PUBLISHED OPINION
Case No.: 94-1991
† Petition
for Review Filed.
Complete Title
of Case:
93-CV-009620
JANE DeRUYTER,
JASON DeRUYTER AND
TRAVIS DeRUYTER,
BY DONALD J. JACQUART,
THEIR GUARDIAN AD LITEM AND THE ESTATE
OF GLENN R. DeRUYTER,
BY ERIC E.
EBERHARDT, SPECIAL ADMINISTRATOR OF THE
ESTATE OF GLENN R. DeRUYTER,
Plaintiffs-Respondents,
v.
WISCONSIN ELECTRIC POWER COMPANY,
Defendant-Appellant,
AMERICAN STANDARD INSURANCE COMPANY,
MICHAEL T. SCHMALING, GREAT WEST CASUALTY
COMPANY, INC. AND EMPLOYERS INSURANCE OF
WAUSAU, A MUTUAL COMPANY,
Defendants-Respondents.
------------------------------------------------------------------------
GREAT WEST CASUALTY COMPANY, INC.,
JJ TRANSPORT, INC.,
POWER TRANSPORT, INC.,
and CEDARLAND TRUCKING, INC., †
Plaintiffs-Respondents,
v.
WISCONSIN ELECTRIC POWER COMPANY,
Defendant-Appellant,
AMERICAN STANDARD INSURANCE
COMPANY OF WISCONSIN and
MICHAEL T. SCHMALING,
Defendants-Respondents.
Submitted on Briefs: May 3, 1996
Oral Argument: ---
COURT COURT
OF APPEALS OF WISCONSIN
Opinion Released: February 27, 1996
Opinion Filed: February 27, 1996
Source of APPEAL Appeal
from an order
Full Name JUDGE COURT: Circuit
Lower Court. COUNTY: Milwaukee
(If "Special", JUDGE: John E. McCormick
so indicate)
JUDGES: Sullivan,
Fine and Schudson, JJ.
Concurred:
Dissented:
Appellant
ATTORNEYSFor
defendant-appellant Wisconsin Electric Power Company the cause was submitted on
the briefs of Jeffrey Morris of Quarles & Brady of Milwaukee.
Respondent
ATTORNEYSFor
the plaintiffs-respondents the cause was submitted on the briefs of David P.
Lowe and Donald J. Jacquart of Jacquart & Lowe, S.C., of
Milwaukee, and Michael P. Crooks of Peterson, Johnson & Murray,
S.C., of Madison.
For
defendant-respondent Great West Casualty Company, Inc., the cause was submitted
on the briefs of Douglas J. Carroll of O'Neill, Schimmel, Quirk &
Carroll, S.C., of Milwaukee.
Amicus
Curiae brief was filed by Patrick K. Stevens of Madison, Werner E.
Scherr of Kasdorf, Lewis & Swietlik, S.C., of Milwaukee, Jeffrey
S. Meyer of Brookfield, Michael A. Greene of Milwaukee, Jerome D.
Okarma of Milwaukee, and Edwina A. Wilson of Waukesha, for Wisconsin
Manufacturers & Commerce, Milwaukee Transport Services, Inc., Harnischfeger
Industries, Inc., Johnson Controls, Inc., Wisconsin Bell, Inc., and General
Electric Medical Systems.
|
COURT OF APPEALS DECISION DATED AND RELEASED February 27, 1996 |
NOTICE |
|
A party may file with the
Supreme Court a petition to review an adverse decision by the Court of
Appeals. See § 808.10 and
Rule 809.62, Stats. |
This opinion is subject to
further editing. If published, the
official version will appear in the bound volume of the Official Reports. |
No. 94-1991
STATE
OF WISCONSIN IN COURT OF
APPEALS
93-CV-009620
JANE DeRUYTER, JASON DeRUYTER AND
TRAVIS DeRUYTER, BY DONALD J. JACQUART,
THEIR GUARDIAN AD
LITEM AND THE ESTATE
OF GLENN R. DeRUYTER, BY ERIC E.
EBERHARDT, SPECIAL
ADMINISTRATOR OF THE
ESTATE OF GLENN R. DeRUYTER,
Plaintiffs-Respondents,
v.
WISCONSIN ELECTRIC
POWER COMPANY,
Defendant-Appellant,
AMERICAN STANDARD
INSURANCE COMPANY,
MICHAEL T. SCHMALING,
GREAT WEST CASUALTY
COMPANY, INC. AND
EMPLOYERS INSURANCE OF
WAUSAU, A MUTUAL
COMPANY,
Defendants-Respondents.
------------------------------------------------------------------------
GREAT WEST CASUALTY
COMPANY, INC.,
JJ TRANSPORT, INC.,
POWER TRANSPORT, INC.,
and CEDARLAND
TRUCKING, INC.,
Plaintiffs-Respondents,
v.
WISCONSIN ELECTRIC
POWER COMPANY,
Defendant-Appellant,
AMERICAN STANDARD
INSURANCE
COMPANY OF WISCONSIN
and
MICHAEL T. SCHMALING,
Defendants-Respondents.
APPEAL from an order of
the circuit court for Milwaukee County: JOHN E. McCORMICK, Judge. Reversed and cause remanded with
directions.
Before Sullivan, Fine
and Schudson, JJ.
SULLIVAN, J. In this case we reaffirm the inveterate rule
of law in Wisconsin that an employee is acting within the scope of his or her
employment while driving to or from work only if the employer exercises control
over the method or route of the employee's travel. Consequently, we reject the trial court's ruling, which held as a
matter of law that Wisconsin Electric Power Company was vicariously liable for
the allegedly negligent actions of its employee, Michael T. Schmaling, while he
drove from his home to a vocational training session held at Wisconsin
Electric's central training center. The
trial court ruled that “special circumstances” existed which excepted this case
from the general employer-control test.
In essence, the trial court adopted a “special mission” exception to the
general rule; this exception is recognized in other jurisdictions. We hold that no such exception exists under
Wisconsin law and that the summary judgment materials conclusively establish as
a matter of law that Wisconsin Electric did not exercise control over
Schmaling's route or method of travel, and thus was not vicariously liable for
his alleged negligence. Accordingly, we
must reverse the trial court's non-final summary judgment order and remand the
matter for further proceedings consistent with this opinion.
I.
Background.
Shortly before 7:00 a.m.
in January 1993, Glenn DeRuyter was driving a tanker-truck filled with jet fuel
in the center north-bound lane of Interstate 94 in Racine County. Schmaling, driving his Chevy Blazer at a
speed of 75 to 80 miles per hour, was also traveling north from his home in
Kenosha to a vocational training session that began at 7:00 a.m. at Wisconsin
Electric's central training center in the City of West Allis. He attempted to pass DeRuyter's tanker on
the right, but nearly struck a vehicle loaded with snowmobiles. Schmaling swerved further to the right, onto
the snow and ice-covered highway shoulder, and then passed the vehicle hauling the
snowmobiles. When he attempted to pull
his Blazer back onto the highway, he lost control of his Blazer and spun around
into the north-bound traffic lanes.
DeRuyter's tanker jack-knifed and left the interstate, rolled down an
embankment, and burst into flames—killing DeRuyter. The accident also caused significant property damage.
Schmaling's blood was
tested shortly after the accident. The
test recorded a .064 % blood alcohol content, and revealed trace amounts of
marijuana and cocaine. He was criminally
charged, convicted, and sentenced for one count of reckless homicide and four
counts of second-degree recklessly endangering safety. See generally State v.
Schmaling, ___ Wis.2d ___, 543 N.W.2d 555 (Ct. App. 1995) (discussing
criminal case against Schmaling).
Two civil suits arising
out of this accident were commenced and later consolidated. In the first, DeRuyter's estate filed a
wrongful death and survivorship action against, inter alios, Schmaling
and his employer, Wisconsin Electric.
In the second, JJ Transport, Inc., Power Transport, Inc., and DeRuyter's
insurer, filed a negligence suit against Schmaling, his insurer, and Wisconsin
Electric, seeking recovery for property damage caused in the accident.[1]
Both suits alleged that
Schmaling was employed by Wisconsin Electric and was acting within the scope of
his employment with the company when the accident occurred. Hence, the suits alleged that Wisconsin
Electric was vicariously liable for Schmaling's conduct under the doctrine of respondeat
superior.
The suits alleged these
additional facts. Wisconsin Electric
hired Schmaling as a line mechanic in March 1992, and assigned him to Wisconsin
Electric's Kenosha service center. When
Wisconsin Electric hired him, the company advised him to report for his first
day of work at Wisconsin Electric's training center in West Allis, and provided
him with a general map of its location.
(See appendix.) After
completing his original training, he began working from the Kenosha service
center. He was later informed by
Wisconsin Electric that he had to attend a second mandatory training session in
West Allis beginning in January 1993.
As part of the training session, the employee needed to bring equipment
to the training center. Schmaling
attended the sessions in West Allis from January 4-7, 1993, by either driving
himself to the center or by car-pooling with other Kenosha-based employees.
Wisconsin Electric and
Schmaling's union had a contract that provided a temporary transfer allowance
for Wisconsin Electric employees assigned on a temporary basis to a location
other than their regular work headquarters.
Schmaling received this travel allowance for those days when he reported
for work at the West Allis training center.
The allowance was based on the distance between the Kenosha service
center and the West Allis training Center in recognition of the employees' “additional
round-trip automobile expense, mileage and travel time.” Wisconsin Electric paid the allowance
irrespective of whether the employee drove his or her own automobile, and
regardless of how the employee arrived at the temporary work location.
Wisconsin Electric also
had a “fitness-for-duty” policy governing its employees. The policy forbade Wisconsin Electric
employees from consuming or being under the influence of alcohol “during the
four hour period preceding on duty time.”
The policy defined duty time as: “All time from the time an employee
begins to work or is required to be in readiness to work.” It was alleged in the pleadings that
Schmaling had spent the night prior to the accident drinking beer in three
Kenosha bars. He estimated that he
drank “nine, ten beers, maybe a little more.”
He did not return home from the bars until after midnight, and then
drank another beer before going to bed.
After the accident, Wisconsin Electric fired Schmaling based, at least
in part, upon his violation of the fitness-for-duty policy by being under the
influence of alcohol within the four hours preceding work.
The parties filed
cross-motions for summary judgment, each side focusing on the
scope-of-employment issue. The trial
court held as a matter of law that Schmaling was acting within the scope of his
employment with Wisconsin Electric because the company: (1) directed him to
attend the training center in the City of West Allis to which he was traveling
at the time of the accident; (2) paid him an additional travel allowance to
attend the session; (3) provided him with a map with general directions to the
training facility; (4) mandated a “fitness-for-duty” policy, which prohibited
Schmaling from consuming or being under the influence of alcohol during the
four hours preceding his duty-time; and (5) primarily benefitted from Schmaling
attending the training session. The
trial court ruled that none of these factors taken separately would have been
sufficient to place Schmaling's conduct within the scope of his employment, but
taking the factors together, they created “sufficient special circumstances”
that placed his actions within the scope of employment at the time of the
accident. Accordingly, the trial court
ruled as a matter of law that Wisconsin Electric was vicariously liable for
Schmaling's conduct. Wisconsin Electric
petitioned this court for leave to appeal from the non-final order
incorporating this ruling. We granted
the petition.
II.
Analysis.
“Summary judgment is
appropriate to determine whether there are any disputed factual issues for
trial and `to avoid trials where there is nothing to try.'” Caulfield v. Caulfield, 183
Wis.2d 83, 91, 515 N.W.2d 278, 282 (Ct. App. 1994) (citation omitted). When we review a motion for summary judgment
we apply the same methodology as the trial court, but we do not accord the
trial court's conclusion any deference.
Kotecki & Radtke, S.C. v. Johnson, 192 Wis.2d 429,
436, 531 N.W.2d 606, 609 (Ct. App. 1995).
The methodology is oft repeated:
[W]e first examine the pleadings to
determine whether they state a claim for relief. If the pleadings state a claim and the responsive pleadings join
the issue, we then must examine the evidentiary record to analyze whether a
genuine issue of material fact exists or whether the moving party is entitled
to judgment as a matter of law.
Further, “[o]n summary judgment, we must draw all justifiable inferences
in favor of the non-moving party, including questions of credibility and of the
weight to accorded particular evidence.”
Bay
View Packing Co. v. Taff, ___ Wis.2d ___, ___, 543
N.W.2d 522, 529 (Ct. App. 1995) (citations omitted).
The trial court ruled as
a matter of law that Schmaling was acting within the scope of his employment
with Wisconsin Electric. Normally,
the scope-of-employment issue is presented to the jury because it entails
factual questions. See Desotelle
v. Continental Casualty Co., 136 Wis.2d 13, 26-28, 400 N.W.2d 524, 528‑29
(Ct. App. 1986). Thus, for a trial
court to rule on summary judgment that an employee was acting within the scope
of his or her employment as a matter of law, there can be no genuine material
factual dispute on this issue. After
our de novo review of the summary judgment materials, we conclude that
the trial court incorrectly applied the relevant scope-of-employment
standards. We further conclude that the
summary judgment materials conclusively establish that Schmaling was not acting
within the scope of his employment with Wisconsin Electric when the accident
occurred.
Under the doctrine of respondeat
superior employers can be held vicariously liable for the negligent acts of
their employees while they are acting within the scope of their
employment. Shannon v. City of
Milwaukee, 94 Wis.2d 364, 370, 289 N.W.2d 564, 568 (1980).[2] The touchstone of scope-of-employment issues
such as the one in the present case is employer control over the employee. See Olsen v. Moore, 56
Wis.2d 340, 353-54, 202 N.W.2d 236, 243 (1972). This employer-control test is firmly entrenched in Wisconsin
jurisprudence. The general maxim is:
Where an employee works for another at a
given place of employment, and lives at home or boards himself, it is the
business of the employee to present himself at the place of employment, and the
relation of master and servant does not exist while he is going between his
home and place of employment.
Geldnich
v. Burg, 202 Wis. 209, 210, 231 N.W. 624, 624 (1930).[3] Thus, only when the employer exercises
control over the method or route of the employee's travel to or from work can
the employee be said to be acting within his or her employment. See Kamp v. Curtis, 46
Wis.2d 423, 431-32, 175 N.W.2d 267, 271 (1970); Strack v. Strack,
12 Wis.2d 537, 542, 107 N.W.2d 632, 634 (1961). This is the rule because without such control, the employee is
not actuated by a purpose to serve the employer, see Strack,
12 Wis.2d at 541, 107 N.W.2d at 633‑34; see also Restatement (Second) of Agency
§ 228(2) (1957) (“Conduct of a servant is not within the scope of
employment if it is ... too little actuated by a purpose to serve the
master.”), but is solely promoting the employee's “own convenience.” Strack, 12 Wis.2d at 541, 107
N.W.2d at 634.
DeRuyter's estate
contends that “special circumstances” can exist that except an employee from
the employer control rule. Indeed, the
estate points to other jurisdictions that have adopted a “special mission”
exception to the general rule that an employee is not acting with the scope of
employment while traveling to and from work.
See, e.g., Chevron v. Lee, 847 S.W.2d 354, 356
(Tex. Ct. App. 1993) (holding that a “`special mission' exists when an employee
is not simply traveling from his home to his normal place of employment, or
returning from his normal place of employment to his home for his own purpose,
but is traveling from his home or returning to it on a special errand either as
part of his regular duties or at the specific order or request of his
employer”). The estate then points to
four factors that the trial court used in support of its ruling that Schmaling
was acting within the scope of his employment with Wisconsin Electric. It argues that these factors support its
contention that Schmaling was engaged in a “special mission” for Wisconsin
Electric when the fatal accident occurred.
We address these factors seriatim.
A. Travel time
compensation.
Schmaling's
union-negotiated contract provided for travel-time compensation for employees
temporarily assigned to other Wisconsin Electric job locations. Schmaling received this compensation for
traveling to the West Allis training center.
DeRuyter's estate argues that the travel time compensation was the
equivalent of exercising control over Schmaling and others to whom the
allowance was paid. We disagree.
The determinative factor
is employer control; here, the travel allowance signalled none. The negotiated contract provided
compensation to employees for vehicular travel costs and time costs regardless
of method of transportation the employee used.
Indeed, Schmaling admitted that he would have received the compensation
no matter how he travelled to the training center; and he received the
allowance even though he car-pooled.
The law in Wisconsin is clear that the mere payment of an employee's
travel cost vests no right of control with the employer, unless the employer
exercises such control or retains the right to control the employee's route or
method of travel. Olsen,
56 Wis.2d at 353-354, 202 N.W.2d at 243 (union contract with employer requiring
payment toward employee's transportation costs did not vest control in the
employer for imposition of liability for employee's vehicular negligence). Here, the contract neither provided for such
employer control, nor did Wisconsin Electric exercise control.
B. Map.
DeRuyter's estate argues
that Wisconsin Electric did control the route of Schmaling's travel by providing
him with a map and by giving him directions over the phone on how to get to the
center from Kenosha. It is undisputed
that Wisconsin Electric did forward Schmaling a map of the West Allis training
center when he was first hired. (See
appendix.) This map, however, contains
no directions. It merely depicts the
layout of the training center, contiguous West Allis streets, and the location
of Interstate-94 to the north of the center.
The trial court stated
that the map, in part, established Wisconsin Electric's control over
Schmaling's route of travel. We
disagree. The map did not control the
route of Schmaling's travel from Kenosha, it merely provided general directions
to the center for employees unfamiliar with its location. Further, while Schmaling did call Wisconsin
Electric for additional directions, the company did not mandate that he take a
certain route. Schmaling was free to
travel by any of many routes that led from Kenosha to West Allis. The fact Schmaling chose to travel on
Interstate 94, the highway shown on the map, rather than by another route does
not establish that Wisconsin Electric controlled that route.
C. Fitness-for-duty
policy.
DeRuyter's estate also
contends that Wisconsin Electric's “fitness-for-duty” policy evinces the
company's right to control its employee's conduct, and that Wisconsin Electric
did in fact exercise control over Schmaling when it fired him for violating the
alcohol-prohibition provision. Once
again, we disagree.
The policy, inter
alia, prohibited Wisconsin Electric employees from either consuming or
being under the influence of alcohol during the four hours preceding their
duty-time.[4] Thus, DeRuyter's estate argues that by
placing this condition on Schmaling's employment, Wisconsin Electric evinced a
right to control Schmaling when he was traveling from his home to the training
center. As the amicus curiae
brief cogently points out, this argument is specious and contravenes sound
public policy.[5] Alcohol and drug use cause myriad problems
and dangers in the work place. Hence,
there are salutary reasons for promoting a drug and alcohol-free work place,
and thus, we will not expose employers to vicarious liability solely because
they are pursuing this laudatory goal.
The Wisconsin Electric “fitness-for-duty” policy attempts to limit the
danger of an employee reporting to work in a hazardous condition. Such a policy is insufficient to trigger an
employer's liability under respondeat superior.
D. Remaining factors.
Deruyter's estate
finally argues that Schmaling was acting within the scope of his employment
with Wisconsin Electric because his training in West Allis was mandatory and
that Wisconsin Electric was the primary beneficiary of Schmaling's
training. It is undisputed that
Wisconsin Electric required Schmaling to attend the training session. This fact is insufficient to trigger
vicarious liability in this case because it does not show any employer control
over the method or route of Schmaling's transit to the training session. See Strack, 12 Wis.2d
at 542, 107 N.W.2d at 634. Further,
even if Wisconsin Electric benefited from Schmaling's attendance at the
training center, without evidence of Wisconsin Electric's right to control
Schmaling's route and method of travel to that training session, respondeat
superior does not apply. See
Kamp, 46 Wis.2d at 430-32, 175 N.W.2d at 270‑71 (stating
that even if the purpose of employee's trip was to benefit employer, without an
employer's right to control the route and the instrumentality of travel, the
employee was not acting within scope of employment).
E. “Special mission”
exception.
The trial court
correctly stated that none of the above factors alone would place Schmaling's
conduct within the scope of his employment with Wisconsin Electric. The trial court then inexplicably ruled that
taking these factors together, the record established as a matter of law that
Schmaling was acting within the scope of his employment—in essence creating a
“special mission” exception to the long-standing employer-control test. We reject this analysis. As we have already discussed, none of the
factors used by the trial court, standing alone, was sufficient to bring
Schmaling's actions within the scope of his employment. Combining these factors adds nothing. “Zero plus zero equals zero.” Mentek v. State, 71 Wis.2d
799, 809, 238 N.W.2d 752, 758 (1976).
III.
Summary.
The trial court erred by
ruling as a matter of law that Schmaling was acting within the scope of his
employment with Wisconsin Electric. Our
de novo review of the summary judgment materials conclusively
establishes as a matter of law that Wisconsin Electric did not exercise control
over Schmaling's route or method of travel, and thus was not vicariously liable
for his alleged negligence. Accordingly
we must reverse the non-final order and remand for further proceedings
consistent with this opinion.
By the Court.—Order
reversed and cause remanded with directions.
[1] We refer to both sets of plaintiffs for the remainder of this opinion collectively as “DeRuyter's estate.”
[2] The doctrine is a bedrock of American tort law. See, e.g., Philadelphia & Reading R.R. v. Derby, 55 U.S. (14 How.) 468, 480 (1852) (“`A master is ordinarily liable to answer in a civil suit for the tortious or wrongful acts of his servant, if those acts are done in the course of his employment in his master's service; the maxims applicable to such cases, being, Respondeat superior, [“Let the master answer.”] and Qui facit per alium, facit per se [“He who acts through another, acts himself.”].'” (citation omitted; bracketed materials added)); see also Restatement (Second) of Agency § 219(1) (1957).
[3] Indeed, one of the first statements of this maxim in Wisconsin was made in 1888: “The man who travels four rods to and from work ... is no more in the employ of his master while so traveling than the one who travels four miles or further ....” Ewald v. Chicago N.W. Ry., 70 Wis. 420, 436, 36 N.W. 12, 591, 592 (1888) (Taylor, J. dissenting). “[T]he courts have held that while going to and returning from the place of his employment after his day's work was finished and before it commenced again on the next working day, he was not in the employ of the master.” Id. at 437-38, 36 N.W. at 593. The roots of this maxim are even older. See, e.g., id. at 438-39, 36 N.W. at 593 (discussing the Scottish common law case Brydon v. Stewart, which reached the opposite conclusion to the above rule and was overruled by the British House of Lords).
[4] The policy states in
relevant part:
Rules Regarding Illegal Drugs and
Alcohol
An employee who violates any of
the following rules will be subject to disciplinary action up to and including
discharge from employment with WE/WN.
A.An employee shall not use,
possess, or be under the influence of illegal drugs while on duty.
B.An employee shall not use,
possess, be under the influence of, or have any measured alcohol concentration
or any detected presence of alcohol while on duty.
C.An employee shall not consume or be under the influence of alcohol during the four (4) hour period preceding on duty time.