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Law School Case Brief

O'Shea v. Welch - 350 F.3d 1101 (10th Cir. 2003)


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.


Plaintiff O’Shea sued defendants, an employee and his employer, seeking damages based on negligence for injuries he sustained when the car he was driving was struck by a car driven by the defendant employee Welch.  Plaintiff argued that while defendant employee Welch was on the way to distribute baseball tickets to vendors, he made a spur of the moment decision to pull into a service station for car maintenance and struck his car. The district court granted summary judgment to the employer on the respondent superior claim. Plaintiff appealed.


Did the district court err in granting summary judgment to the employer on the grounds that the employee was not within the scope of employment when he struck the car of plaintiff O’Shea?




The court reversed the grant of summary judgment and held that the question of whether the turn into the service station was within the employee's scope of employment was for a jury to decide as it involved questions of fact. Under the facts presented, a reasonable jury could have concluded that the employee was acting within the scope of his employment under the slight deviation analysis given that a stop for routine maintenance on a car used by a store manager for business purposes that was within minutes and feet from the direct route to the district office could be considered within the scope of employment.

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