O'Shea v. Welch
350 F.3d 1101 (2003)
Premium Feature
Subscribe to Lexplug to listen to the Case Podcast.
Rule of Law:
Under the doctrine of respondeat superior, an employer may be held liable for an employee's tortious conduct if the employee's personal deviation from a business errand is slight and does not constitute a complete abandonment of employment. Whether a deviation is a 'slight detour' (within scope) or a 'substantial frolic' (outside scope) is generally a question of fact for a jury.
Facts:
- Mr. Welch, a store manager for Oseo, frequently used his personal vehicle for work-related errands.
- Welch was driving his personal car from his store to the Oseo District Office to deliver football tickets obtained from a vendor for distribution to other managers.
- During the drive, Welch made a 'spur of the moment' decision to get an estimate for routine maintenance on his car.
- While attempting to make a left turn into a service station to get the estimate, Welch's car struck a car driven by the Appellant, causing injury.
Procedural Posture:
- Appellant filed a negligence claim against Mr. Welch and his employer, Oseo, in U.S. District Court.
- The parties filed cross-motions for summary judgment on the issue of whether Welch was acting within the scope of his employment.
- The district court granted Oseo's motion for summary judgment, dismissing Oseo from the lawsuit.
- The district court denied Appellant's motion for summary judgment and a subsequent motion to reconsider.
- Following Oseo's dismissal, a bench trial on damages was held against Mr. Welch alone, resulting in a judgment of $1,014,503.70 against him.
- Appellant (plaintiff) appealed the district court's grant of summary judgment in favor of Oseo (appellee) to the U.S. Court of Appeals for the Tenth Circuit.
Premium Content
Subscribe to Lexplug to view the complete brief
You're viewing a preview with Rule of Law, Facts, and Procedural Posture
Issue:
Under the doctrine of respondeat superior, does an employee's brief deviation from a work-related trip for a personal errand, such as stopping for routine car maintenance, constitute an abandonment of employment as a matter of law?
Opinions:
Majority - McKay, Circuit Judge.
No. An employee's brief deviation from a work-related trip for a personal errand does not constitute an abandonment of employment as a matter of law; rather, it presents a question of fact for the jury. The court predicted that Kansas would adopt the 'slight deviation' rule, which distinguishes between a 'detour' (a deviation sufficiently related to employment to fall within its scope) and a 'frolic' (a substantial deviation or abandonment of employment). The court found that the existing Kansas pattern jury instruction, which asks whether conduct is 'reasonably incidental' to employment, is compatible with this analysis. Applying factors relevant to the slight deviation rule—such as the employee's intent, the nature and time of the deviation, and the incidental acts an employer might expect—the court concluded that reasonable minds could differ as to whether Welch's stop was a mere detour or a complete departure. Therefore, the issue was not suitable for summary judgment and should be decided by a jury.
Analysis:
This decision clarifies that, in federal courts applying Kansas law, the 'slight deviation' rule is the governing framework for determining an employer's vicarious liability for an employee's torts during a personal detour from a business trip. It establishes that such questions are fact-intensive inquiries for a jury, making it more difficult for employers to obtain summary judgment in cases where an employee's deviation is not extreme. By predicting Kansas's adoption of this rule, the court promotes consistency with the state's existing approach in worker's compensation law and aligns with the majority of jurisdictions that have considered the issue.
Unlock the full brief for O'Shea v. Welch