Utah Respondeat superior

Sutton v. Byer Excavating, Inc., 2012 UT App 28

“Under the doctrine of respondeat superior, an employer may be held vicariously liable for the acts of its employee if the employee is [acting] in the course and scope of his employment at the time of the act giving rise to the injury.” Newman v. White Water Whirlpool, 2008 UT 79, ¶ 8, 197 P.3d 654. The party asserting vicarious liability must prove three elements (the Birkner test), see generally Birkner v. Salt Lake Cnty., 771 P.2d 1053, 1056‐57 (Utah 1989), to establish that the employee was acting within the course and scope of his or her employment: (1) “‘an employee’s conduct must be of the general kind the employee is employed to perform’”; (2) “‘the employee’s conduct must occur within the hours of the employee’s work and the ordinary spatial boundaries of the employment’”; and (3) “‘the employee’s conduct must be motivated, at least in part, by the purpose of serving the employer’s interest.’”

Newman v. White Water Whirlpool, 2008 UT 79, ¶ 9 (quoting Birkner, 771 P.2d at 1056‐57).

Whether an employee is in the course and scope of his employment under the Birkner test presents a question of fact for the fact‐finder. Indeed, [s]cope of employment questions are inherently fact bound. Accordingly, scope of employment issue[s] must be submitted to a jury whenever reasonable minds may differ as to whether the [employee] was at a certain time . . . within the scope of employment. Summary judgment is proper, then, only when the employee’s activity is so clearly within or outside the scope of employment that reasonable minds cannot differ. In determining whether reasonable minds might differ about whether an employee is within the course and scope of his employment, the standard to be applied is an objective one. In other words, the standard is not whether these parties’ minds differ—which they obviously do—but whether reasonable jurors, having been properly instructed by the trial court, would be unable to come to any other conclusion regarding the employee’s conduct. If no reasonable juror could come to any other conclusion, summary judgment is appropriate. If, however, reasonable jurors might differ about whether the employee’s actions fell within the course and scope of his employment, summary judgment is improper and the issue should go to the jury for determination.

Newman v. White Water Whirlpool, 2008 UT 79, ¶¶ 10‐11 (alterations and omission in original) (citations and internal quotation marks omitted).