webster was being paid wages during the time he travelled 

and struck the pedestrian is a critical distinction between that case and the case presently 

before us in relation to the course and scope of employment. Here, discovery revealed that, 

once Loftus returned the Elenburg employees to the motel at the end of the shift, he and the 

other employees were on their own personal time until they reported for the ride to their next 

shift. Employees were not required to seek permission from or inform Elenburg if they left 

the motel. Although Elenburg paid for the motel, it did not provide employees with meal 

allowances or instruct them on where to eat. Elenburg imposed no curfew or other rules 

regarding off-duty activities. 

¶13 The remaining cases advanced by the Bowyers are, like Webster, readily 

distinguishable. In Welch v. Thompson, 145 Mont. 69, 72-73, 399 P.2d 748, 750 (1965), the 

defendant driver was driving his own vehicle on his way to a new work site, during normal 

working hours and while being paid, when he was involved in an automobile accident. We 

affirmed the trial court’s legal determination that the driver was under the supervision and 

control of his employer at the time of the accident. Welch, 145 Mont. at 79, 399 P.2d at 754. 

In Berrettoni v. U.S., 436 F.2d 1372 (9th Cir. 1970), a member of the United States Air Force 

was driving a vehicle involved in an automobile accident in which the plaintiffs were 

injured. The driver was on “official travel status” on his way to a new station assignment at 

the time of the accident. The Ninth Circuit Court of Appeals affirmed a trial court’s legal 
6

determination that the driver was acting within the course and scope of his employment. 

Berrettoni, 436 F.2d at 1374. Bowyers also cite several cases from other jurisdictions, all of 

which can be factually distinguished from the present case in that the drivers/employees

involved were on their way to or from work, from job site to job site, directly to or from 

dinner, driving their employer’s vehicle, or being paid by the employer for the travel. See

Gordy Constr. Co. v. Stewart, 456 S.E.2d 245, 246 (Ga. 1995); Helm v. Wismar, 820 S.W.2d 

495, 496 (Mo. 1991); Makoske v. Lombardy, 366 N.Y.S.2d 475, 478 (1976); Hinman v.

Westinghouse Elec. Co., 471 P.2d 988, 992 (Ca. 1970); Hynes v. Donaldson, 395 P.2d 221, 

223 (Colo. 1964). None of these cases raises an issue concerning course and scope of 

employment under a factual record at all like that before us here. 

¶14 Finally, Bowyers argue Loftus was under Elenburg’s control even when he was off 

duty based on deposition evidence regarding Elenburg’s self-described “culture of safety” 

policy. The policy recognized that drilling rigs are dangerous places. Sick or hungover 

employees were not allowed on the rig. Employees were subject to random alcohol and drug 

screening and disciplinary action was possible if off-the-clock activities caused safety issues 

at the rig. In addition, company policy prohibited employees from stopping on the way to or 

from work. 

¶15 The “culture of safety” policy disclosed during discovery does not support Bowyers’ 

argument that Loftus’s acts in the collision were within the scope of his employment. The 

“culture of safety” policy addressed off-duty activities of employees only insofar as those 

activities affected on-duty work performance.
7

¶16 In a tort action filed against an employer under the doctrine of respondeat superior, 

summary judgment for the employer is proper if the employee’s activity is not related to the 

employer’s business. Gentry, ¶¶ 39-40. In this case, it is undisputed that the collision 

occurred during Loftus’s off-duty hours and he was not being paid for his travel. Loftus was 

not driving to or from work at the time of the collision, but was returning from a 90-mile 

non-work-related jaunt which had begun with dinner and continued with sightseeing and barhopping. Nothing of record indicates Loftus’s travel that evening was at Elenburg’s request 

or even with its knowledge. 

¶17 The District Court stated that, in this case, only one legal inference could be drawn 

from the facts. We agree. Reasonable minds reviewing the undisputed facts of this case 

could not differ in determining that Loftus’s acts on the evening of the collision were not 

within the course and scope of his employment with Elenburg. Elenburg has established

both the absence of a genuine issue of material fact and its entitlement to judgment as a 

matter of law. Bowyers have not, in turn, raised a genuine issue of material fact about 

whether Loftus was acting within the course and scope of his employment at the time of the 

collision. Therefore, the District Court did not err in granting summary judgment to 

Elenburg.

¶18 Affirmed.

/S/ KARLA M. GRAY

We concur:
8

/S/ BRIAN MORRIS

/S/ JAMES C. NELSON

/S/ PATRICIA COTTER

/S/ JIM RICE