Speculation has no indicia of reliability and is inadmissible because of its lack of probative value as evidence of a material fact in a case. Manuel's statements concerning the reasons for his actions are inadmissible. Therefore, no evidence exists in this case on which a trier of fact could draw a reasonable inference that Manuel was acting within the scope of his employment when he took and drove the Warner truck that was involved in the collision with the Halls. Consequently, Warner may not be held liable for the acts of Manuel under the doctrine of respondeat superior. Although the doctrine of respondeat superior does not apply in this case, Warner and Carolina may still be liable for Manuel's actions if he was acting with the permission of Warner to use its truck for personal reasons.
Permission can be actual or implied depending upon the past dealings of the parties.
The liberal rule provides that the initial permission encompasses any use by the employee even though the use was not contemplated by the employer when permission was first given. The liberal rule is subject to limitations and does not apply, for instance, where the driver is expressly prohibited from making personal use of the vehicle. When an employer places express restrictions on the use of its vehicles by others, the determinative question becomes whether the driver's use of the vehicle was restricted in the first place, rather than whether the driver deviated from a use contemplated by the employer. When there is an express prohibition against certain actions by an employer, implied permission may not be found unless the employer acquiesced in an employee violation of company policy relaxing those restrictions. The Halls have not presented any evidence which indicates that Warner had no such rules restricting the use of the trucks nor have they produced any evidence that shows that Lou Warner was remiss in her enforcement of these rules allowing an inference of implied consent to be drawn.