Torts--Respondeat Superior for Out of Town Employee

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Engler v. Gulf Interstate Engineering, Inc., 227 Ariz. 486, 258 P.3d 304 (App. Div. I, August 9, 2011) (J. Winthrop)

EMPLOYEE WORKING OUT OF TOWN IN AUTO ACCIDENT ON WAY BACK TO HOTEL FROM DINNER NOT ACTING WITHIN COURSE AND SCOPE OF EMPLOYMENT/ DIVISION I REJECTS DIVISION II HOLDING

Ian Gray lived and worked in Houston for Gulf Interstate Engineering [Gulf]. He was sent to work on a natural gas compressor in Mexico for several weeks. He and other employees on the project stayed in a hotel in Yuma, Arizona and drove to and from Mexico every day for work. On December 11, 2007 Gray finished work in Mexico, returned to his Yuma hotel, then went to dinner with another employee at a Yuma restaurant. After dinner while driving a rental car back to the hotel Gray struck the plaintiff who was riding a motorcycle. Plaintiff sued Gulf alleging it was liable under respondeat superior. Gulf moved for summary judgment on the basis Gray was outside the course and scope of his employment at the time of the accident and therefore Gulf had no vicarious liability for his actions. The trial court and the Arizona Court of Appeals, Division I, agreed.

This decision has set up a conflict between Division I and Division II of the Arizona Court of Appeals, so expect the Arizona Supreme Court to accept review of this case to resolve the conflict. In McCloud v. Kimbro, 224 Ariz. 121, 228 P.3d 113 (App. 2010) Division II, borrowing concepts from Arizona's Workers Compensation law, held that a state employee working out of town on his way to lunch at a restaurant after completing his work for the day was within the course and scope of his employment. The court found that when employees are living away from home as part of a work assignment, eating becomes an essential part of their employment and therefore they are within the scope when going to a restaurant to eat. Division I disagreed.

Division II found that while workers compensation principles may sometimes be instructive in the tort context, because workers compensation law is remedial in nature, because courts are to err in favor of finding an employee within the course and scope when evaluating whether workers compensation should be paid and because the damages awardable under workers compensation are more circumscribed, the broad definition of course and scope should not be applied here. It has long been recognized in tort law that in order for an employee to be within the course and scope of employment the employer "must have the right to control the activities of the employee at the time of the alleged injury." Here that clearly was not the case and therefore the reasoning of McCloud was rejected and Gray was found to be outside the course and scope of his employment with Gulf.

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