Christensen v. Swenson

874 P.2d 125, 238 Utah Adv. Rep. 8, 1994 Utah LEXIS 35, 1994 WL 174802
CourtUtah Supreme Court
DecidedMay 9, 1994
Docket930048
StatusPublished
Cited by26 cases

This text of 874 P.2d 125 (Christensen v. Swenson) is published on Counsel Stack Legal Research, covering Utah Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Christensen v. Swenson, 874 P.2d 125, 238 Utah Adv. Rep. 8, 1994 Utah LEXIS 35, 1994 WL 174802 (Utah 1994).

Opinions

ON CERTIORARI TO THE UTAH COURT OF APPEALS

DURHAM, Justice:

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 hable 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.

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-tó fifteen-minute unscheduled lunch and restroom breaks.

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 budding, 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.

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 [127]*127property. Both Christensen and Fausett were injured.

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 hable 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 Bums’ 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.

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 ah 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).

Under the doctrine of respondeat superior, employers are vicariously Hable 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).

In Birkner, we stated that acts faUing 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 ah, 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 whoHy 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.

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. [128]*128Christensen and Fausett argue that the court of appeals erred in its application of the second criterion identified in Birkner. Burns responds that the court of appeals properly construed the second Birkner criterion in holding that Swenson was acting outside the scope of her employment at the time of the accident.

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.

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Bluebook (online)
874 P.2d 125, 238 Utah Adv. Rep. 8, 1994 Utah LEXIS 35, 1994 WL 174802, Counsel Stack Legal Research, https://law.counselstack.com/opinion/christensen-v-swenson-utah-1994.