Newman v. White Water

2008 UT 79
This opinion is subject to revision before final
publication in the Pacific Reporter.
IN THE SUPREME COURT OF THE STATE OF UTAH
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Kenneth D. Newman, 	No. 20070859
Plaintiff and Respondent,
v.
White Water Whirlpool and 	F I L E D
Bradley J. Sundquist,
Defendants and Petitioner. 	November 14, 2008
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Third District, Salt Lake
The Honorable Leslie A. Lewis
No. 050911477
Attorneys: 	Paul C. Farr, Sara N. Becker, Salt Lake City, for
respondent
Robert W. Thompson, Salt Lake City, for petitioner
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On Certiorari to the Utah Court of Appeals
WILKINS, Justice:
¶1 	We have been asked to determine whether a divided panel
of the court of appeals erred in reversing the trial court’s
grant of summary judgment to White Water Whirlpool. 	We affirm.
BACKGROUND
¶2 	In 2004, Bradley Sundquist was working as an installer
for White Water Whirlpool (White Water), a company that
manufactures, sells, and installs a variety of marble products,
countertops, and tile. 	As part of his employment, Sundquist was
required to travel from his home in Salt Lake County to White
Water’s offices in Utah County each day. 	There he would pick up
materials and supplies and obtain a list of daily job assignments
before reporting to various job sites. 	Sundquist’s job
responsibilities also included transporting White Water’s
products to the job sites, as well as returning any unused
materials to White Water’s warehouse. 	Because many of the jobs

1 Newman subsequently settled with Sundquist’s insurance
provider and Sundquist is not a party to this appeal.
No. 20070859 	2
were in or around Salt Lake County, where Sundquist lived, and
because he usually worked late in the day, Sundquist would often
return home with the unused materials after work and take them
with him the next morning when he reported for work at White
Water’s offices in Utah County.
¶3 	At approximately five o’clock in the morning on June
29, 2004, Kenneth Newman was driving southbound on Interstate 15.
Sundquist, who was on his way to White Water’s offices in a truck
and trailer he personally owned, collided with Newman. 1 	Both
Newman and his passenger were thrown from the car, and Newman’s
passenger died as a result. 	Newman suffered extensive injuries,
including broken bones and a severe traumatic brain injury.
¶4 	Newman subsequently filed suit, alleging that Sundquist
was in the course and scope of his employment at the time of the
accident and that White Water should be vicariously liable for
his injuries. 	The parties filed cross-motions for summary
judgment. 	At the hearing on the cross-motions for summary
judgment, counsel for both parties represented to the trial court
that there were no disputed issues of fact and that the trial
court could rule as a matter of law. 	The trial court ultimately
determined that, as a matter of law, Sundquist was not acting
within the course and scope of his employment at the time of the
accident. 	Accordingly, the trial court concluded, Sundquist fell
squarely within the ambit of the coming and going rule. 	Relying
on Ahlstrom v. Salt Lake City Corp., 2003 UT 4, 73 P.3d 315, the
trial court reasoned that to hold otherwise “would render the
coming and going rule obsolete” and would also unreasonably
expand liability for employers. 	Accordingly, the trial court
granted White Water’s motion for partial summary judgment and
denied Newman’s motion for the same.
¶5 	Newman appealed. 	A divided panel of the court of
appeals reversed and held that summary judgment was improper
because “[r]easonable minds might differ as to whether Sundquist
was acting in the course and scope of his employment at the time
of the accident, and thus the question presents a genuine issue
of material fact.” 	Newman v. White Water Whirlpool, 2007 UT App
303, ¶ 7, 169 P.3d 774. 	White Water appealed, and this court
granted certiorari.
STANDARD OF REVIEW
¶6 	This court reviews the court of appeals’ decisions for

2 The parties also disagree about whether, under the invited
error doctrine, Newman should be precluded from arguing on appeal
that whether Sundquist was within the scope of his employment was
a fact question that should have been sent to the jury. 	The
applicability of the invited error doctrine is discussed in more
detail in Section II.
3 	No. 20070859
correctness. 	See Pratt v. Nelson, 2007 UT 41, ¶ 12, 164 P.3d
366.
ANALYSIS
¶7 	White Water and Newman ultimately disagree about
whether, at the time of the accident, Sundquist was in the course
and scope of his employment or whether he was merely commuting to
work, thus falling within the purview of the coming and going
rule. 2 	More specifically, however, the parties disagree about
whether the court of appeals erred when it determined that a
genuine issue of material fact existed--thus reversing the trial
court’s grant of summary judgment--because reasonable minds could
differ about whether Sundquist was acting in the course and scope
of his employment at the time of the accident. 	We conclude that
reasonable minds could differ and therefore affirm.
I. 	COURSE AND SCOPE OF EMPLOYMENT
¶8 	Under the doctrine of respondeat superior, an employer
may be held vicariously liable for the acts of its employee if
the employee is in the course and scope of his employment at the
time of the act giving rise to the injury. 	See Christensen v.
Swenson, 874 P.2d 125, 127 (Utah 1994). 	As an exception to the
general rule, however, “an employee is not acting within the
course and scope of his employment when he is traveling in his
own automobile to and from work.” 	Whitehead v. Variable Annuity
Life Ins. Co., 801 P.2d 934, 935 (Utah 1989). 	This exception is
known as the “coming and going rule,” and the public policy
underpinnings justifying the rule are clear: it is inherently
unfair to penalize an employer by “impos[ing] unlimited liability
. . . for [the] conduct of its employees over which it has no
control and from which it derives no benefit.” 	Id. at 937.
¶9 	To determine whether an employee is in the course and
scope of his employment, Utah courts apply a three-part test.
First, an employee’s conduct must be of the
general kind the employee is employed to
perform. . . . 	Second, the employee’s
conduct must occur within the hours of the
employee’s work and the ordinary spatial

No. 20070859 	4
boundaries of the employment. 	Third, the
employee’s conduct must be motivated, at
least in part, by the purpose of serving the
employer’s interest.
Birkner v. Salt Lake County, 771 P.2d 1053, 1056-57 (Utah 1989)
(internal citations omitted).
¶10 	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.” 	Ahlstrom v. Salt Lake City Corp., 2003
UT 4, ¶ 7 n.1, 73 P.3d 315. 	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.’” 	Clover v. Snowbird Ski
Resort, 808 P.2d 1037, 1040 (Utah 1991) (quoting Carter v.
Bessey, 93 P.2d 490, 493 (Utah 1939)) (emphasis added) (second
alteration in original). 	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.”
Christensen v. Swenson, 874 P.2d 125, 127 (Utah 1994).
¶11 	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.
¶12 	In this case, the trial court determined that
reasonable minds could not disagree that Sundquist was commuting
at the time of the accident and granted summary judgment in favor
of White Water. 	In reversing summary judgment, the court of
appeals concluded that reasonable minds in fact could differ as
to whether Sundquist was in the scope of his employment or
whether he was commuting, thus creating a material issue of fact
for the jury to decide. 	We agree with the court of appeals.
Sundquist’s regular job responsibilities included hauling
materials to various job sites, installing the materials, and
then returning the remainder of the materials to White Water’s

5 	No. 20070859
warehouse. 	Reasonable minds, therefore, could differ as to
whether Sundquist was actually returning materials to White
Water--an act that would bring him within the course of his
employment--or whether he was simply commuting to work, or
perhaps both. 	Accordingly, an issue of material fact remained,
and it should have been submitted to a jury for determination of
whether Sundquist was “involved wholly or partly in the
performance of his master’s business or within the scope of his
employment.” 	Carter, 93 P.2d at 493.
II. 	INVITED ERROR DOCTRINE
¶13 	White Water also argues that the invited error doctrine
precludes Newman’s claim on appeal that the scope of employment
question should have gone to the jury because counsel
affirmatively represented to the trial court that the material
facts were undisputed and urged it to rule as a matter of law.
We disagree.
¶14 	The invited error doctrine prohibits parties from
“taking advantage of an error committed at trial when that party
led the trial court into committing the error.” 	Tschaggeny v.
Milbank Ins. Co., 2007 UT 37, ¶ 12, 163 P.3d 615 (internal
quotation marks omitted). 	“Affirmative representations that a
party has no objection to the proceedings fall within the scope
of the invited error doctrine because such representations
reassure the trial court and encourage it to proceed without
further consideration of the issues.” 	Id. (internal quotation
marks omitted).
¶15 	It is true that in this case, counsel for both parties
affirmatively told the trial court that no material factual
issues existed and encouraged it to rule as a matter of law. 	We
note, however, that simply because opposing parties have both
moved for summary judgment does not mean that a trial court is
required to grant it to one side or the other. 	See Diamond T
Utah, Inc. v. Travelers Indem. Co., 441 P.2d 705, 706 (Utah
1968). 	Instead, “[t]he trial court is obligated to ascertain
whether either party’s request for judgment as a matter of law
should be granted.” 	Newman v. White Water Whirlpool, 2007 UT App
303, ¶ 3, 169 P.3d 774. 	In other words, simply because a party
claims there are no disputed factual issues does not relieve the
trial court of its obligation to determine whether the issue is
actually proper for summary judgment. 	See id. 	In fact, “[t]he
[trial] court must recognize that a party’s claim that there are
no issues of fact relates to that party’s theory of the case and
should not be construed as support for the adversary’s argument
or motion.” 	Id.

No. 20070859 	6
¶16 	The parties in this case agreed that the subsidiary and
historical facts were not in question. 	They did not, however,
agree about the ultimate factual determination--whether Sundquist
was within the scope and course of his employment. 	As the court
of appeals aptly stated, “[d]espite what the parties may have
claimed in arguing their respective motions for summary judgment,
the parties have not agreed on an answer to the central factual
questions in this case.” 	Id. ¶ 4 n.1. 	Accordingly, the invited
error doctrine does not apply.
CONCLUSION
¶17 	We conclude that the court of appeals correctly
reversed the trial court’s grant of summary judgment to White
Water because reasonable minds could differ about whether
Sundquist was in the course and scope of his employment at the
time of the accident. 	We also conclude that the invited error
doctrine is inapplicable. 	We therefore affirm.
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¶18 	Chief Justice Durham, Justice Parrish, Justice Nehring,
and Judge Baldwin concur in Justice Wilkins’ opinion.
¶19 	Having disqualified himself, Associate Chief Justice
Durrant does not participate herein; District Judge Parley R.
Baldwin sat.