Lead Opinion
delivered the opinion of the court:
In this аutomobile accident case based on a theory of respondeat superior, we are asked to examine the entry of summary judgment in favor of the defendant employer. The central issue is whether a triable question of fact existed as to whether, at the time of the accident, the defendant’s employee was within the scope of his employment. We conclude that a factual question sufficient to preclude summary judgment did exist. We therefore affirm the appellate court’s reversal of summary judgment and its remand of the cause to the circuit court of McHenry County.
The circumstances of the accident were set forth in detail in the appellate court’s opinion. (
Briefly, this case involves an employee, defendant William E. Witmer, who, at or near the end of his scheduled work day, drove in his own vehicle from his workplace in Streamwood to Rockford in order to take an evening test that could secure his certification as an automobile mechanic. Witmer’s employer, appellant D.R.W. Enterprises, Inc. (D.R.W.), which operated the gasoline station at which Witmer worked, did not pay him wages, mileage, or expenses for the trip, but D.R.W. did issue a check for the test fee. There is some question whether D.R.W. expected to be repaid by Witmer for the check amount and whether certification would have benefited D.R.W., but for purposes of this appeal the parties are in agreement that, while taking the test, Witmer was within the scope of his employment.
There is some evidence that, before Witmer’s journey to Rockford, D.R.W. was aware that he was prone to exсessive alcohol consumption, but this appeal does not involve a claim of negligent hiring. See generally Easley v. Apollo Detective Agency, Inc. (1979),
For appeal purposes, the parties agree that Witmer would have been in the scope of his employment with regard to the test during “travel incident thereto” and that Witmer was not required to report to work in Streamwood again until the next morning. Generally, an employee traveling to or from work outside actual working hours is not in the scope of employment, but an exception exists for employees whо are caused by their employers to travel away from a regular workplace or whose travel is at least partly for their employers' purposes rather than simply serving to convey the employees to or from a regular jobsite. See International Art Studios v. Industrial Comm’n (1980),
Some 2V2 hours after he completed his test, Witmer was killed in a 10:30 p.m. automobile collision involving his vehicle and one driven by the appellee, Keith L. Pyne. According to blood-alcohol evidence, Witmer was intoxicаted at the time of collision, and the appellee does not dispute this. The collision site was near Marengo, which lies between Rockford, on the one hand, and, on the other, Witmer’s home in Elgin and workplace in Streamwood.
No eyewitness or physical evidence was presented as to Witmer’s actual whereabouts or activities from the time he left his test location until the time of the accident. However, his widow testified in a deposition that before leaving for Rockford he had told her he would stay a little late in order to study for a second test session to be hеld the next evening. Witmer’s former mother-in-law also swore in an affidavit that, some 10 years earlier, he had regularly commuted between Ca-pron and Schaumburg for a two-year period and that at that time he had often professed to know all the back roads well.
At the time of the accident, Witmer’s southbound route of travel would within two miles have led him to a T intersection with a highway, U.S. 20, that, in turn, could have led him directly east eight miles to Marengo and directly beyond to Elgin, his hometown. About 10 miles north of the accident site is Capron, where he had formerly lived. Thus, both Capron and Marengo are in the same general area of northern Illinois, and Elgin, Schaumburg, and Streamwood are in the same general Chicago northwestern suburban area. The appellee argues that these facts tend to refute the contention that, at the time of accident, Witmer was so intoxicated as not to know where he was and thus was incapable of taking any steps or forming any intention to return to the scope of his employment if he had in fact left it.
Summary-judgment procedure permits a trial court to determine whether any genuine issue of material fact exists (Purtill v. Hess (1986),
If, from the papers on file, a plaintiff fails to establish an element of the cause of action, summary judgment for the defendant is proper. (Brunsfeld v. Mineola Hotel & Restaurant, Inc. (1983),
Inferences may be drawn from undisputed facts (Century Display Manufacturing Corp. v. D.R. Wager Construction Co. (1977),
Summary judgment is generally inappropriate when scope of employment is at issue. (Dragovan v. City of Crest Hill (1983),
For an employer to be vicariously liable for an employee’s torts under the doctrine of respondeat superior, the torts must have been committed within the scope of the employment. Darner v. Colby (1941),
“No precise definition has been accorded the term ‘scope of employment’ ” (Sunseri v. Puccia (1981),
“(1) Conduct of a servant is within the sсope 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, *** * * *
(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.” (Restatement (Second) of Agency §228 (1958).)
These criteria have been elaborated. (See, e.g., Restatement (Second) of Agency §229 (kind of conduct), §230 (forbidden acts), §233 (time), §234 (space), §235 (purpose not master’s), §236 (dual purpose), §237 (reentry to scope) (1958).) For guidance, Illinois courts have looked to formulations similar to those just cited. See, e.g., Wilson v. Clark Oil & Refining Corp. (1985),
The burden is on the plaintiff to show the contemporaneous relationship between tortious act and scope of employment. (Darner v. Colby (1941),
A distinction between “frolic” (pursuit of an employee’s personal business seen as unrelated to employment) and “detour” (an employee’s deviation for personаl reasons that is nonetheless seen as sufficiently related to employment) was long ago noted. (Joel v. Morison (Ex. 1834), 6 C. & P. 501, 503, 172 Eng. Rep. 1338, 1338-39; see generally Prosser & Keeton §70, at 503-05; Smith, Frolic and Detour (pts. 1 & 2), 23 Colum. L. Rev. 444, 716 (1923); Epstein, The Temporal Dimension in Tort Law, 53 U. Chi. L. Rev. 1175, 1193-97 (1986).) Once an employee abandons a frolic and reenters the scope of employment, the employer will be vicariously liable for injuries caused by the employee’s negligence after reentry. (Prince v. Atchison, Topeka & Santa Fe Ry. Co. (1979),
Where an employee’s deviation from the course of employment is slight and not unusual, a court may find as a matter of law that the employee wаs still executing the employer’s business. (Boehmer v. Norton (1946),
Though D.R.W. insists that the appellee offered no evidence on what Witmer was doing in the time between his test and his accident, and hence no evidence on whether he was within the scope of his employment, the fact is that evidence was offered. The evidence was not direct, but it was circumstantial; its strength would be a matter for the trier of fact. (See, e.g., Dovin v. Winfield Township (1987),
If indeed we were to consider circumstantial evidence as nonevidence, we might as well consider D.R.W.’s evidence of Witmer’s intoxication as constituting “no” evidence of post-test departure from the scope of employment within which he concededly operated while taking the test: there was no direct evidence on whether his drinking occurred before, during, or after the test, and the toxicological evidence was therefore merely сircumstantial with regard to his post-test conduct. Meanwhile, it is as true of D.R.W.’s as of the appellee’s evidence that its limitations are “to be expected in this type of case — where death has sealed the lips of the one who might otherwise have shed the most light on the question. The plaintiff was compelled to tell his story with the best evidence available to him.” Sloma v. Pfluger (1970),
D.R.W.’s perception that evidence was lacking of Witmer’s post-test adherence to the scope of employment underlies D.R.W.’s argument that, because a jury should not be allowed to speculаte in the absence of such evidence, summary judgment in D.R.W.’s favor was proper. (See, e.g., Kramer v. Weedhopper of Utah, Inc. (1986),
The appellee cites evidence of Witmer’s familiarity with Marengo-area roads, his position on a road that within two miles would meet a highway leading homeward, his intention to study after the test, his freedom to return at his own pace, and his reporting time for work thе next day, all in an effort to show that, before the accident, Witmer arguably remained within or returned to the scope of employment. Because this evidence pertained precisely to Witmer’s own background and circumstances rather than simply to a class of persons that happens to include him, this evidence was more than merely statistical, regardless of whether merely statistical evidence might be held insufficient. Moreover, particularly when viewed in the light most favorable to the appellee, the evidence tended to prove that Witmer was within rather than outside the scope of employment.
Furthermore, a jury might be entitled, in view of the timing of events and the jury’s experience with the affairs of life (see Dovin v. Winfield Township (1987),
In short, this is not a case in which a jury would be confined to sheer speculation. Rather than signifying a case ripe for summary judgment, this evidence raises an issue ripe for the fact finder.
D.R.W. objects to the evidence contained in the former mother-in-law’s affidavit, on the ground that she could not testify of her own knowledge that, as she swore, Witmer “became knowledgeable” of the routes between Capron and Schaumburg, and on the further ground that it was hearsay for her to swear that Witmer had often stated that he knew all the back roads from Capron to Schaumburg. (D.R.W., also objects that the affiant’s identity was not disclosed in timely fаshion during discovery, but we can pass over this objection because, when it was raised in the trial court, D.R.W. immediately followed it with the acknowledgment that counsel’s illness and the appellee’s residence outside Illinois might explain the previous absence of disclosure. Too, D.R.W. did no more in the trial court than raise the point in its reply supporting its motion for summary judgment; it made no motion to strike the affidavit. See Kearns v. Board of Education of North Palos Elementary School District No. 117 (1979),
Whether or not the affiant could properly testify that Witmer “became knowledgeable,” she сould testify as to other matters contained in her affidavit, including Witmer’s regular commuting between Capron and Schaumburg. In addition, her testimony regarding Witmer’s claim to know the back roads need not be considered hearsay if offered not to prove Witmer’s actual knowledge but to prove that Witmer felt he knew the roads and hence that he could have been intending to pursue a chosen route at the time of the accident rather than wandering aimlessly or in confusion. In any event, an intention to return from any frolic could have existed even if Witmer was lost or confused about direction at the time of the accident, as long as it was his desire and endeavor to proceed homeward. Therefore, with the possible exception of the affiant’s statement that Witmer “became knowledgeable,” we see no reason that her affidavit would not be available to resist summary judgment. See LaMonte v. City of Belleville (1976),
Because pertinent evidence was presented on both sides of the scope-of-employment issue, this case differs from Murphy v. Urso (1981),
D.R.W. contends that, on the “real issue in this case” in regard to its liability, it proved the “irrefutable fact” of Witmer’s frolic; that it then became the appellee’s burden to prove Witmer’s reentry to the scope of employment; and that the appellee offered no evidence of reentry. To the contrary, as noted by the appellate court majority, “it is not clear that Witmer was ever on a frolic.” (
As D.R.W. acknowledges, it was D.R.W.’s burden to go forward with evidence tending to show frolic. (See Fuery v. Rego Co. (1979),
A jury would not be required to accept D.R.W.’s frolic evidence, rather than the appellee’s contrary evidence. If no frolic were found, then at trial the appellee would not need to have shown reentry to a sсope that Witmer would be found never to have left. In other words, D.R.W.’s concern with whether at the summary-judgment stage the appellee “proffered any evidence that [Witmer] had reentered the scope of his employment” would then prove moot. D.R.W. asserts at one point that the question of proffering reentry evidence was “the only issue before the appellate court.” If so, D.R.W. deservedly failed in that court to avoid reversal of summary judgment; the question was immaterial, because a jury might find no frolic in the first place. Rather, to avoid summary judgment, all that the appellee had to do was to show a genuine question of material fact as to frolic, not reentry. This the appellee did.
D.R.W. inadvisably relies on Prince v. Atchison, Topeka & Santa Fe Ry. Co. (1979),
The Prince court held as a matter of law that, by the time they reached the tavern, the employees were on a frolic and that, on the facts of that case, their subsequent direction of travel toward their workplace near day’s end was insufficient to prove reentry to the scope of employment by the time of their accident. By contrast, in the present case Witmer was authorized and required to return from Rockford after the end of his normal work day; there is no dispute that Rockford was to be his departure point for the return; there is no question that, before his return trip, he was within the scope of employment; he had no specific instructions as to departure time or route, being required only to report for work the next morning; and the only question is whether, at some point on the return trip, he left the scope of employment. Given conflicting evidence, this was not a question of law.
The appellate court correctly distinguished Prince. Though we are not passing judgment on Prince’s holding, on this appeal that case might have precedential value as to any reentry attempt by Witmer only if he could first have been held as a matter of law to have left the scope of employment.
Though D.R.W. reiterates its view that the appellee presented no facts in colorable support of reentry that would be sufficient to defeat its motion for summary judgment, D.R.W. persistently equates “no evidence” with circumstantial evidence. The cases cited by D.R.W. in support of its contention are inappоsite, since they involved a true absence of material evidence rather than involving circumstantial evidence that needed weighing. See Seefeldt v. Millikin National Bank (1987),
As for D.R.W.’s assertion that, in order to be acceptable, any circumstantial evidence on the appellee's part must admit only of the conclusion that Witmer had reentered the scope of employment, D.R.W. is wrong for two reasons. First, as previously noted, no showing of reentry would even be necessary unless a departure from the scope were first found. Second, D.R.W. misapprehends the criteria for weighing circumstantial evidence.
Circumstantial evidence is “often more satisfactory •than direct evidence. To be sufficient, circumstantial evidence must show a probability of the existence of the fact, and the circumstantial facts must be of such nature and so related as to make the conclusion reached *** the more probable in a civil action.” (2 S. Gard, Illinois Evidence Manual R 26:04 (2d ed. 1979).) Though “[a] fact cannot be inferred from the evidence when the existence of another fact inconsistent with the first can be inferred with equal certainty from the same evidence” (Presbrey v. Gillette Co. (1982),
As observed in a case on which D.R.W. relies in another connection and which involved circumstantial evidence of an employment relationship:
“[T]he plaintiff is not required to prove his case to the extent that all other possible influences [i.e., inferences] are eliminated and no contrary verdict could be possible. * * *
'*** The sole limitation on the use of circumstantial evidence is that inferences drawn therefrom must be reasonable. *** The law wisely does not demand that the evidence exclude all other possible conclusions.’ ” Fuery v. Rego Co. (1979),
At one point, D.R.W. says that the “only real issue” of this case was whether Witmer was within the scope of employmеnt at the time of the accident. Despite D.R.W.’s various formulations of the gist of this case, the chief issue before the appellate court, as later before us, was really whether a genuine dispute existed as to a material fact regarding Witmer’s being within the scope at the time of the accident. Since there was such a dispute, and reasonable persons could draw divergent inferences from the evidence presented, summary judgment was improperly entered.
Accordingly, the judgment of the appellate court, reversing the judgment of the circuit court of McHеnry County and remanding the cause to that court, is affirmed.
Judgment affirmed.
Dissenting Opinion
dissenting:
The majority opinion cites all the correct propositions of law, but comes to the wrong conclusion by not properly applying them. I, therefore, dissent.
No other inferences can be logically drawn than that the deceased was not in the course of his employment at the time of the accident, but was on a “frolic” of his own. He was sent to Rockford to take a test. As agreed by the parties, it is not disputed that he would have been in the course of his employment during the taking of the test and during travel incident therеto. However, the accident happened 21/2 hours after the test was completed, and at a place where his employment would not have taken him. The most direct route between Rockford and the deceased’s home is Interstate Highway 90. The next most direct route is U.S. Highway 20. The deceased was on neither of these highways at the time of the accident. The majority opinion seems to imply that he was traveling in an area he could be expected to travel on his way home from Rockford. He was not. He was traveling south on a country road, two miles north of U.S. Highway 20. He was coming from the north and not from Rockford, which is directly west of the scene of the accident. The country road on which he was traveling is not a shortcut to Rockford. In fact, it does not even lead to Rockford. Rather, it is directly south of Capron, Illinois, the town in which the deceased formerly lived. One need only look at a road map of Illinois to be convinced that the deceased’s employment did not place him at the scene of the accident. Travel incident to the employment in which the deceased was engaged would have taken him to Rockford and then back to his home. It would not have taken him on a tour of northern Illinois.
Furthermore, at the time of the accident, the deceased’s blood-alcohol content was .187, nearly twice the legal limit for driving of .10. Possibly a beer or two, or even a slight overindulgence alone, would not have jeopardized the deceased’s course-of-employment status. However, he so deviated from his assigned mission that he became intoxicated to the extent that he was committing a serious criminal act by driving. That, coupled with the deviation in time and travel, prevents me from agrеeing with the majority’s conclusion that there exists a question of fact as to whether the deceased was in the course of his employment. Summarizing, the accident happened 2V2 hours after the test was completed, at a place where the deceased’s employment did not take him, and he was so intoxicated that he could not lawfully drive.
This was not a case of a slight deviation from the deceased’s employment. He had so departed from his assigned purposed that as a matter of law, it cannot be said he was performing within the course of his employment. He was, instead, serving solely his own personal purpose. The mere fact that he was driving in the general direction of his home did not bring him back within the scope of his employment. (See Sauer v. Iskowich (1967),
For the above reasons, I dissent.
JUSTICE MILLER joins in this dissent.