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VIII.A. Fundamentals of Vicarious Liability
  • 1 Miller v. Reiman Wuerth Co.--"The Bank Errand Case"

    Can personal errands done during business hours fall under the scope of employment?

    2

    Page 20

    5
    598 P.2d 20

    8
    Patricia A. MILLER and Harry M. Miller, Appellants (Plaintiffs below),
    v.
    REIMAN-WUERTH COMPANY, a Wyoming Corporation, Appellee (Defendant below), James W. Grandpre, Wyoming Beverage, Inc., Oliver Olsen, d/b/a Frontier Distributing Co., the State of Wyoming, State Highway Commission of Wyoming, and City of Cheyenne(Defendants below).

    11
    No. 5074.

    14
    Supreme Court of Wyoming.

    17
    July 27, 1979.
    19

    Page 21

    21

            David H. Carmichael, of Carmichael, McNiff & Patton, Cheyenne, and John E. Stanfield, of Smith, Stanfield & Scott, Laramie, signed the briefs, and David H. Carmichael, Cheyenne, appeared in oral argument on behalf of appellants.

    23

            David D. Uchner and Nick Kalokathis, of Lathrop & Uchner, P.C., Cheyenne, signed the brief and David D. Uchner, Cheyenne, appeared in oral argument on behalf of appellee.

    25

            Before RAPER, C. J., and McCLINTOCK, THOMAS, ROSE and ROONEY, JJ.

    27

            ROONEY, Justice.

    29

            Appellants-plaintiffs appeal from a summary judgment in favor of appellee-defendant (Reiman-Wuerth Company) in which the District Court determined that such be final and that there was no just reason for delay in the entry of it. Appellee, Reiman-Wuerth Company, was only one of several defendants in an action for alleged damages resulting from a multi-vehicle collision. The driver and owner of one of the vehicles involved in the collision, James W. Grandpre (also a defendant), was an employee of appellee. Appellants state the issue on appeal to be: "Is there a genuine issue of material fact concerning the vicarious liability of Appellee for the acts of its servant (Grandpre) which caused damage to the (appellants)?" The trial court found that there was no genuine issue as to any material fact and that appellee was entitled to a summary judgment as a matter of law. We affirm.

    31

            Grandpre was employed as a carpenter by appellee on a construction jobsite in Cheyenne. On January 6, 1977, Grandpre requested permission to leave the job for the purpose of depositing his paycheck before 3:00 p. m. in a local bank so that some of his outstanding checks would not be dishonored. Also, he stated that he felt his ex-wife's employment by the bank might be jeopardized if his account were overdrawn. He was granted the requested permission by his supervisor.

    33

            It was the policy of appellee to allow employees to take time off for such personal activities, but it expected employees to take only the time necessary to accomplish such, and it did not pay employees for the time involved therein. Grandpre made his request and made his trip to the bank under these conditions. He drove his own automobile to the bank, made the deposit, and

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    Page 22

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            The foregoing facts are not in dispute. The dispute arises over appellants' position: (1) that the trip was, at least in part, for the benefit of appellee or was employment related inasmuch as it contributed to Grandpre's "happiness" and thus made him a better and more efficient employee all to appellee's benefit as evidenced by appellee's policy which made the trip possible; (2) that appellee exercised control over the trip by requiring Grandpre to return to work immediately after completing his personal activity; and (3) that the determination of these two things (and thus the determination of whether or not the trip was in the scope of employment) was a question of fact for the jury. The fallacy of appellants' position lies in a misunderstanding or misapplication (1) of the definition of the term "scope of employment" and (2) of those issues in this matter that are questions of fact.

    39

            The meaning and application of the term "scope of employment" has necessitated considerable judicial attention. The general principles relative thereto are set out in 1 Restatement of Agency 2d (ALI 1958), pp. 504-524, as follows:

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    § 228. General Statement

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    "(1) Conduct of a servant is within the scope of employment if, but only if:

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    "(a) it is of the kind he is employed to perform;

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    "(b) it occurs substantially within the authorized time and space limits;

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    "(c) it is actuated, at least in part, by a purpose to serve the master, and

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    "(d) if force is intentionally used by the servant against another, the use of force is not unexpectable by the master.

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    "(2) Conduct of a servant is not within the scope of employment if it is different in kind from that authorized, far beyond the authorized time or space limits, or too little actuated by a purpose to serve the master.

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    § 229. Kind of Conduct within Scope of Employment

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    "(1) To be within the scope of employment, conduct must be of the same general nature as that authorized, or incidental to the conduct authorized.

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    "(2) In determining whether or not the conduct, although not authorized, is nevertheless so similar to or incidental to the conduct authorized as to be within the scope of employment, the following matters of fact are to be considered:

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    "(a) whether or not the act is one commonly done by such servants;

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    "(b) the time, place and purpose of the act;

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    "(c) the previous relations between the master and the servant;

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    "(d) the extent to which the business of master is apportioned between different servants;

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    "(e) whether or not the act is outside the enterprise of the master or, if within the enterprise, has not been entrusted to any servant;

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    "(f) whether or not the master has reason to expect that such an act will be done;

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    "(g) the similarity in quality of the act done to the act authorized;

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    "(h) whether or not the instrumentality by which the harm is done has been furnished by the master to the servant;

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    "(i) the extent of departure from the normal method of accomplishing an authorized result; and

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    "(j) whether or not the act is seriously criminal.

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    § 230. Forbidden Acts

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    "An act, although forbidden, or done in a forbidden manner, may be within the scope of employment.

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    § 231. Criminal or Tortious Acts

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    Page 23

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    "An act may be within the scope of employment although consciously criminal or tortious.

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    § 232. Failure to Act

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    "The failure of a servant to act may be conduct within the scope of employment.

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    § 233. Time of Service

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    "Conduct of a servant is within the scope of employment only during a period which has a reasonable connection with the authorized period.

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    § 234. Area of Service

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    "Conduct is within the scope of employment only in the authorized area or in a locality not unreasonably distant from it.

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    § 235. Conduct Not for Purpose of Serving Master

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    "An act of a servant is not within the scope of employment if it is done with no intention to perform it as a part of or incident to a service on account of which he is employed.

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    § 236. Conduct Actuated by Dual Purpose

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    "Conduct may be within the scope of employment, although done in part to serve the purposes of the servant or of a third person.

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    § 237. Re-entry into Employment

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    "A servant who has temporarily departed in space or time from the scope of employment does not re-enter it until he is again reasonably near the authorized space and time limits and is acting with the intention of serving his master's business."

    115

            In the most recent case in which this court considered the term "scope of employment," we said that a person was acting within the scope of employment:

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    "If, at the time of the accident, the employee is engaged in furthering the employer's business interests, and with respect thereto the employer has the right to control the details of the work and to discharge the employee for failing to follow orders without incurring liability * * *." Combined Insurance Company of America v. Sinclair, Wyo., 584 P.2d 1034, 1043 (1978).

    119

            The term "scope of employment" therefore has a distinct meaning by law. Although generally the determination as to whether or not one is acting within the scope of employment is a question of fact for the jury, Sun Land and Cattle Co. v. Brown, Wyo., 394 P.2d 387 (1964); Barnes v. Fernandez, Wyo.,526 P.2d 983 (1974), the determination of the definition of it or the standard under which it is ascertained is a question of law for the court. Durham v. State, Wyo., 422 P.2d 691 (1967); Brennan v. Leshyn, 51 Ill.App.2d 132, 201 N.E.2d 167 (1964); 75 Am.Jur.2d, Trial, § 701; 88 C.J.S. Trial § 318. Accordingly, if this case were presented to the jury, the court would have to instruct it sufficiently as to the meaning of the term "scope of employment" so that the jury could properly apply the facts under the law.

    121

            When we examine the facts of this case to which these instructions would apply, we find that this is one of the cases which come within the exception enunciated in Combined Insurance Company of America v. Sinclair,supra, to the general proposition on this point, i. e., that the scope of employment issue "is ordinarily a question of fact for the jury and becomes a question of law only when but one reasonable inference can be drawn." The only reasonable inference that can be drawn from the facts of this case under the applicable law is that Grandpre was not acting within the scope of his employment by appellee at the time of the collision.

    123

            In focus on this point, we note that in addition to the previously recited undisputed facts, it is not contested that appellee's policy to allow its employees time off for personal errands does have some benefit in contributing to the "happiness" of the employees.

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    Page 24

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            We reach the conclusion that Grandpre was not within the scope of employment by appellee at the time of the incident even under the oft-repeated standard by which we review a denial or grant of a summary judgment on appeal: that the moving party has the burden of showing absence of a genuine issue of a material fact, Timmons v. Reed, Wyo., 569 P.2d 112 (1977); and that we look at the record from the viewpoint most favorable to the party opposing the motion, giving to him all favorable inferences to be drawn from facts contained in affidavits, exhibits, and depositions, Bluejacket v. Carney, Wyo., 550 P.2d 494 (1976); Timmons v. Reed, supra.

    129

            Grandpre's conduct at the time of the collision was not actuated in any part by a purpose to serve appellee (§ 228, 1 Restatement of Agency 2d, supra); Grandpre's errand was not done with intention to perform it as a part of or incident to a service on account of which he was employed (§ 235, 1 Restatement of Agency 2d, supra); and Grandpre was not furthering the business interests of appellee in any part at the time of the collision (Combined Insurance Company of America v. Sinclair, supra).

    131

            Grandpre was not acting in the scope of employment by appellee at the time of the collision.

    133

            Affirmed.

  • 2 Christensen v. Swenson--"The Lunch Break Case"

    Is an employee acting within the scope of her employment during her lunch break?

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    Page 125

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    874 P.2d 125

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    Jeff CHRISTENSEN and Kyle James Fausett, Plaintiffs and Petitioners,
    v.
    Gloria SWENSON and Burns International Security Services,
    Defendants and Respondents.

    11
    No. 930048.

    14
    Supreme Court of Utah.

    17
    May 9, 1994.
    19

    Page 126

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            Thomas R. Patton, Lynn C. Harris, Provo, and Vicki Rinne, Highland, for plaintiffs and petitioners.

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            Mark J. Williams, Salt Lake City, for defendants and respondents.

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    ON CERTIORARI TO THE UTAH COURT OF APPEALS

    27

            DURHAM, Justice:

    29

            This case is before the court on a petition for a writ of certiorari to the Utah Court of Appeals. Plaintiffs Jeff Christensen and Kyle James Fausett claim that the court of appeals erred when it concluded that defendant Burns International Security Services ("Burns") was not liable under the doctrine of respondeat superior for the actions of its employee, Gloria Swenson. The court of appeals determined that Swenson was acting outside the scope of her employment at the time of her automobile accident with Christensen and Fausett and therefore affirmed the trial court's grant of summary judgment. Christensen v. Burns Int'l Sec. Servs., 844 P.2d 992, 995 (Utah Ct.App.1992). We reverse.

    31

            Burns provides security services for the Geneva Steel Plant ("Geneva") in Orem, Utah. Burns employed Swenson as a security guard in June 1988. On the day of the accident, July 26, 1988, Swenson was assigned to guard duty at Gate 4, the northeast entrance to the Geneva property. Security guards at Gate 4 worked eight-hour continuous shifts, with no scheduled breaks. However, employees were permitted to take ten- to fifteen-minute unscheduled lunch and restroom breaks.

    33

            When taking their lunch breaks, Gate 4 guards generally ate a bag lunch but occasionally ordered take-out food from the sole restaurant within close physical proximity to Gate 4, the Frontier Cafe. The Frontier Cafe was located directly across the street from the Geneva plant, approximately 150 to 250 yards from Gate 4. The cafe's menu was posted near the telephone at Gate 4. Aside from vending machines located within a nearby Geneva office building, the Frontier Cafe provided the sole source of food accessible to Gate 4 guards within their ten- to fifteen-minute breaks. Indeed, the Frontier Cafe was the only restaurant in the immediate area. Whether they brought their lunches or ordered from the cafe, Gate 4 guards were expected to eat at their posts.

    35

            Shortly after 11:00 a.m. on the day of the accident, Swenson noticed a lull in the traffic at Gate 4 and decided to get a cup of soup from the Frontier Cafe. She placed a telephone order for the soup from Gate 4 and then drove her automobile to the cafe. She intended to pick up the soup and return to Gate 4 to eat at her post. She expected the round trip to take approximately ten to fifteen minutes, as permitted by Burns' unscheduled break policy. On her return trip, however, she collided with plaintiffs' motorcycle at a public intersection just outside Geneva's

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    Page 127

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            Christensen and Fausett filed a negligence action against Swenson and Burns. After answering the complaint, Burns moved for summary judgment, claiming that it was not liable under the doctrine of respondeat superior because Swenson was not acting within the scope of her employment at the time of the accident. The trial court granted Burns' motion, and Christensen and Fausett appealed. The court of appeals affirmed the trial court's decision, concluding that reasonable minds could not disagree that Swenson was acting outside the scope of her employment at the time of the accident. Christensen, 844 P.2d at 995. We granted plaintiffs' petition for certiorari.

    41

            Summary judgment is appropriate when the record indicates that there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law. Utah R.Civ.P. 56(c); Clover v. Snowbird Ski Resort, 808 P.2d 1037, 1039 (Utah 1991). We review a trial court's order granting summary judgment for correctness, according no deference to the trial court's legal conclusions. Clover, 808 P.2d at 1039-40; Blue Cross & Blue Shield v. State, 779 P.2d 634, 636 (Utah 1989). In addition, we view all relevant facts and all inferences arising from those facts in the light most favorable to the party opposing the motion. Clover, 808 P.2d at 1039. Should we conclude that a genuine issue of material fact exists, we must reverse the grant of summary judgment and remand for trial on that issue. Atlas Corp. v. Clovis Nat'l Bank, 737 P.2d 225, 229 (Utah 1989).

    43

            Under the doctrine of respondeat superior, employers are vicariously liable for torts committed by employees while acting within the scope of their employment. Clover, 808 P.2d at 1040. Whether an employee is acting within the scope of her employment is ordinarily a question of fact. Id. The question must be submitted to the jury " 'whenever reasonable minds may differ as to whether the [employee] was at a certain time involved wholly or partly in the performance of [the employer's] business or within the scope of employment.' " Id. (quoting Carter v. Bessey, 97 Utah 427, 432, 93 P.2d 490, 493 (1939)). However, when the employee's activity is so clearly within or outside the scope of employment that reasonable minds cannot differ, the court may decide the issue as a matter of law. Id.; Birkner v. Salt Lake County, 771 P.2d 1053, 1057 (Utah 1989).

    45

            In Birkner, we stated that acts falling within the scope of employment are " 'those acts which are so closely connected with what the servant is employed to do, and so fairly and reasonably incidental to it, that they may be regarded as methods, even though quite improper ones, of carrying out the objectives of employment.' " 771 P.2d at 1056 (quoting W. Page Keeton et al., Prosser and Keeton on the Law of Torts § 70, at 502 (5th ed. 1984)). We articulated three criteria helpful in determining whether an employee is acting within or outside the scope of her employment. First, the employee's conduct must be of the general kind the employee is hired to perform, that is, "the employee must be about the employer's business and the duties assigned by the employer, as opposed to being wholly involved in a personal endeavor." Id. at 1056-57. Second, the employee's conduct must occur substantially within the hours and ordinary spatial boundaries of the employment. Id. at 1057. Finally, "the employee's conduct must be motivated, at least in part, by the purpose of serving the employer's interest." Id.

    47

            The court of appeals held that Swenson was not substantially within the ordinary spatial boundaries of her employment because the accident did not occur on Geneva property. 1 Christensen, 844 P.2d at 995.

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    Page 128

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            Because the court of appeals concluded that Swenson failed to satisfy the second Birkner criterion, it did not address the first and third criteria. See Christensen, 844 P.2d at 995. However, our review of the record indicates that reasonable minds could differ on all three criteria. Thus, to avoid a second summary judgment on remand, we address all three of the Birkner criteria.

    53

            The first Birkner criterion requires that the employee's conduct be of the general kind the employee is hired to perform, that is, "the employee must be about the employer's business and the duties assigned by the employer, as opposed to being wholly involved in a personal endeavor." Birkner, 771 P.2d at 1056-57. Reasonable minds could differ as to whether Swenson was about Burns' business when she was involved in the traffic accident between Gate 4 and the Frontier Cafe.

    55

            We base this conclusion on two disputed issues of material fact. First, Swenson claims that Burns employed her as a security guard to "see and be seen" on and around the Geneva plant. Thus, traveling the short distance to the Frontier Cafe in uniform arguably heightened the secure atmosphere that Burns sought to project. Burns, on the other hand, claims that Swenson was not hired to perform that function. Burns' position is supported by the deposition of another security guard who stated that he considered lunch trips to the Frontier Cafe to be entirely personal in nature.

    57

            A second material issue of fact remains as to whether Burns tacitly sanctioned Gate 4 guards' practice of obtaining lunch from the Frontier Cafe. Burns expected its Gate 4 guards to work eight-hour continuous shifts and to remain at their posts as much as possible. However, because Burns also recognized that the guards must at times eat meals and use the restroom, the company permitted them to take ten- to fifteen-minute paid breaks. The record indicates that Burns was aware that its employees occasionally traveled to the Frontier Cafe during these unscheduled breaks but had never disciplined them for doing so. Indeed, Swenson asserts that a menu from the Frontier Cafe was posted in plain view at Gate 4. Thus, reasonable minds could differ as to whether Burns tacitly sanctioned, or at least contemplated, that its guards would satisfy their need for nourishment by obtaining meals from the Frontier Cafe.

    59

            The second Birkner criterion states that the employee's conduct must occur substantially within the hours and ordinary spatial boundaries of the employment. Birkner, 771 P.2d at 1057. It is undisputed that Swenson's action occurred within the hours of her employment. She was at her post and in uniform when she decided to take advantage of a lull in plant traffic to eat lunch.

    61

            With respect to spatial boundaries, we find that reasonable minds might differ as to whether Swenson was substantially within the ordinary spatial boundaries of her employment when traveling to and from the Frontier Cafe. Again, the court of appeals concluded that Swenson did not pass this criterion because the accident did not occur on Geneva property. Christensen, 844 P.2d at 995. While it is true that Swenson was not on Geneva property when the accident occurred, she was attempting to obtain lunch from a restaurant within the geographic area accessible during her ten- to fifteen-minute break. Given the other facts of this case, reasonable minds could differ as to whether Swenson's trip to the Frontier Cafe fell substantially

    63

    Page 129

    65267

            Furthermore, Burns could not point to specific orders barring guards from leaving the facility in their own vehicles to go to the Frontier Cafe on break, although two managers opined that such behavior was prohibited. This dispute alone presents a genuine issue of material fact. If guards were expressly forbidden to drive to the Frontier Cafe to pick up lunch during their break, a jury could find that Swenson was substantially outside the ordinary spatial boundaries of her employment; if they were not so forbidden, a jury might find her to have been acting substantially within the ordinary spatial boundaries of her employment. 3

    69

            Under the third criterion of the Birkner test, "the employee's conduct must be motivated, at least in part, by the purpose of serving the employer's interest." Birkner, 771 P.2d at 1057. Applying this criterion to the instant case poses the question of whether Swenson's trip to the Frontier Cafe was motivated, at least in part, by the purpose of serving Burns' interest. Reasonable minds might also differ on this question.

    71

            First, two Burns managers admitted in their depositions that employee breaks benefit both the employee and the employer. Employees must occasionally eat meals and use the restroom, and employers receive the corresponding benefit of productive, satisfied employees. Reasonable minds could differ as to whether Swenson's particular break fell into this mutual-benefit category.

    73

            Second, given the continuous-shift nature of the job and the comparatively brief breaks permitted, Burns' break policy obviously placed a premium on speed and efficiency. Swenson claimed that traveling to the Frontier Cafe enabled her to obtain lunch within the allotted period and thus maximize the time spent at her post. In this respect, reasonable minds might conclude that Swenson's conduct was motivated, at least in part, by the purpose of serving Burns' interest. Evidence indicating that Swenson tried to save time on her lunch break by phoning her order ahead, driving instead of walking, and attempting to return immediately to her post is also relevant in this regard.

    75

            In sum, we hold that reasonable minds could differ as to whether Swenson was acting within or outside the scope of her employment when she collided with plaintiffs' motorcycle. Thus, summary judgment is inappropriate. We reverse and remand for further proceedings.

    77

            ZIMMERMAN, C.J., STEWART, Associate C.J., and GREENWOOD, Court of Appeals Judge, concur.

    79

            HOWE, Justice, concurring:

    81

            I concur. I write to address the concerns of the court of appeals when, in affirming the summary judgment in favor of Burns, it wrote:

    83

    Holding otherwise would unduly expand the scope of employment. Every off-site location regularly patronized by an employee for personal purposes could potentially be considered within the ordinary spatial boundaries of the employment. Such a holding would also blur the rule that conduct occurring during an employee's off-premises lunch hour is outside the scope of employment. See, e.g., 1 Arthur Larson, The Law of Workmen's Compensation § 15.51 (1992).

    85

    Page 130

    87

            Christensen v. Burns Int'l Sec. Servs., 844 P.2d 992, 995 (Utah Ct.App.1992).

    89

            Larson in his treatise recognizes exceptions to the general rule relied on by the court of appeals. One such exception is where the employee is paid during the time taken out for lunch or coffee and to suit the employer's convenience, the employee rushes out to "get a quick bite to eat, and [hurries] back because of the pressure of work.... Here the very making of a lightning excursion for lunch is an effort expended in the employer's interest to conserve his time." 1 Arthur Larson, The Law of Workmen's Compensation, § 15.52 (1993). Larson cites many cases where the exception was relied on. Only one need be mentioned. In Shoemaker v. Snow Crop Marketers Division of Clinton Foods, Inc., 74 Idaho 151, 258 P.2d 760 (1953), an employee was awarded compensation when he was injured while retrieving his packed lunch from a building adjoining his employer's premises. He was on paid time and under orders of his employer to hurry back.

    91

            Although the case presently before the court is not a workers' compensation case, I believe that this well-recognized exception may be applicable here, as the majority opinion correctly opines.

    93

            GREENWOOD, Court of Appeals Judge, sat to fill the vacancy on the court.

    95

    ---------------

    97 98

    1 We note that in reaching its decision, the court of appeals construed Clover v. Snowbird Ski Resort, 808 P.2d 1037 (Utah 1991), as establishing a literal approach to the second Birkner criterion. The court of appeals interpreted Clover's application of the second Birkner criterion as turning on the fact that the employee's conduct took place " 'on his employer's premises.' " Christensen v. Burns Int'l Sec. Servs., 844 P.2d 992, 995 (Utah Ct.App.1992) (quoting Clover, 808 P.2d at 1041). Relying on that language, the court of appeals concluded that because Swenson's accident did not occur on "the premises of the Geneva Steel Plant[,]" the accident necessarily did not occur substantially within the ordinary spatial boundaries of her employment. Id.

    100

    We did not intend to establish such a bright-line rule in Clover. The Birkner criteria cannot be rigidly applied to every fact pattern. Some flexibility is required to address situations, like the instant case, where the employee's conduct is technically outside the physical boundaries of her employer's premises but arguably substantially within the ordinary spatial boundaries of the employment.

    102

    2 Moreover, as we have already noted, the record indicates that Burns was aware that Gate 4 guards occasionally traveled to the Frontier Cafe for lunch and that the company may have tacitly sanctioned the practice. Reasonable minds could differ as to whether such a tacit sanction brought the Frontier Cafe substantially within the ordinary spatial boundaries of Swenson's employment.

    104

    3 We acknowledge the court of appeals' concern that ruling in favor of Swenson could result in "[e]very off-site location regularly patronized by an employee for personal purposes [to] potentially be considered within the ordinary spatial boundaries of the employment." Christensen, 844 P.2d at 995. However, we note that this case is before us on a petition to review the court of appeals' affirmance of summary judgment. Thus, our opinion establishes only that, under the facts of this case, reasonable minds may differ as to whether Swenson's accident occurred substantially within the ordinary spatial boundaries of her employment. We do not hold that all lunch breaks, no matter where or when taken, fall within the scope of employment. Furthermore, we think that lines can successfully be drawn to avoid the court of appeals' concerns.

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