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Ondrusek v. Murphy (09/23/2005) sp-5944
Ondrusek v. Murphy (09/23/2005) sp-5944
Notice: This opinion is subject to correction before
publication in the Pacific Reporter. Readers are
requested to bring errors to the attention of the Clerk
of the Appellate Courts, 303 K Street, Anchorage,
Alaska 99501, phone (907) 264-0608, fax (907) 264-0878,
e-mail corrections@appellate.courts.state.ak.us.
THE SUPREME COURT OF THE STATE OF ALASKA
| MARY ANNE ONDRUSEK and
| ) |
|
JOHN ONDRUSEK, | ) Supreme Court No. S-
11196 |
|
| ) |
|
Appellants, | ) |
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| ) Superior Court
No. |
|
v. | ) 1JU-01-01519
CI |
|
| ) |
|
ROBERT MURPHY d/b/a CHILKOOT | ) O P I N I O
N |
|
HORSEBACK ADVENTURES, | ) |
|
| ) |
|
Appellee. | ) [No. 5944 - September 23,
2005] |
|
| ) |
|
|
|
|
Appeal from the Superior Court of the State
of Alaska, First Judicial District, Juneau,
Patricia Collins, Judge.
Appearances: Mark Clayton Choate, Choate Law
Firm LCC, Juneau, for Appellants. Paul D.
Stockler, Anchorage, for Appellee.
Before: Bryner, Chief Justice, Matthews,
Eastaugh, Fabe, and Carpeneti, Justices.
MATTHEWS, Justice.
I. INTRODUCTION
This case arises from an injury that occurred at
Chilkoot Horseback Adventures on a day that it was closed for
business. Travis Locke, an employee of Chilkoot, took his mother
and stepfather, the Ondruseks, out for a horseback ride. Upon
return, Lockes mother got off her horse without assistance, but
she fell and suffered a broken leg. The Ondruseks sued Robert
Murphy d/b/a Chilkoot Horseback Adventures for negligence under a
theory of respondeat superior. The superior court denied the
Ondruseks motion for summary judgment on this issue and the case
went to trial. The jury returned a verdict in favor of Chilkoot.
The Ondruseks now appeal arguing that respondeat superior
liability is a question of law and not a question for the jury,
and that no questions of material fact existed regarding the
issue of respondeat superior liability.
Because genuine issues of material fact exist and
conflicting inferences could be drawn concerning whether Locke
was acting within the scope of his employment, we conclude that
the superior court properly denied the motion for summary
judgment.
II. FACTS AND PROCEEDINGS
A. Facts
Robert Murphy d/b/a Chilkoot Horseback Adventures
(Chilkoot) in Skagway provides horseback rides and tours.
Chilkoot operates mostly in the summer months, catering to out-of-
state tourists and Alaska residents.
In May 2000 Chilkoot was open for business only on days
that cruise ships were docked in Skagway. On days that business
was closed, Chilkoot sometimes permitted trail guides to ride
Chilkoot horses on their own time and occasionally allowed them
to take friends and family out for free rides. During some
business days, Chilkoot would offer free rides to cruise ship
employees or friends and family if there were openings in a
paying tour.
Chilkoot expected its guides to follow certain safety
procedures whenever a non-employee rode a Chilkoot horse, whether
business was open or closed. These procedures included a Horse
101 safety lecture, directions on the proper method for
dismounting a horse, instructions never to dismount without
assistance from a guide, and several checks to see that the
horses were properly saddled. When business was closed, Chilkoot
did not require non-employees to sign the standard waiver form
customers signed when business was open.
Chilkoot did not permit customers to drive their own
vehicles onto Chilkoot property on days that business was open,
whether they were paying or not. Instead, Chilkoot employees
would pick everyone up at the cruise ship dock in Chilkoot
vehicles and drive them to the property. When business was
closed, Chilkoot did not permit guides to use Chilkoot vehicles,
and thus non-paying customers would arrange their own
transportation to Chilkoot.
In 1998 Chilkoot hired Travis Locke to work as a trail
guide. Locke had been riding horses since he was a small child
and rode competitively throughout his childhood, in college, and
on the open circuit. In 2000 Locke considered himself the most
experienced, able guide at Chilkoot.
On May 27, 2000, Mary Anne and John Ondrusek, Lockes
mother and stepfather, were visiting Skagway on their way back to
Texas. Because Chilkoot was not open for business and it was a
nice day, Locke invited the Ondruseks on a free horseback ride.
The three of them drove to Chilkoot in Mary Annes vehicle.
Several other people joined the free ride, including two other
Chilkoot guides and two of Lockes friends who had never ridden
before. Locke did not take the group on the full route used for
paying tours that day, but turned back early because the
Ondruseks appeared to be getting sore. When the group returned
to Chilkoot, Mary Anne attempted to dismount her horse without
assistance. While dismounting, Mary Anne fell and broke her leg.
Whether Chilkoot authorized the ride that day is
disputed. Murphy testified that Locke did not ask permission for
this particular ride and that he never met the Ondruseks. Locke
testified that he told Murphy about the ride and that he did not
recall Murphy prohibiting Locke from riding in the past.
Additionally, Mary Anne testified that she met Murphy right
before the ride and that he said You all have a good time.
Additionally, the parties are in disagreement regarding whether
Locke gave a safety lecture before the ride, including
instructing the group not to dismount without assistance.
Finally, there is a dispute about whether the ride that day was
meant to benefit Chilkoots business. Murphy testified that
Chilkoot encouraged the guides to ride on days off because the
more time we . . . put on our guides back with the horses, the
better. Locke, on the other hand, testified that riding the
horses on days off did not benefit Chilkoot, but harmed the
business because the horses needed the rest to stay healthy.
B. Proceedings
The Ondruseks sued Chilkoot for negligence under a
theory of respondeat superior. Chilkoot filed an answer denying
that the free ride was business-related and denying that Locke
was acting within the scope of his employment. Chilkoot admitted
that Mary Anne fell when dismounting her horse and was injured,
but denied all other allegations related to the cause of the
injury.
The Ondruseks filed a motion for partial summary
judgment requesting the trial court to find, as a matter of law,
that Locke was acting within the scope of his employment at the
time of Mary Annes accident, and that Chilkoot was liable for
Mary Annes injuries under the doctrine of respondeat superior.
Chilkoot filed an opposition to the motion, arguing that material
issues of fact existed. The superior court denied the motion,
finding multiple issues of material fact relating to the doctrine
of respondeat superior.
The case was then tried before a jury. At the close of
trial, the court instructed the jury that if it determined that
it was more likely than not Lockes conduct occurred within the
scope of his employment, the jury could find Chilkoot liable.
The court further instructed the jury to consider the factors
stated in Restatement (Second) of Agency sections 228 and 229
when determining whether Locke was acting within the scope of his
employment. The special verdict form first asked the jury to
determine the scope of employment before addressing any other
issues. Because the jury found that Locke was not acting within
the scope of his employment, no other issues were reached.
III. DISCUSSION
A. Standard of Review
We review a superior court order denying summary
judgment de novo.1 We will affirm the superior courts denial of
summary judgment if a genuine issue of material fact exists or
the moving party was not entitled to judgment as a matter of law.2
A material issue of fact exists where reasonable jurors could
disagree on the resolution of a factual issue.3 Facts are to be
viewed in the light most favorable to the nonmoving party.4
B. The Superior Court Did Not Err in Denying the Motion
for Summary Judgment on the Issue of Respondeat
Superior Because Genuine Issues of Material Fact Exist.
The Ondruseks assert that this court analyzes
respondeat superior liability under the Restatement (Second) of
Agency section 228 (hereinafter Restatement). The Ondruseks
argue that the superior court should have granted summary
judgment on the question of respondeat superior liability because
no issues of material fact existed concerning whether Locke was
acting within the scope of his employment under the factors set
forth in section 228. Section 228 states in full:
(1) Conduct of a servant is within the
scope of employment if, but only if:
(a) it is of the kind he is employed to
perform; (b) it occurs substantially
within the authorized time and space
limits; (c) it is actuated, at least
in part, by a purpose to serve the
master, and (d) if force is
intentionally used by the servant
against another, the use of force is not
unexpectable by the master.
(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.
The Ondruseks argue that (1) the first factor is
satisfied because Chilkoot employed Locke to take people on trail
rides, and this case arose from such a ride; (2) the second
factor is met because Murphy authorized Locke to take his mother
on a trail ride and the ride occurred on Chilkoot riding trails;
and (3) the third factor is satisfied because the ride benefitted
Chilkoots business by providing the guides with experience. The
Ondruseks contend that the above facts are all undisputed and
thus Locke was acting within the scope of his employment as a
matter of law.
Chilkoot responds that this court does not strictly
adhere to the requirements in Restatement section 228, but also
considers whether the conduct is of the same general nature as
that authorized, or incidental to the conduct authorized
considering the factors set forth in section 229.5 Chilkoot
asserts that questions such as whether the conduct is too little
actuated by a purpose to serve the master6 are inherently fact
specific and should be left for the jury. Chilkoot argues that
even if the facts are undisputed, scope of employment is still a
question for the jury because reasonable jurors could draw
conflicting inferences.
Additionally, Chilkoot disagrees with the Ondruseks
assertion that the facts are undisputed. Chilkoot points to
Lockes testimony that the free rides did not benefit Chilkoot
because the horses needed rest on days when Chilkoot was closed
for business, and Lockes testimony that the Ondruseks were not
paying for the ride and the rides were not expected to bring in
future business. Chilkoot argues that under these facts a
reasonable jury could conclude that Lockes conduct was too little
actuated by a purpose to serve Chilkoot, and thus could find that
Locke was not acting within the scope of his employment.
Chilkoot asserts that Lockes conduct was not the type
Chilkoot employed him to perform because the ride was free, Locke
was not being paid, Chilkoot was closed, no waivers were signed,
and the route differed from the one used during actual tours.
Additionally, Chilkoot argues that a dispute exists regarding the
extent of departure from the normal method of accomplishing an
authorized result,7 pointing out that the parties disagree about
whether the employees followed standard Chilkoot procedures, such
as giving a safety lecture, giving the dismount warning, and
checking the saddles. Finally, Chilkoot asserts that the facts
are in dispute regarding whether Chilkoot guides commonly give
this type of ride8 because Locke testified it is pretty rare for
guides to take people on free rides on days that Chilkoot is
closed.
Under the doctrine of respondeat superior an employer
may be liable for the conduct of its employees if the conduct
occurred within the scope of their employment.9 We have adopted
a flexible analysis for the determination of scope of employment,
guided by the factors stated in the Restatement sections 228 and
229.10
We have held that the scope of employment is a fact
specific inquiry for the jury unless the facts are undisputed or
lend themselves to only one conclusion.11 In Luth v. Rogers &
Babler Construction Co., the tort at issue occurred during the
employees twenty-five-mile commute between his home and his
jobsite, where he worked as a construction flagman.12 We held
that, although the facts were undisputed, the jury could have
drawn conflicting inferences about whether this conduct was
within the scope of employment.13 In Fruit v. Schreiner, the
employee was involved in an accident during an annual convention
hosted by his employer at an out-of-town resort.14 The accident
occurred early in the morning when the employee was returning to
the resort after failing to find the rest of his group at a
restaurant and bar.15 We held that, because some evidence
supported a finding that the conduct arose out of the employees
motivation to serve the employer by socializing to learn from out-
of-state attendees work experiences, a reasonable jury could draw
conflicting conclusions about whether the accident took place
within the scope of employment.16
Here, material issues of fact exist regarding scope of
employment and thus denial of the summary judgment motion was
appropriate. Also, construing the facts in favor of Chilkoot, we
cannot conclude that Locke was acting within the scope of his
employment as a matter of law. The facts are disputed regarding
whether Chilkoot authorized the ride on May 27, 2000.17 Murphy
testified that Locke did not tell him about the ride and that he
never met the Ondruseks. Locke, however, testified that he might
have mentioned it to Murphy. And Mary Anne testified that she
met Murphy right before the horseback ride.
The facts are also disputed as to whether the ride
benefitted Chilkoots business.18 Murphy testified that the more
the guides rode the better it was for business because the guides
would gain experience. Murphy also testified, however, that his
biggest concern regarding the free rides was that the horses had
enough rest. And he also was concerned that the guides riding on
days off had adequate experience. He was less inclined to allow
inexperienced guides to ride when business was closed. This is
contrary to the idea that free rides for friends and family
always benefit Chilkoot by giving the guides more experience.
Additionally, Locke testified that he thought riding horses on
days off did not benefit Chilkoot, but harmed the business
because the horses did not get adequate rest.
The Ondruseks argue that the trial court should not
have considered Lockes opinion testimony in denying summary
judgment. Chilkoot responds that Lockes testimony contained
issues of material fact and that Lockes opinion testimony is
equal in weight to Murphys opinion testimony because on a motion
for summary judgment the court does not weigh testimony or make
credibility determinations. Additionally, Chilkoot argues that
lay opinion testimony is admissible if it is rationally based on
the perception of the witness and it aids in the determination of
a factual issue. The Ondruseks reply that Lockes opinion cannot
dispute Murphys opinion because Murphy, as the sole owner of
Chilkoot, is the only person who can make a factual statement
about whether the business is benefitted.
Evidence of an employees motivation to benefit the
business is a relevant consideration when determining the scope
of employment. Whether an employees conduct benefitted the
employer is determined from the perspective of the employee, not
the desire of the employer.19 In Fruit, for instance, we relied
on the existence of evidence that [the employee] was at least
motivated in part by his desire to . . . improve his abilities as
a salesman, in finding that material issues of fact existed
regarding whether he was acting within the scope of his
employment.20 In VECO, Inc. v. Rosebrock, we clarified the
motivation to serve test stating that imposing liability under a
scope of employment theory absent at least a partial purpose on
the part of the employee to serve the employer seems unjustified.21
Here, the trial court did not err in considering Lockes
testimony regarding the motivation for his actions. Locke
testified that he had no desire to benefit the business by taking
his mother out on a free ride. In fact, Locke thought that
riding the horses on days Chilkoot was closed was harmful to the
business. This testimony was relevant to the issue whether Locke
was acting within the scope of his employment.
IV. CONCLUSION
For the above reasons, we conclude that the Ondruseks
motion for summary judgment was properly denied. The final
judgment entered by the court based on the jury verdict is
therefore AFFIRMED.
_______________________________
1 City of Kodiak v. Samaniego, 83 P.3d 1077, 1082 (Alaska
2004).
2 Id. Chilkoot does not argue that the denial of the
motion for summary judgment may not be considered as a point on
appeal given that this case was subsequently resolved by a trial
on the merits. Such an argument would be favorably received in
the federal courts, and in many state jurisdictions. See Lama v.
Borras, 16 F.3d 473, 476 n.5 (1st Cir. 1994); Black v. J.I. Case
Co., 22 F.3d 568, 570-72 (5th Cir. 1994), cert. denied, 513 U.S.
1017 (1994); Watson v. Amedco Steel, Inc., 29 F.3d 274, 276-78
(7th Cir. 1994); Johnson Intl Co. v. Jackson Natl Life Ins. Co.,
19 F.3d 431, 434 (8th Cir. 1994); Whalen v. Unit Rig, Inc., 974
F.2d 1248, 1250-51 (10th Cir. 1992), cert. denied, 507 U.S. 973
(1993); Jarrett v. Epperly, 896 F.2d 1013, 1016 (6th Cir. 1990);
Holley v. Northrop, 835 F.2d 1375, 1377-78 (11th Cir. 1988);
Locricchio v. Legal Serv. Corp., 833 F.2d 1352, 1358-59 (9th Cir.
1987); Glaros v. H.H. Robertson Co., 797 F.2d 1564, 1573-74 (Fed.
Cir. 1986), cert. dismissed, 479 U.S. 1072; Fleitz v. Van
Westrienen, 560 P.2d 430, 432-33 (Ariz. App. 1977) (finding that
a denial of summary judgment is not appealable, but recognizing a
narrow exception if the denial was made on a point of law and
prevented the losing party from offering evidence or urging the
point at the time of trial); Manuel v. Fort Collins Newspapers,
Inc., 631 P.2d 1114, 1117 (Colo. 1981) (To hold otherwise could
lead to the absurd result that one who has sustained his position
after a full trial and a more complete presentation of the
evidence might nevertheless be reversed on appeal because he had
failed to prove his case fully at the time of the hearing on the
motion for summary judgment.); Phillips v. Abel, 233 S.E.2d 384
(Ga. App. 1977) (finding the issue is moot after the evidence has
been reviewed in a trial on the merits); Evans v. Jensen, 655
P.2d 454, 459 (Idaho App. 1982) (explaining that a final judgment
after trial should be tested upon the record made at trial not at
the time summary judgment was denied); Kiesau v. Bantz, 686
N.W.2d 164, 174 (Iowa 2004) (explaining that after a full trial
on the merits the denial of summary judgment merges with the
trial); Skowronski v. Sachs, 818 N.E.2d 635, 638 n.5 (Mass. App.
2004) (explaining that no right to review exists when case has
proceeded to trial on the merits, unless summary judgment issue
was on a different claim than was tried); Cannon v. Day, 598
S.E.2d 207, 210 (N.C. App. 2004) (Improper denial of a motion for
summary judgment is not reversible error when the case has
proceeded to trial and has been determined on the merits by the
trier of the facts . . . .); All-States Leasing Co. v. Pacific
Empire Land Corp., 571 P.2d 192 (Or. App. 1977). But cf. Lackner
v. LaCroix, 602 P.2d 393, 396 (Cal. 1979); Wynn v. Winsen Ltd.,
246 So. 2d 639, 640 (Fla. Dist. App.1971); Metro Mach. Corp. v.
Mizenko, 419 S.E.2d 632, 634 (Va. 1992); Lane v. Schacht, 393
A.2d 1015, 1018 (Pa. Super. 1978).
This court, however, has reviewed summary judgment
denials. Diamond v. Wagstaff, 873 P.2d 1286, 1289-90 (Alaska
1994); Cameron v. Beard, 864 P.2d 538, 545-46 (Alaska 1993);
Western Pioneer, Inc. v. Harbor Enters., 818 P.2d 654 (Alaska
1991). In one case, Western Pioneer, we reversed a judgment
entered on a jury verdict on the basis that summary judgment
should have been entered in favor of the party that lost at
trial. But the issue involved was a question of law that had
been improperly resolved at summary judgment and the resolution
affected the trial. Often summary judgment motions are denied on
the basis that there are genuine issues of material fact. At
least as to motions denied on that basis, this court will give
serious consideration in the future to adoption of what seems to
be the majority view concerning reviewability of summary judgment
denials, when the point is properly raised.
3 McGee Steel Co. v. State ex rel. McDonald Indus.
Alaska, Inc., 723 P.2d 611, 614 (Alaska 1986).
4 Samaniego, 83 P.3d at 1082.
5 Restatement (Second) of Agency 229 (1958). This
section states in pertinent part:
(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: (a) whether or not
the act is one commonly done by such
servants; (b) the time, place and
purpose of the act; (c) the previous
relations between the master and the
servant; (d) the extent to which the
business of the master is apportioned
between different servants; (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; (f) whether or not
the master has reason to expect that
such an act will be done; (g) the
similarity in quality of the act done to
the act authorized; (h) whether or not
the instrumentality by which the harm is
done has been furnished by the master to
the servant; (i) the extent of
departure from the normal method of
accomplishing an authorized result; and
(j) whether or not the act is seriously
criminal.
6 Restatement 228(2).
7 Restatement 229(2)(i).
8 See id. 229(2)(a).
9 Doe v. Samaritan Counseling Ctr., 791 P.2d 344, 346
(Alaska 1990).
10 Taranto v. North Slope Borough, 909 P.2d 354, 358
(Alaska 1996) (citing Luth v. Rogers & Babler Constr. Co., 507
P.2d 761, 764-65 n.14 (Alaska 1973)).
11 Taranto, 909 P.2d at 359 ([S]cope of employment is a
fact-specific issue requiring case-by-case determination.); Luth,
507 P.2d at 764 ([S]cope of employment questions are jury issues
where conflicting inferences can be drawn from undisputed
facts.); Fruit v. Schreiner, 502 P.2d 133, 140-41 (Alaska 1972)
(noting [a]pplicability of respondeat superior will depend
primarily on the findings of fact in each case and that the
factual determination generally is left to the jury).
12 507 P.2d at 762.
13 Id. at 765.
14 502 P.2d at 135.
15 Id.
16 Id. at 142.
17 Whether or not Chilkoot authorized the conduct is a
factor to be considered under Restatement 228(1)(b).
18 See Restatement 228(1)(c).
19 See VECO, Inc. v. Rosebrock, 970 P.2d 906, 924 n.36
(Alaska 1999); Doe, 791 P.2d at 346; Fruit, 502 P.2d at 142.
20 502 P.2d at 142 (emphasis added).
21 970 P.2d at 924 n.36.
