Ovecka v. Burlington Northern Santa Fe Railway Co.
145 N.M. 113, 194 P.3d 728, 2008 NMCA 140 (2008)
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Rule of Law:
An employer is not vicariously liable for an employee's negligent actions if the employee's conduct at the time of the injury was a major deviation from the scope of employment, purely personal in nature, and not furthering the employer's business or under its control. An employer is also not directly liable for negligent hiring/retention if the employee's job duties did not create a foreseeable risk of harm to the specific plaintiff at the time and place of the injury, even with knowledge of prior issues.
Facts:
- Kenneth Long was a member of a mobile surfacing gang employed by Burlington Northern Santa Fe Railway Company (BNSF).
- Long had a history of alcohol problems, including a 1997 DWI conviction, inpatient treatment in 1997 and 1999, a 2002 DWI conviction (resulting in license revocation in 2003, unreported to BNSF), and instances in 2003 where supervisors/coworkers smelled alcohol on him.
- On Friday, August 1, 2003, Long worked in the Rio Puerco valley and was scheduled to begin work near Grants the next morning at 5:00 a.m.
- After finishing work between 3:30 and 4:00 p.m., Long drove his sister’s uninsured car from the Rio Puerco work site to Grants.
- In Grants, Long picked up groceries and a 12-pack of beer, then drove approximately 85 miles west toward Gallup, in the opposite direction from his scheduled work site.
- Long took the groceries to family members in Thoreau, then visited a cousin near Gallup to discuss personal distress, leaving around 7:00 p.m. with an intention to visit his father before returning to Grants.
- Around 9:00 p.m., while driving erratically eastward back towards Grants on I-40, Long's car crossed the median and collided head-on with a car driven by Angela Ovecka, 35 miles west of Grants.
- Both Angela Ovecka and Kenneth Long were killed in the crash, and Long's blood alcohol content was 0.362.
Procedural Posture:
- Plaintiffs, the family of Angela Ovecka, sued Burlington Northern Santa Fe Railway Company (BNSF) in district court (trial court) for vicarious liability for negligence and direct liability for negligent hiring and supervision.
- The district court granted summary judgment in favor of BNSF on all claims.
- Plaintiffs appealed the district court's grant of summary judgment to the New Mexico Court of Appeals (intermediate appellate court).
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Issue:
Does an employer bear vicarious liability for an employee's negligent actions, or direct liability for negligent hiring and retention, when the employee causes a fatal accident while highly intoxicated, far from his work site, and engaged in personal activities outside the employer's control and business interest, despite having a history of alcohol abuse known to the employer?
Opinions:
Majority - Kennedy
No, BNSF is not vicariously or directly liable for Angela Ovecka's death because Kenneth Long was not acting in the course and scope of his employment at the time of the accident, nor did BNSF's negligent hiring or retention proximately cause the injury. The court applied a four-point test (from Lessard v. Coronado Paint & Decorating Ctr., Inc. and Narney v. Daniels) and a three-circumstance test (clarified in Lessard) to determine if Long's actions were within the scope of employment for vicarious liability. While BNSF consented to Long driving by paying mileage for work-related travel, it had de minimis control over his personal driving, and his extensive personal trip (85 miles west of Grants and back) for visiting family, picking up groceries and beer, and addressing personal distress constituted a 'major deviation' from employment. His actions were not actuated by an intent to serve BNSF, nor was he under BNSF's control or in an area reasonably close to authorized employment at the time of the collision. Therefore, as a matter of law, he had not returned to the course of employment. The court explicitly distinguished workers' compensation 'traveling employee' rules from common law tort vicarious liability due to different policy rationales. For direct liability, the court requires a breach of a recognized duty to a foreseeable plaintiff. This necessitates foreseeability of harm and a public policy basis for imposing a duty. The court distinguished this case from others where employer involvement (e.g., requiring vehicle use, providing means for harm, placing plaintiff in a zone of danger) created a foreseeable risk and duty. Here, Long's job did not require him to drive, and BNSF's limited consent to pay mileage did not extend its duty to purely personal driving. Long's activities leading to the accident were entirely personal, far removed from his employment, and BNSF could not reasonably anticipate Ovecka's injury as a result of employing Long given these circumstances. As a matter of law, BNSF's retention of Long was not a proximate cause of Ovecka's death.
Concurring - Lynn Pickard
I concur.
Concurring - Michael D. Bustamante
I concur.
Analysis:
This case clarifies the distinction between workers' compensation and tort law regarding 'scope of employment,' emphasizing that the broader interpretation in workers' compensation does not apply to vicarious liability claims. It reinforces the high bar for establishing vicarious liability when an employee is driving a personal vehicle, particularly when there is a significant deviation from work-related activities. The decision also limits employer direct liability for negligent hiring/retention, requiring a strong causal nexus between the employer's actions (e.g., specific job duties, employer control over the instrumentality of harm) and the injury, rather than just knowledge of an employee's propensities.
