CourtListener 4494589•Carol Teebo v. City of Shenandoah, Iowa
Carol Teebo v. City of Shenandoah, Iowa
CourtListener 4494589Iowactapp02.05.2018
Gesamter Gesetzestext
IN THE COURT OF APPEALS OF IOWA
No. 17-1683
Filed May 2, 2018
CAROL TEEBO,
Plaintiff-Appellee,
vs.
ETHAN JOHNSON,
Defendant,
and
CITY OF SHENANDOAH, IOWA,
Defendant-Appellant.
________________________________________________________________
Appeal from the Iowa District Court for Page County, James M. Richardson,
Judge.
The city of Shenandoah challenges the denial of its motion for summary
judgment seeking to dismiss the city from a negligence suit brought by an injured
pedestrian struck by a police officer driving to work in his private vehicle.
REVERSED AND REMANDED WITH INSTRUCTIONS.
Gregory G. Barntsen of Smith, Peterson Law Firm, Council Bluffs, for
appellant.
Jon H. Johnson of Johnson Law, P.L.C., Sidney, for appellee.
Considered by Vaitheswaran, P.J., and Potterfield and Tabor, JJ.
2
TABOR, Judge.
Translated from Latin, respondeat superior means “let the principal
answer.” Montanick v. McMillin, 280 N.W. 608, 613 (Iowa 1938). The principal in
this case is the city of Shenandoah. Injured pedestrian, Carol Teebo, argues the
city should answer for the actions of its police officer, Ethan Johnson, who struck
her while driving to work in his personal vehicle. The district court agreed with
Teebo and denied the city’s motion for summary judgment. In this interlocutory
appeal, the city contends the district court misinterpreted or ignored case law
interpreting the doctrine of respondeat superior. Because Johnson was not acting
within the scope of his employment at the time of the collision, we reverse and
remand for the dismissal of Teebo’s claims against the city.
I. Facts and Prior Proceedings
Shenandoah patrol officer Ethan Johnson was scheduled to clock in for his
eight-hour shift at 11:00 p.m. on Halloween night 2015. Apparently running late,
Johnson—clad in his uniform—was commuting to work in his GMC pickup at 11:03
p.m. when he turned left and struck Teebo, who was crossing Sycamore Street,
just half a block from the police station. After the accident, Johnson was distraught
and received counseling from the police chaplain at the station. Another patrol
officer took Johnson’s shift that night. The police chief placed Johnson on paid
administrative leave for five days. The Iowa State Patrol interviewed Johnson
about the accident.
In August 2016, Teebo filed a negligence suit against Johnson, alleging he
failed to yield to a pedestrian and failed to keep a proper lookout. According to
Teebo, the collision caused her serious harm, “including a severe head injury,
3
causing constant pain, discomfort, and restriction of movement in the past and for
an indefinite time for the future.” She amended her petition in May 2017 to add the
city of Shenandoah as a defendant. The amended petition alleged the city was
“responsible for the negligent acts of its employees while on duty for the
Shenandoah Police Department.” The amended petition further asserted that at
the time of the collision Johnson was “on duty and in full uniform.”
The city filed an answer claiming Teebo “failed to allege facts which would
indicate the City of Shenandoah is responsible for the alleged negligent acts of
Ethan Johnson.” In August 2017, the city filed a motion for summary judgment
seeking to dismiss all claims against it. The motion alleged Teebo “took Ethan
Johnson’s deposition on April 5, 2017, and in that deposition he indicated that he
was on his way to work at the time the accident happened driving his own vehicle.”
In support of its motion, the city submitted a statement of material facts, asserting
as follows:
“Ethan Johnson was on his way to work in his own vehicle when
his vehicle collided with the Plaintiff.”
“Ethan Johnson had not checked into work for the Shenandoah
Police Department at the time of the accident.”
“He did not report for work with the Shenandoah Police
Department after the accident but was given the night off and
several days thereafter.”
“Police Chief Josh Gray . . . confirms Ethan Johnson had not
reported for work and did not report for work as scheduled on
October 31, 2015.”
The city attached the deposition of Johnson and the affidavit of Gray to its
statement of material facts.
4
Teebo filed her own statement of material facts, asserting:
“Ethan Johnson, an employee of the Shenandoah Police
Department was driving on his way to work in uniform when he
negligently struck Carol Teebo at an intersection one half block
from the police station.”
“Ethan Johnson’s shift at the police station began at 11:00 p.m.
October 31, 2015.”
“The collision occurred at 11:03 p.m. October 31, 2015.”
“Officer Johnson was paid for his 8 hour shift from 11:00 p.m.
October 31, 2015 to 7:00 a.m. November 1, 2015.”
The city then submitted an affidavit from Kris Grebert, the former chief of
police, who stated:
At the time of the accident [Johnson] had not checked into work
and therefore was not on duty . . . . An officer is not on duty unless
they punch the time card and check in for work. An officer at the
Shenandoah Police Department is not on duty 24 hours a day or
on-call because the city would have to pay them to be on duty or
on-call and the city does not have the resources.
After holding a hearing, the district court denied the city’s motion for
summary judgment in a single-sentence order: “Issue remains for finder of fact if
Defendant Johnson was on duty as police officer at time of accident.” The city filed
a motion to enlarge, reconsider, or amend under Iowa Rule of Civil Procedure
1.904(2), and it attached an affidavit from Johnson. The district court overruled
the city’s motion without any analysis. The city successfully sought interlocutory
review.
II. Scope and Standard of Review
We review the grant or denial of summary judgment for correction of legal
error. Legg v. W. Bank, 873 N.W.2d 763, 768 (Iowa 2016). “We examine the
record in the light most favorable to the nonmoving party,” here Teebo. See United
5
Suppliers, Inc. v. Hanson, 876 N.W.2d 765, 772 (Iowa 2016) (citing Merriam v.
Farm Bureau Ins., 793 N.W.2d 520, 522 (Iowa 2011)).
Summary judgment is appropriate
if the pleadings, depositions, answers to interrogatories, and
admissions on file, together with the affidavits, if any, show 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.
Iowa R. Civ. P. 1.981(3); accord Rucker v. Humboldt Cmty. Sch. Dist., 737
N.W.2d 292, 293 (Iowa 2007).
As a preliminary matter, Teebo argues Johnson’s affidavit was not
presented at the summary judgment hearing and should not be considered on
appeal. See Iowa R. Civ. P. 1.981(3), (5). The affidavit was submitted with the
city’s 1.904(2) motion. The city responds that the affidavit reiterates facts already
presented with the summary-judgment motion, including Johnson’s deposition
taken by Teebo. We agree submission of the affidavit was untimely. See McKee
v. Isle of Capri Casinos, Inc., 864 N.W.2d 518, 525 (Iowa 2015) (“Generally
speaking, a party cannot use a rule 1.904(2) motion to introduce new evidence.”).
We do not rely on Johnson’s affidavit in this appeal.
III. Analysis
“[U]nder the doctrine of respondeat superior, an employer is liable for the
negligence of an employee committed while the employee is acting within the
scope of his or her employment.” Godar v. Edwards, 588 N.W.2d 701, 705 (Iowa
1999) (citing Jones v. Blair, 387 N.W.2d 349, 355 (Iowa 1986)). A claim of
vicarious liability under the doctrine requires proof of two elements: (1) the
existence of an employer/employee relationship and (2) an injury that occurred
6
within the scope of that employment. Id. Here, the employment relationship is not
in dispute. The point of disagreement is whether Johnson was acting within the
scope of his employment when he struck Teebo with his car.
Generally scope-of-employment questions are for the jury. Id. at 706. But
“depending on the surrounding facts and circumstances, the question as to
whether the act which departs markedly from the employer’s business is still within
the scope of employment may well be for the court.” Id. (citing Sandman v. Hagan,
154 N.W.2d 113, 118 (Iowa 1967) (deciding question whether employee was
acting within scope of employment was properly for court, not jury)).
For an employee’s conduct to fall within the scope of employment it must
be “of the same general nature” as acts authorized by the employer or incidental
to acts authorized by the employer. Id. at 705 (citation omitted).1 Stated another
way, “[a]n employee acts within the scope of his employment when the employer
has the right to direct the means and manner of doing work, and has the right of
1
The Godar court embraced section 229(2) of the Restatement (Second) of Agency
(1957), which lists the following factors to be considered in determining whether conduct
of an employee may be characterized as occurring within the scope of the employee’s
employment:
(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 criminal.
Id. at 706 (quoting Restatement (Second) of Agency § 229(2)(a)–(j) (Am. Law Inst. 1957)).
7
control over the employee.” Jones, 387 N.W.2d at 355 (citing Volkswagen Iowa
City, Inc. v. Scott’s Inc., 165 N.W.2d 789, 793 (Iowa 1969)). An employee
generally is not acting within the scope of employment when commuting to and
from work. Id. Although commuting is “work-motivated, the element of control is
lacking.” Id. Jones held that an employee’s receipt of travel reimbursement,
without more, did not establish a jury question as to whether the employee was
under the control of his employer when he caused an accident while returning
home after completing a repair job. Id. at 355–56.
The city rests its appeal on Jones. Urging the appropriateness of summary
judgment, the city contends it “had no right to control the means or route of
Johnson’s travel, his speed, or that he had to use his own vehicle to go and come
from work.” The city emphasizes Johnson had not “clocked in” to his work shift
and was not performing any act that directly related to his job as a police officer at
the time of the accident.
Teebo argues Jones can be distinguished because the employee in that
case was a repairman who was not authorized to take any actions for his employer
at the time of the accident. By contrast, Johnson—as a peace officer—was in
uniform and had authority to make an arrest on behalf of the city at any time. See
generally Iowa Code §§ 804.7, 804.16 (2015). On the issue of time and space,
Teebo notes the collision occurred three minutes after the designated start for
Teebo’s shift and points out Johnson’s regular assignment was to patrol the streets
of Shenandoah where the accident occurred. Teebo also finds significance in the
fact the department paid Johnson for his missed shift. Teebo further contends the
8
Restatement (Third) of Agency section 7.07 (2006)2 has expanded the scope of
employment for professionals while encompassing the criteria from section 229 of
the Restatement (Second) of Agency; Teebo adds, “Law enforcement officers are
considered professionals.”
Under section 7.07(2),
An employee acts within the scope of employment when
performing work assigned by the employer or engaging in a course
of conduct subject to the employer’s control. An employee’s act is
not within the scope of employment when it occurs within an
independent course of conduct not intended by the employee to
serve any purpose of the employer.
Restatement (Third) of Agency § 7.07(2) (Am. Law Inst. 2006).
Comment (b) to section 7.07 describes the expansion flagged in Teebo’s
argument:
The formulation of the scope-of-employment doctrine in
subsection (2) differs from its counterparts in Restatement Second,
Agency §§ 228 and 229 because it is phrased in more general terms.
Under Restatement Second, Agency § 228(1)(b), conduct falls within
the scope of employment when it “occurs substantially within the
authorized time and space limits.” This formulation does not
naturally encompass the working circumstances of many managerial
and professional employees and others whose work is not so readily
cabined by temporal or spatial limitations. Many employees in
contemporary workforces interact on an employer’s behalf with third
parties although the employee is neither situated on the employer’s
premises nor continuously or exclusively engaged in performing
assigned work.
Id. § 7.07 cmt. b.
2
Our supreme court cited the Restatement (Third) of Agency, section 7.03 with approval
in Haskenhoff v. Homeland Energy Sols., LLC, 897 N.W.2d 553, 575 (Iowa 2017) (noting
the section “provides that a principal is liable for its own negligence in ‘selecting,
supervising, or otherwise controlling the agent’ in addition to any vicarious liability that may
be imposed via the agent’s actions”).
9
Contrary to Teebo’s suggestion, this new formulation does not automatically
place Officer Johnson’s negligent acts while commuting within the scope of his
employment. Officer Johnson was not interacting with Teebo on behalf of the
police department when he struck her with his personal vehicle. Comment (e)
discusses peregrinations: “In general, travel required to perform work, such as
travel from an employer’s office to a job site or from one job site to another, is
within the scope of an employee’s employment while traveling to and from work is
not.” Id. § 7.07 cmt. e (emphasis added). Applying Jones and the principles from
either Restatement, we conclude Johnson was not acting within the scope of his
employment at the time of the accident.
Johnson’s status as a peace officer does not change the scope-of-
employment calculus under the specific undisputed facts presented to the district
court. Johnson’s time card and the affidavits of current police chief Gray and
former police chief Grebert establish Johnson was not on duty at the time of the
accident because he did not clock into his shift on October 31, 2015. According to
Chief Grebert’s affidavit, Shenandoah police officers are not on duty twenty-four
hours a day, but only when they punch in with their time cards. The fact Johnson
received pay for his administrative leave after the fact does not change the nature
of his acts while commuting to work. Johnson may have had authority to act as a
peace officer while off duty. See Long v. Lauffer, No. 09-1916, 2011 WL 222530,
at *7 (Iowa Ct. App. Jan. 20, 2011) (discussing lack of definitive authority whether
off-duty officer can discharge his official duties). But he was not being called upon
to do so at the time of the accident. Off-duty police officers do not act as
government agents in every situation. See State v. Brown, 890 N.W.2d 315, 323
10
(Iowa 2017). His commute was not part of his service to the police department.
Johnson was driving a pickup truck he owned when he struck Teebo. His employer
had no control over his route or his method of driving. See Logan v. Phillips, 891
S.W.2d 542, 544 (Mo. Ct. App. 1995) (holding under doctrine of respondeat
superior that city was not liable for wrongful-death action against officer driving
from his residence to court to testify on behalf of city).
Under these circumstances, Johnson was not acting within the scope of his
employment at the time of the collision and the city was not liable to Teebo under
the doctrine of respondeat superior. Accordingly, we reverse the district court’s
denial of the city’s motion for summary judgment and remand the case with
instructions to dismiss the city as a defendant.
REVERSED AND REMANDED WITH INSTRUCTIONS.
Setzen Sie Ihre Recherche in ChatGPT oder Claude fort
Verbinden Sie Omnilex, um den Rechtskorpus über Ihren KI-Assistenten zu durchsuchen.