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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Ondrusek v. Murphy (09/23/2005) sp-5944

Ondrusek v. Murphy (09/23/2005) sp-5944

     Notice:   This opinion is subject to correction  before
     publication  in  the  Pacific  Reporter.   Readers  are
     requested to bring errors to the attention of the Clerk
     of  the  Appellate  Courts, 303  K  Street,  Anchorage,
     Alaska 99501, phone (907) 264-0608, fax (907) 264-0878,


JOHN ONDRUSEK, ) Supreme Court No. S- 11196
) Superior Court No.
v. ) 1JU-01-01519 CI
Appellee. ) [No. 5944 - September 23, 2005]
          Appeal  from the Superior Court of the  State
          of  Alaska, First Judicial District,  Juneau,
          Patricia Collins, Judge.

          Appearances:  Mark Clayton Choate, Choate Law
          Firm  LCC, Juneau, for Appellants.   Paul  D.
          Stockler, Anchorage, for Appellee.

          Before:   Bryner,  Chief  Justice,  Matthews,
          Eastaugh, Fabe, and Carpeneti, Justices.

          MATTHEWS, Justice.

          This  case  arises  from  an injury  that  occurred  at
Chilkoot  Horseback Adventures on a day that it  was  closed  for
business.  Travis Locke, an employee of Chilkoot, took his mother
and  stepfather, the Ondruseks, out for a horseback  ride.   Upon
return,  Lockes mother got off her horse without assistance,  but
she  fell  and suffered a broken leg.  The Ondruseks sued  Robert
Murphy d/b/a Chilkoot Horseback Adventures for negligence under a
theory  of  respondeat superior.  The superior court  denied  the
Ondruseks motion for summary judgment on this issue and the  case
went to trial.  The jury returned a verdict in favor of Chilkoot.
The   Ondruseks  now  appeal  arguing  that  respondeat  superior
liability  is a question of law and not a question for the  jury,
and  that  no  questions of material fact existed  regarding  the
issue of respondeat superior liability.
          Because  genuine  issues  of material  fact  exist  and
conflicting  inferences could be drawn concerning  whether  Locke
was  acting within the scope of his employment, we conclude  that
the  superior  court  properly  denied  the  motion  for  summary
     A.   Facts
          Robert   Murphy  d/b/a  Chilkoot  Horseback  Adventures
(Chilkoot)  in  Skagway  provides  horseback  rides  and   tours.
Chilkoot operates mostly in the summer months, catering to out-of-
state tourists and Alaska residents.
          In May 2000 Chilkoot was open for business only on days
that  cruise ships were docked in Skagway.  On days that business
was  closed,  Chilkoot sometimes permitted trail guides  to  ride
Chilkoot  horses on their own time and occasionally allowed  them
to  take  friends  and family out for free  rides.   During  some
business  days,  Chilkoot would offer free rides to  cruise  ship
employees  or  friends and family if there  were  openings  in  a
paying tour.
          Chilkoot  expected its guides to follow certain  safety
procedures whenever a non-employee rode a Chilkoot horse, whether
business was open or closed.  These procedures included  a  Horse
101   safety  lecture,  directions  on  the  proper  method   for
dismounting  a  horse,  instructions never  to  dismount  without
assistance  from  a guide, and several checks  to  see  that  the
horses were properly saddled.  When business was closed, Chilkoot
did  not  require non-employees to sign the standard waiver  form
customers signed when business was open.
          Chilkoot  did not permit customers to drive  their  own
vehicles  onto Chilkoot property on days that business was  open,
whether  they  were  paying or not.  Instead, Chilkoot  employees
would  pick  everyone  up at the cruise  ship  dock  in  Chilkoot
vehicles  and  drive  them to the property.   When  business  was
closed,  Chilkoot did not permit guides to use Chilkoot vehicles,
and   thus   non-paying  customers  would   arrange   their   own
transportation to Chilkoot.
          In  1998 Chilkoot hired Travis Locke to work as a trail
guide.   Locke had been riding horses since he was a small  child
and  rode competitively throughout his childhood, in college, and
on  the open circuit.  In 2000 Locke considered himself the  most
experienced, able guide at Chilkoot.
          On  May  27, 2000, Mary Anne and John Ondrusek,  Lockes
mother and stepfather, were visiting Skagway on their way back to
Texas.  Because Chilkoot was not open for business and it  was  a
nice  day, Locke invited the Ondruseks on a free horseback  ride.
The  three  of  them  drove to Chilkoot in  Mary  Annes  vehicle.
Several  other people joined the free ride, including  two  other
Chilkoot  guides and two of Lockes friends who had  never  ridden
before.  Locke did not take the group on the full route used  for
paying  tours  that  day,  but  turned  back  early  because  the
Ondruseks  appeared to be getting sore.  When the group  returned
to  Chilkoot,  Mary Anne attempted to dismount her horse  without
assistance.  While dismounting, Mary Anne fell and broke her leg.
           Whether  Chilkoot  authorized the  ride  that  day  is
disputed.  Murphy testified that Locke did not ask permission for
this  particular ride and that he never met the Ondruseks.  Locke
testified that he told Murphy about the ride and that he did  not
recall  Murphy  prohibiting  Locke  from  riding  in  the   past.
Additionally,  Mary  Anne testified that  she  met  Murphy  right
before  the  ride  and that he said You all  have  a  good  time.
Additionally,  the parties are in disagreement regarding  whether
Locke   gave   a  safety  lecture  before  the  ride,   including
instructing   the  group  not  to  dismount  without  assistance.
Finally, there is a dispute about whether the ride that  day  was
meant  to  benefit  Chilkoots business.   Murphy  testified  that
Chilkoot  encouraged the guides to ride on days off  because  the
more  time  we . . . put on our guides back with the horses,  the
better.   Locke,  on the other hand, testified  that  riding  the
horses  on  days  off did not benefit Chilkoot,  but  harmed  the
business because the horses needed the rest to stay healthy.
     B.   Proceedings
          The  Ondruseks  sued  Chilkoot for negligence  under  a
theory  of respondeat superior.  Chilkoot filed an answer denying
that  the  free ride was business-related and denying that  Locke
was acting within the scope of his employment.  Chilkoot admitted
that  Mary Anne fell when dismounting her horse and was  injured,
but  denied  all other allegations related to the  cause  of  the
          The  Ondruseks  filed  a  motion  for  partial  summary
judgment requesting the trial court to find, as a matter of  law,
that  Locke was acting within the scope of his employment at  the
time  of  Mary Annes accident, and that Chilkoot was  liable  for
Mary  Annes  injuries under the doctrine of respondeat  superior.
Chilkoot filed an opposition to the motion, arguing that material
issues  of  fact existed.  The superior court denied the  motion,
finding multiple issues of material fact relating to the doctrine
of respondeat superior.
          The case was then tried before a jury.  At the close of
trial,  the court instructed the jury that if it determined  that
it  was  more likely than not Lockes conduct occurred within  the
scope  of  his  employment, the jury could find Chilkoot  liable.
The  court  further instructed the jury to consider  the  factors
stated  in  Restatement (Second) of Agency sections 228  and  229
when determining whether Locke was acting within the scope of his
employment.   The special verdict form first asked  the  jury  to
determine  the  scope of employment before addressing  any  other
issues.  Because the jury found that Locke was not acting  within
the scope of his employment, no other issues were reached.
     A.   Standard of Review
          We  review  a  superior  court  order  denying  summary
judgment de novo.1  We will affirm the superior courts denial  of
summary  judgment if a genuine issue of material fact  exists  or
the moving party was not entitled to judgment as a matter of law.2
          A material issue of fact exists where reasonable jurors could
disagree on the resolution of a factual issue.3  Facts are to  be
viewed in the light most favorable to the nonmoving party.4
     B.   The  Superior Court Did Not Err in Denying  the  Motion
          for   Summary  Judgment  on  the  Issue  of  Respondeat
          Superior Because Genuine Issues of Material Fact Exist.
          The   Ondruseks   assert  that  this   court   analyzes
respondeat  superior liability under the Restatement (Second)  of
Agency  section  228  (hereinafter Restatement).   The  Ondruseks
argue  that  the  superior  court  should  have  granted  summary
judgment on the question of respondeat superior liability because
no  issues of material fact existed concerning whether Locke  was
acting  within the scope of his employment under the factors  set
forth in section 228.  Section 228 states in full:
               (1)  Conduct of a servant is within  the
               scope  of  employment if, but  only  if:
               (a) it is of the kind he is employed  to
               perform;   (b)  it occurs  substantially
               within  the  authorized time  and  space
               limits;    (c) it is actuated, at  least
               in  part,  by  a purpose  to  serve  the
               master,   and      (d)   if   force   is
               intentionally   used  by   the   servant
               against another, the use of force is not
               unexpectable by the master.
               (2)  Conduct of a servant is not  within
          the scope of employment if it is different in
          kind  from  that authorized, far  beyond  the
          authorized  time  or  space  limits,  or  too
          little  actuated by a purpose  to  serve  the
          The  Ondruseks  argue  that (1)  the  first  factor  is
satisfied because Chilkoot employed Locke to take people on trail
rides,  and  this  case arose from such a ride;  (2)  the  second
factor  is met because Murphy authorized Locke to take his mother
on  a trail ride and the ride occurred on Chilkoot riding trails;
and (3) the third factor is satisfied because the ride benefitted
Chilkoots  business by providing the guides with experience.  The
Ondruseks  contend  that the above facts are all  undisputed  and
thus  Locke  was acting within the scope of his employment  as  a
matter of law.
          Chilkoot  responds  that this court does  not  strictly
adhere  to the requirements in Restatement section 228, but  also
considers  whether the conduct is of the same general  nature  as
that   authorized,  or  incidental  to  the  conduct   authorized
considering  the  factors set forth in  section  229.5   Chilkoot
asserts that questions such as whether the conduct is too  little
actuated  by  a purpose to serve the master6 are inherently  fact
specific  and should be left for the jury.  Chilkoot argues  that
even if the facts are undisputed, scope of employment is still  a
question  for  the  jury  because reasonable  jurors  could  draw
conflicting inferences.
          Additionally,  Chilkoot disagrees  with  the  Ondruseks
assertion  that  the  facts are undisputed.  Chilkoot  points  to
Lockes  testimony  that the free rides did not  benefit  Chilkoot
because  the horses needed rest on days when Chilkoot was  closed
for  business, and Lockes testimony that the Ondruseks  were  not
paying  for the ride and the rides were not expected to bring  in
future  business.   Chilkoot argues  that  under  these  facts  a
reasonable jury could conclude that Lockes conduct was too little
actuated by a purpose to serve Chilkoot, and thus could find that
Locke was not acting within the scope of his employment.
          Chilkoot  asserts that Lockes conduct was not the  type
Chilkoot employed him to perform because the ride was free, Locke
was  not being paid, Chilkoot was closed, no waivers were signed,
and  the  route  differed from the one used during actual  tours.
Additionally, Chilkoot argues that a dispute exists regarding the
extent  of  departure from the normal method of accomplishing  an
authorized result,7 pointing out that the parties disagree  about
whether the employees followed standard Chilkoot procedures, such
as  giving  a  safety lecture, giving the dismount  warning,  and
checking  the saddles.  Finally, Chilkoot asserts that the  facts
are  in  dispute regarding whether Chilkoot guides commonly  give
this type of ride8 because Locke testified it is pretty rare  for
guides  to  take  people on free rides on days that  Chilkoot  is
          Under  the doctrine of respondeat superior an  employer
may  be  liable for the conduct of its employees if  the  conduct
occurred within the scope of their employment.9  We have  adopted
a flexible analysis for the determination of scope of employment,
guided by the factors stated in the Restatement sections 228  and
          We  have  held that the scope of employment is  a  fact
specific inquiry for the jury unless the facts are undisputed  or
lend  themselves to only one conclusion.11  In Luth v.  Rogers  &
Babler  Construction Co., the tort at issue occurred  during  the
employees  twenty-five-mile commute  between  his  home  and  his
jobsite,  where he worked as a construction flagman.12   We  held
that,  although  the facts were undisputed, the jury  could  have
drawn  conflicting  inferences about  whether  this  conduct  was
within  the  scope of employment.13  In Fruit v.  Schreiner,  the
employee  was involved in an accident during an annual convention
hosted  by his employer at an out-of-town resort.14  The accident
occurred early in the morning when the employee was returning  to
the  resort  after failing to find the rest of  his  group  at  a
restaurant  and  bar.15   We  held that,  because  some  evidence
supported  a finding that the conduct arose out of the  employees
motivation to serve the employer by socializing to learn from out-
of-state attendees work experiences, a reasonable jury could draw
conflicting  conclusions about whether the  accident  took  place
within the scope of employment.16
          Here, material issues of fact exist regarding scope  of
employment  and  thus denial of the summary judgment  motion  was
appropriate.  Also, construing the facts in favor of Chilkoot, we
cannot  conclude that Locke was acting within the  scope  of  his
employment as a matter of law.  The facts are disputed  regarding
          whether Chilkoot authorized the ride on May 27, 2000.17  Murphy
testified that Locke did not tell him about the ride and that  he
never met the Ondruseks.  Locke, however, testified that he might
have  mentioned it to Murphy.  And Mary Anne testified  that  she
met Murphy right before the horseback ride.
          The  facts  are  also disputed as to whether  the  ride
benefitted Chilkoots business.18  Murphy testified that the  more
the guides rode the better it was for business because the guides
would gain experience.  Murphy also testified, however, that  his
biggest concern regarding the free rides was that the horses  had
enough rest.  And he also was concerned that the guides riding on
days  off had adequate experience.  He was less inclined to allow
inexperienced guides to ride when business was closed.   This  is
contrary  to  the  idea that free rides for  friends  and  family
always  benefit  Chilkoot by giving the guides  more  experience.
Additionally,  Locke testified that he thought riding  horses  on
days  off  did  not  benefit Chilkoot, but  harmed  the  business
because the horses did not get adequate rest.
          The  Ondruseks  argue that the trial court  should  not
have  considered  Lockes  opinion testimony  in  denying  summary
judgment.   Chilkoot  responds that  Lockes  testimony  contained
issues  of  material  fact and that Lockes opinion  testimony  is
equal  in weight to Murphys opinion testimony because on a motion
for  summary judgment the court does not weigh testimony or  make
credibility  determinations.  Additionally, Chilkoot argues  that
lay opinion testimony is admissible if it is rationally based  on
the perception of the witness and it aids in the determination of
a  factual issue. The Ondruseks reply that Lockes opinion  cannot
dispute  Murphys  opinion because Murphy, as the  sole  owner  of
Chilkoot,  is  the  only person who can make a factual  statement
about whether the business is benefitted.
          Evidence  of  an  employees motivation to  benefit  the
business  is a relevant consideration when determining the  scope
of  employment.   Whether  an employees  conduct  benefitted  the
employer is determined from the perspective of the employee,  not
the  desire of the employer.19  In Fruit, for instance, we relied
on  the  existence of evidence that [the employee] was  at  least
motivated in part by his desire to . . . improve his abilities as
a  salesman,  in  finding that material issues  of  fact  existed
regarding  whether  he  was  acting  within  the  scope  of   his
employment.20   In  VECO,  Inc. v. Rosebrock,  we  clarified  the
motivation to serve test stating that imposing liability under  a
scope  of employment theory absent at least a partial purpose  on
the part of the employee to serve the employer seems unjustified.21
          Here, the trial court did not err in considering Lockes
testimony  regarding  the  motivation  for  his  actions.   Locke
testified that he had no desire to benefit the business by taking
his  mother  out  on  a free ride.  In fact, Locke  thought  that
riding the horses on days Chilkoot was closed was harmful to  the
business.  This testimony was relevant to the issue whether Locke
was acting within the scope of his employment.
          For  the  above reasons, we conclude that the Ondruseks
motion  for  summary  judgment was properly  denied.   The  final
          judgment entered by the court based on the jury verdict is
therefore AFFIRMED.
     1    City of Kodiak v. Samaniego, 83 P.3d 1077, 1082 (Alaska

     2     Id.   Chilkoot does not argue that the denial  of  the
motion  for summary judgment may not be considered as a point  on
appeal given that this case was subsequently resolved by a  trial
on  the merits.  Such an argument would be favorably received  in
the federal courts, and in many state jurisdictions.  See Lama v.
Borras, 16 F.3d 473, 476 n.5 (1st Cir. 1994); Black v. J.I.  Case
Co.,  22 F.3d 568, 570-72 (5th Cir. 1994), cert. denied, 513 U.S.
1017  (1994); Watson v. Amedco Steel, Inc., 29 F.3d  274,  276-78
(7th  Cir. 1994); Johnson Intl Co. v. Jackson Natl Life Ins. Co.,
19  F.3d 431, 434 (8th Cir. 1994); Whalen v. Unit Rig, Inc.,  974
F.2d  1248, 1250-51 (10th Cir. 1992), cert. denied, 507 U.S.  973
(1993); Jarrett v. Epperly, 896 F.2d 1013, 1016 (6th Cir.  1990);
Holley  v.  Northrop, 835 F.2d 1375, 1377-78  (11th  Cir.  1988);
Locricchio v. Legal Serv. Corp., 833 F.2d 1352, 1358-59 (9th Cir.
1987); Glaros v. H.H. Robertson Co., 797 F.2d 1564, 1573-74 (Fed.
Cir.  1986),  cert.  dismissed, 479  U.S.  1072;  Fleitz  v.  Van
Westrienen, 560 P.2d 430, 432-33 (Ariz. App. 1977) (finding  that
a denial of summary judgment is not appealable, but recognizing a
narrow  exception if the denial was made on a point  of  law  and
prevented  the losing party from offering evidence or urging  the
point  at  the time of trial); Manuel v. Fort Collins Newspapers,
Inc.,  631 P.2d 1114, 1117 (Colo. 1981) (To hold otherwise  could
lead to the absurd result that one who has sustained his position
after  a  full  trial  and a more complete  presentation  of  the
evidence might nevertheless be reversed on appeal because he  had
failed to prove his case fully at the time of the hearing on  the
motion  for summary judgment.); Phillips v. Abel, 233 S.E.2d  384
(Ga. App. 1977) (finding the issue is moot after the evidence has
been  reviewed  in a trial on the merits); Evans v.  Jensen,  655
P.2d 454, 459 (Idaho App. 1982) (explaining that a final judgment
after trial should be tested upon the record made at trial not at
the  time  summary  judgment was denied); Kiesau  v.  Bantz,  686
N.W.2d  164, 174 (Iowa 2004) (explaining that after a full  trial
on  the  merits  the denial of summary judgment merges  with  the
trial); Skowronski v. Sachs, 818 N.E.2d 635, 638 n.5 (Mass.  App.
2004)  (explaining that no right to review exists when  case  has
proceeded  to trial on the merits, unless summary judgment  issue
was  on  a  different claim than was tried); Cannon v.  Day,  598
S.E.2d 207, 210 (N.C. App. 2004) (Improper denial of a motion for
summary  judgment  is  not reversible error  when  the  case  has
proceeded to trial and has been determined on the merits  by  the
trier  of  the facts . . . .); All-States Leasing Co. v.  Pacific
Empire Land Corp., 571 P.2d 192 (Or. App. 1977).  But cf. Lackner
v.  LaCroix, 602 P.2d 393, 396 (Cal. 1979); Wynn v. Winsen  Ltd.,
246  So. 2d 639, 640 (Fla. Dist. App.1971); Metro Mach. Corp.  v.
Mizenko,  419  S.E.2d 632, 634 (Va. 1992); Lane v.  Schacht,  393
A.2d 1015, 1018 (Pa. Super. 1978).

          This  court,  however,  has reviewed  summary  judgment
denials.   Diamond  v. Wagstaff, 873 P.2d 1286,  1289-90  (Alaska
1994);  Cameron  v.  Beard, 864 P.2d 538, 545-46  (Alaska  1993);
Western  Pioneer,  Inc. v. Harbor Enters., 818 P.2d  654  (Alaska
1991).   In  one case,  Western Pioneer, we reversed  a  judgment
entered  on  a  jury verdict on the basis that  summary  judgment
should  have  been  entered in favor of the party  that  lost  at
trial.   But  the issue involved was a question of law  that  had
been  improperly resolved at summary judgment and the  resolution
affected the trial.  Often summary judgment motions are denied on
the  basis  that there are genuine issues of material  fact.   At
least  as  to motions denied on that basis, this court will  give
serious consideration in the future to adoption of what seems  to
be the majority view concerning reviewability of summary judgment
denials, when the point is properly raised.

     3     McGee  Steel  Co.  v.  State ex rel.  McDonald  Indus.
Alaska, Inc., 723 P.2d 611, 614 (Alaska 1986).

     4    Samaniego, 83 P.3d at 1082.

     5     Restatement  (Second)  of Agency   229  (1958).   This
section states in pertinent part:

               (2)  In  determining whether or not  the
               conduct,  although  not  authorized,  is
               nevertheless so similar to or incidental
               to  the  conduct  authorized  as  to  be
               within  the  scope  of  employment,  the
               following  matters of  fact  are  to  be
               considered:         (a) whether  or  not
               the  act  is one commonly done  by  such
               servants;   (b)  the  time,  place   and
               purpose  of  the act; (c)  the  previous
               relations  between the  master  and  the
               servant;   (d) the extent to  which  the
               business  of  the master is  apportioned
               between   different   servants;      (e)
               whether  or  not the act is outside  the
               enterprise of the master or,  if  within
               the  enterprise, has not been  entrusted
               to  any servant;     (f) whether or  not
               the  master  has reason to  expect  that
               such  an  act will be done;     (g)  the
               similarity in quality of the act done to
               the  act authorized; (h) whether or  not
               the instrumentality by which the harm is
               done has been furnished by the master to
               the   servant;    (i)  the   extent   of
               departure  from  the  normal  method  of
               accomplishing an authorized result;  and
               (j)  whether or not the act is seriously
     6    Restatement  228(2).

     7    Restatement  229(2)(i).

     8    See id.  229(2)(a).

     9     Doe  v.  Samaritan Counseling Ctr., 791 P.2d 344,  346
(Alaska 1990).

     10     Taranto  v.  North Slope Borough, 909 P.2d  354,  358
(Alaska  1996) (citing Luth v. Rogers & Babler Constr.  Co.,  507
P.2d 761, 764-65 n.14 (Alaska 1973)).

     11     Taranto, 909 P.2d at 359 ([S]cope of employment is  a
fact-specific issue requiring case-by-case determination.); Luth,
507  P.2d at 764 ([S]cope of employment questions are jury issues
where   conflicting  inferences  can  be  drawn  from  undisputed
facts.);  Fruit v. Schreiner, 502 P.2d 133, 140-41 (Alaska  1972)
(noting  [a]pplicability  of  respondeat  superior  will   depend
primarily  on  the  findings of fact in each case  and  that  the
factual determination generally is left to the jury).

     12    507 P.2d at 762.

     13    Id. at 765.

     14    502 P.2d at 135.

     15    Id.

     16    Id. at 142.

     17     Whether or not Chilkoot authorized the conduct  is  a
factor to be considered under Restatement  228(1)(b).

     18    See Restatement  228(1)(c).

     19     See  VECO, Inc. v. Rosebrock, 970 P.2d 906, 924  n.36
(Alaska 1999); Doe, 791 P.2d at 346; Fruit, 502 P.2d at 142.

     20    502 P.2d at 142 (emphasis added).

     21    970 P.2d at 924 n.36.