Unpublished Disposition, 872 F.2d 428 (9th Cir. 1989)

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US Court of Appeals for the Ninth Circuit - 872 F.2d 428 (9th Cir. 1989)

Lana K. JOHNSTON, surviving spouse and personalrepresentative of the Estate of Lawrence C.Johnston, Jr., deceased; RogerNahrgang, Plaintiffs-Appellants,v.Timothy John NELSON, an individual, Defendant,andRoad Profilers, Inc., a Washington corporation, et al.;Watson Asphalt Paving Company, a Washingtoncorporation, Defendants-Appellees.

No. 87-4181.

United States Court of Appeals, Ninth Circuit.

Argued Oct. 6, 1988.Submitted Jan. 20, 1989.Decided March 23, 1989.

Before TANG, DAVID R. THOMPSON and O'SCANNLAIN, Circuit Judges.


Johnston and Nahrgang ("appellants") appeal the district court's summary judgment dismissal of Road Profilers, Inc. and Watson Asphalt Paving Company ("appellees") for damages in tort relating to the death of Johnston's husband.

Johnston was killed when the tractor trailer he was driving was struck by debris thrown from a truck driven by Nelson, an employee of appellees. At the time of the accident, Nelson was driving in a lane marked for use by construction employees only. The accident occurred after Nelson lost control of his vehicle, and struck a dirt pile, thereby sending cutting bits, tools, and material flying into Johnston's windshield. Johnston lost control of his truck, crashed, and subsequently died.

This case was originally filed in the United States District Court for the District of Montana and was transferred to the District Court for the District of Idaho, Northern Division under 28 U.S.C. § 1404(a).

After complaints and responses were filed, the appellees moved for summary judgment on the ground that no genuine issue of material fact remained and the case could be decided as a matter of law. The motion was granted by the district court. Appellants seek reversal.


A grant of summary judgment is reviewed de novo. T.W. Elec. Serv. v. Pacific Elec. Contractors, 809 F.2d 626, 629 (9th Cir. 1987; Darring v. Kincheloe, 783 F.2d 874, 876 (9th Cir. 1986) (citing Lojek v. Thomas, 716 F.2d 675, 677 (9th Cir. 1983); Ashton v. Cory, 780 F.2d 816, 818 (9th Cir. 1986). This de novo standard applies to the district court's interpretation of state law. In re McLinn, 739 F.2d 1395, 1403 (9th Cir. 1984) (en banc). Summary judgment is appropriate only where no genuine issue of material fact exists and the moving party is entitled to judgment as a matter of law. Northrop Corp. v. McDonnell Douglas Corp., 705 F.2d 1030, 1050 (9th Cir.), cert. denied, 464 U.S. 849 (1983).


The Issue of Respondeat Superior

The district court held that, "the record is devoid of any evidence that Nelson's employers had the right to control or direct when and where Nelson chose to eat dinner and the route that he would take to reach his destination. Accordingly, the Motions for Summary Judgment of Watson Asphalt and Road Profilers will be granted."

The district court based its opinion with regard to the respondeat superior issue upon two cases, Van Vranken v. Fence-Craft, 91 Idaho 742, 430 P.2d 488 (1967) and Garrett Freightlines, Inc. v. United States, 529 F.2d 26 (9th Cir. 1976). In both of these cases Idaho law was applied. In Van Vranken, the Idaho Supreme Court found that for issues of respondeat superior, the "principal concern is with the 'right to control' the activities of the agent reserved by the employer and not with the extent of control actually exercised." Id. at 493. The Ninth Circuit applied this same criterion in Garrett. Id. at 28.

The district court applied Garrett and Van Vranken and found that "the deposition testimony of Timothy Nelson provides the most compelling evidence in support of the assertion by Watson and Road Profilers that Nelson was not acting within the scope of his employment at the time of the accident." Nelson testified that he had finished work about one and a half hours before the accident occurred. After finishing work, he drove down the road on his way to Kellogg, Idaho, seeking something to eat. During this trip, he drove in the construction lane to gauge the amount of road construction remaining. He stated in his deposition that he did so, "just out of curiosity." This statement, construed in the light of Garrett and Van Vranken, properly led the district court to conclude that judgment should be entered in favor of both Road Profilers and Watson Asphalt. Nothing in the record requires a contrary result.

Nor is Wise v. Arnold Transfer & Storage Co., Inc., 704 P.2d 352, 355-56 (Id.App.1985) persuasive. While the Idaho Court of Appeals held that employees authorized to travel on their jobs may indeed be found to be acting within the scope of their employment, it requires that employees "are going to or from the employment on some substantial mission for the employer growing out of the employment." Id. at 356. In this case there is no showing that the employee was on any mission of his employer, let alone a substantial one.

Disposition of All Issues

The district court's decision on the scope of employment question was not dispositive of Road Profilers' and Watson Asphalt's role in this case. Because some issues were unclear in the record, we remanded to the district court for further findings. On remand, the district court determined that there was no evidence that appellees were negligent in (1) maintaining the pile of aggregate near the road; nor (2) in the manner they maintained the roadway; nor (3) in their allowing Nelson to place the bits and cutting tools on his truck. The district court thus dealt with all issues pertinent to its grant of summary judgment. We find nothing in the record to dispute its determination. Therefore, we affirm.


The district court correctly assessed the law regarding Road Profilers' and Watson Asphalt's alleged responsibility. Neither of these parties was responsible under a theory of respondeat superior because Nelson was neither working for nor under the control of his employers at the time of the accident. There is no evidence that Road Profilers or Watson Asphalt were negligent in their own right. Therefore, the district court properly granted appellees' motion for summary judgment.


TANG, Circuit Judge, dissenting:

I believe that a rational trier of fact could resolve the respondeat superior issue in favor of Johnston and Nahrgang, and therefore I dissent.

The president and general manager of Road Profilers, Ann Brecher, testified that Nelson was directing the work behind the scenes. This testimony, coupled with Nelson's statement that he "was trying to figure out how much time we'd have to spend over there," viewed in a light most favorable to the nonmoving parties, supports a conclusion that Nelson was working at the time of the accident.

Although Nelson also stated that he was gauging the amount of road construction "just out of curiosity," neither this court nor the trial judge below should have weighed this evidence against Brecher's statement that Nelson was directing the work behind the scenes, and hence was impliedly within the scope of his employment while inspecting the road construction.

As this Court observed in T.W. Elec. Service v. Pacific Elec. Contractors, 809 F.2d 626, 630-31 (9th Cir. 1987):

At this stage of the litigation, the judge does not weigh conflicting evidence with respect to a disputed material fact. Nor does the judge make credibility determinations with respect to statements made in affidavits, answers to interrogatories, admissions, or depositions. These determinations are within the province of the fact finder at trial. Therefore, at summary judgment, the judge must view the evidence in the light most favorable to the nonmoving party: if direct evidence produced by the moving party conflicts with direct evidence produced by the nonmoving party, the judge must assume the truth of the evidence set forth by the nonmoving party with respect to that fact.

Id. (citations omitted)

Here, the trial court and this court are weighing Brecher's testimony that Nelson was directing the work and Nelson's statement that he was gauging the project's progress against Nelson's statement that he was viewing the construction "just out of curiosity." Such determinations are solely the jury's.

The conflicting evidence about the nature of Nelson's responsibilities on the job, the purpose of his trip which caused the accident, and the questionable credibility of his testimony, compel me respectfully to dissent.


This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by Ninth Circuit Rule 36-3