## Facts

- John O’Shea was injured in an automobile collision with Anthony Welch, an Osco Drug store manager.
- O’Shea alleged Welch was driving from his Osco store to the Osco District Office to deliver football tickets obtained from a vendor for distribution among Osco managers.
- Welch allegedly used his personal vehicle frequently for Osco-related trips.
- En route, Welch decided spontaneously to pull into a service station to obtain an estimate for non-emergency routine maintenance on his car.
- While turning left into the service station, Welch allegedly failed to yield and struck O’Shea’s car.
- O’Shea sued Welch for negligence and sought to hold Osco vicariously liable under respondeat superior, asserting Welch acted within the scope of employment.
- The district court granted summary judgment to Osco, concluding no reasonable jury could find Welch acted within the scope of employment at the time of the attempted service-station stop.

## Issues

1. Whether, under Kansas law and viewing the record favorably to O’Shea, a reasonable jury could find Welch acted within the scope of his employment when he attempted to turn into a service station for routine car maintenance while traveling to complete a work errand.

## Decision

- The Tenth Circuit reversed the grant of summary judgment to Osco and remanded.
- Assuming the underlying trip to the District Office could be within the scope of employment, the court held a reasonable jury could find the maintenance stop was at most a slight deviation, not a complete abandonment of Osco’s business.
- The court concluded Kansas law should apply a “slight deviation” analysis to scope-of-employment disputes in respondeat superior cases, using a multi-factor approach.
- Because reasonable jurors could weigh the factors differently on these facts, summary judgment was improper.

## Legal Principles

- Under Kansas scope-of-employment doctrine, an employee acts within the scope when performing services hired to perform or acts reasonably incidental to the employment; foreseeability from the nature of the job is relevant even if the conduct was not expressly authorized.
- A detour (slight deviation) for personal comfort or convenience may remain within the scope; a frolic occurs when the employee wholly abandons the employer’s business for personal reasons and falls outside the scope.
- Factors useful in distinguishing detour from frolic include: (1) employee intent; (2) nature, time, and place of the deviation; (3) time consumed; (4) work hired to perform; (5) incidental acts reasonably expected by the employer; and (6) employee freedom in performing job responsibilities.
- Routine maintenance of a vehicle regularly used for work can present a mixed business/personal purpose that may support a finding of scope of employment, particularly when the stop is close to the work route and the employee has managerial discretion.
- When material facts permit competing inferences on scope of employment under the slight-deviation framework, the issue is for the factfinder rather than resolution on summary judgment.

## Conclusion

The court held that, applying Kansas respondeat superior principles and a slight-deviation framework, a jury could reasonably find a manager remained within the scope of employment while briefly attempting to stop for routine maintenance during a work-related drive; therefore, Osco was not entitled to summary judgment on vicarious liability.


O'Shea v. Welch, 350 F.3d 1101 (10th Cir. 2003)