|McKAY, Circuit Judge.
Appellant filed a claim in the district court for damages against Defendant Welch based on negligence after Appellant sustained injuries when the car that he was driving was struck by a car driven by Mr. Welch. In his complaint, Appellant alleged that Mr. Welch, an Osco employee, was acting within the scope of his employment at the time of the accident. Appellant sought to hold Osco liable for damages under a theory of respondeat superior.
Appellant's version of the facts on summary judgment are as follows. At the time of the accident, Mr. Welch was an Osco store manager. He was driving from his store to the Osco District Office to deliver football tickets for that weekend which were obtained from a vendor for distribution among Osco managers. Mr. Welch frequently made trips for Osco using his own vehicle. During his drive, Mr. Welch remembered that he needed to have some routine maintenance done on his car. He made a spur of the moment decision to pull into a service station for an estimate. Mr. Welch allegedly failed to yield in making a left turn and struck Appellant's car.
On cross-motions for summary judgment, the district court granted Osco's motion and denied Appellant's motion, holding that no reasonable jury could conclude that Mr. Welch was acting within the scope of his employment. The district court did not specifically decide whether the trip to the District Office was within Mr. Welch's scope of employment. Instead, the district court held that it did not matter because, even if the trip had been within the scope of Mr. Welch's employment, the attempted stop at the service station was not. The district court also denied Appellant's motion to reconsider or, in the alternative, to certify a question to the Kansas Supreme Court.
After Osco was dismissed from the case, a bench trial was held on the issue of damages. Defendant Welch did not present evidence or cross-examine witnesses. The court entered judgment against Mr. Welch in the amount of $ 1,014,503.70, "questioning whether it would arrive at the same result in a true adversary proceeding.
The specific issue we are asked to address on appeal is whether the district court erred in granting summary judgment to Appellee Osco on whether Mr. Welch was within the scope of his employment when he turned into the service station for non-emergency maintenance on his car while driving to deliver a vendor gift to the District Office. We review "the grant of summary judgment de novo, applying the same standards used by the district court." . . . A motion for summary judgment is granted when the record demonstrates that "there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law."
Pursuant to Kansas law, an employer is only liable for injuries caused by an employee acting within the scope of his employment. . . . The following Kansas jury instruction is an accurate illustration of Kansas scope of employment law:
"An employee is acting within the scope of [his employment] when [he] is performing services for which [he] has been [employed], or when [he] is doing anything which is reasonably incidental to [his employment]. The test is not necessarily whether this specific conduct was expressly authorized or forbidden by the employer, but whether such conduct should have been fairly foreseen from the nature of the [employment] and the duties relating to it."
Unfortunately, there are no Kansas cases directly on point to help define the parameters of Kansas law. Therefore, in its grant of summary judgment for Osco, the district court relied substantially on two cases from other jurisdictions.
The district court relied heavily on Carroll and Schofield, neither of these cases is from Kansas and, more importantly, neither is similar enough to ours on the facts. . . .
Due to the absence of binding authority, Appellant urges us to decide that Kansas would adopt the "slight deviation" rule which it already follows in worker's compensation cases. Approximately half of the states, supported by American Jurisprudence, have applied some form of the slight deviation analysis in third-party liability cases. . . . Pursuant to this analysis, it must be determined whether the employee was on a frolic or a detour; the latter is a deviation that is sufficiently related to the employment to fall within its scope, while the former is the pursuit of the employee's personal business as a substantial deviation from or an abandonment of the employment. If an employee wholly abandons, even temporarily, the employer's business for personal reasons, the act is not within the scope of employment, and the employer is not liable under respondeat superior for the employee's conduct during that lapse. A diversion from the strict performance of a task is not an abandonment of responsibility and service to an employer, unless the very character of the diversion severs the employment relationship. Acts that are necessary to the comfort, convenience, health, and welfare of the employee while at work are not outside the scope of employment, if the conduct is not a substantial deviation from the duties of employment.
. . . Personal acts that are not far removed in time, distance, or purpose are deemed to be incidental to the employment. . . . Our research has not revealed a single jurisdiction that has considered and rejected slight deviation analysis in third-party liability cases. Kansas has not had the occasion to consider the slight deviation analysis in such cases. However, it has adopted the analysis in worker's compensation cases. We must therefore determine whether Kansas would adopt the slight deviation analysis in cases such as ours to inform our judgment.
Appellant asserts that the Kansas Supreme Court would adopt and apply the slight deviation rule to find that Mr. Welch was within the scope of his employment with Osco when attempting the turn for an estimate on vehicle maintenance. Appellant further argues that the Kansas pattern jury instruction, infra, is itself a rejection of a bright-line rule and demands that an employee's acts be put into context in order to determine what is "reasonably incidental" to employment and what "conduct should have been fairly foreseen." Slight deviation analysis provides a framework for such an analysis. A slight deviation might be considered reasonably incidental to employment while a substantial deviation would not.
Applying slight deviation analysis to our case, we think that the question of whether the turn was within Mr. Welch's scope of employment is for the jury to decide. Whether an employee is acting within the scope of his employment is generally a jury question. . . . "Whenever reasonable minds may differ as to whether the [employee] was at a certain time involved wholly or partly in the performance of his master's business or within the scope of his employment," it is a jury question. . . .
Mindful of the volume of authority which indicates that scope of employment is generally a jury question, we turn to the parameters of slight deviation analysis. The scope of slight deviation analysis has been defined as follows:
To exonerate the master, however, it is essential that the deviation be for purposes entirely personal to the servant . . .; and a deviation will be regarded as immaterial if the latter combines his own business with that of the master or attends to both at substantially the same time . . . A mere deviation from the strict course of his duty does not release the master from liability. In order to have that effect it must be so substantial as to amount to an entire departure.
Dual purpose ventures may be considered within the scope of an employee's employment. . . .
Appellant argues that Mr. Welch was acting within the scope of his employment and made only a slight deviation from his business-related trip at the time the accident occurred. Several factors have been identified as helpful in determining whether an employee has embarked on a slight or substantial deviation. They include: (1) the employee's intent; (2) the nature, time, and place of the deviation; (3) the time consumed in the deviation; (4) the work for which the employee was hired; (5) the incidental acts reasonably expected by the employer; and (6) the freedom allowed the employee in performing his job responsibilities. . . .
Applying these factors to our case, and viewing the facts in a light most favorable to Appellant, Mr. Welch intended to get an estimate for non-emergency maintenance on a car used for business. In terms of purpose, it was maintenance to a vehicle used regularly in performing his job duties for Osco. While his stop was not for emergency maintenance for his car, his stop for routine maintenance on a car used for business purposes could be considered enough of a mixed purpose by a jury to keep him within the scope of his employment with Osco.
In terms of time and place, the accident occurred minutes and feet from the direct route to Osco's District Office. Mr. Welch was simply attempting to turn from the most direct route into a service station right off the main road. At the time of the accident, he had not entered the service station. He was technically still on the road en route to the District Office. Because the accident occurred on this road, not at the service station, a jury could decide that Mr. Welch had not yet abandoned his employment for a personal errand at the time of the accident. It is unclear how long the estimate would have taken. However, we do know that if he had deviated at the time of the accident, the length of the deviation was only a few minutes or less.
Mr. Welch was an Osco store manager. A jury could find that an employee in a managerial position was given some freedom to attend to certain personal needs throughout the day. It is possible that Osco reasonably expected certain incidental acts to take place, especially when a store manager was en route from one store to another or from a store to the District Office.
Assuming without deciding that Mr. Welch was acting within the scope of his employment in delivering the tickets to the District Office, we hold that a reasonable jury could conclude that he was acting within the scope of his employment when he attempted to turn into the service station. A reasonable jury could decide that Mr. Welch's attempted deviation from his direct route to obtain non-emergency vehicle maintenance was something which Osco "might reasonably be deemed to have anticipated and assented to, and was not such as to amount to an abandonment of the employment." . . .
The district court did not specifically decide whether Mr. Welch was in the scope of his employment in making the trip from his store to the District Office. It stated:
"While the court would conclude from the record that genuine issues of material fact exist with respect to whether defendant Welch's delivery of the Chiefs tickets was within the scope of his employment, the court need not address this issue because it concludes that, as a matter of law, defendant Welch's attempted stop at the service station for routine vehicle maintenance was outside the scope of his employment."
. . .We agree with the district court that summary judgment is inappropriate on this issue. Therefore, this issue must be remanded for trial as well.
REVERSED and REMANDED.