Sutton v. Byer Excavating, Inc., 271 P.3d 169

Two houses built on adjacent Park City lots; Byer Excavating and R.W. Construction subcontracted on Lot 174 and Sutton worked for R.W. on Lot 174; Miles (Byer) operated a trackhoe; Sutton (R.W.) supervised framing on Lot 174; Lowell Construction delivered rebar to Lot 173 and asked Miles to help unload using Byer’s trackhoe; Miles complied, leaving his assigned job to assist on Lot 173; Sutton allegedly acted as spotter during unloading; Miles’ unloading of rebar occurred without Byer’s knowledge of involvement; Sutton was injured when the unstable rebar load struck him; Byer was not hired for Lot 173 and did not arrange or supervise the unloading at that site; district court granted summary judgment finding Miles acted outside the course and scope of employment at the time of the accident; Sutton appeals.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether Miles was acting within the course and scope of employment at the time of the accident	Miles was acting to unload rebar for another project benefiting the employer	Miles’ unloading was outside Byer’s duties and not in the employer’s interests	No; Miles was not within the course and scope as a matter of law
Whether Sutton can establish vicarious liability via apparent authority	Byer’s conduct created apparent authority for Miles to leave his job	No actual or apparent authority; Byer never authorized Miles to unload for another site	District court correctly granted summary judgment on apparent authority
Whether genuine issues of material fact preclude summary judgment on course and scope	Disputed facts show Miles’ conduct could be within scope	Undisputed facts show Miles’ conduct was not within scope	Reasonable minds could not differ; no material fact disputing outside scope; summary judgment proper
Whether Sutton disputed facts negate Birkner three-part test application	Miles’ conduct was within general kind of work; other disputed facts exist	Miles’ tasks not within general scope of employment; lack of authority	Birkner test not met; Miles outside scope as a matter of law
Whether the evidence supports a jury trial on the scope issue	Scope questions are for jury	Questions are resolved as a matter of law based on undisputed facts	No reasonable juror could find Miles within scope; proper for jury trial not needed

Orvis v. Johnson, 2008 UT 2 (Utah 2008) (standard for reviewing summary judgment and favorable view of facts)
Birkner v. Salt Lake Cnty., 771 P.2d 1053 (Utah 1989) (three-factor test for course-and-scope; scope is fact-bound but may be decided on summary judgment if no reasonable jurors could differ)
Jackson v. Righter, 891 P.2d 1387 (Utah 1995) (apparent authority requires principal’s conduct; mere supervision not enough)
Zions First Nat’l Bank v. Clark Clinic Corp., 762 P.2d 1090 (Utah 1988) (apparent authority requires principal’s conduct creating reliance by third parties)
Bodell Constr. Co. v. Stewart Title Guar. Co., 945 P.2d 119 (Utah Ct. App. 1997) (authority issues related to apparent agency terms)
City Elec. v. Dean Evans Chrysler‑Plymouth, 672 P.2d 89 (Utah 1983) (illustrative authority principles for apparent agency)
Newman v. White Water Whirlpool, 2008 UT 79 (Utah 2008) (recitation of Birkner scope framework)