GURICH, J.
¶ 1 On August 24, 2006, William Garris III and David Billups flew from Raleigh, North Carolina, to Joplin, Missouri, on a business trip for their employer, Carolina Forge Company, L.L.C. Garris was the quality manager for Carolina Forge, and Billups was a customer service representative. The trip was scheduled to take place from August 24, 2006, to August 27, 2006, in Joplin, Missouri. Normally, William Casella, the corporate representative and plant manager for Carolina Forge, accompanied Garris to Joplin to call on customer F.A.G. Bearings. But Mr. Casella had another commitment, so Billups accompanied Garris on this particular trip. The primary purpose of the trip was to participate in a golf outing at the invitation of F.A.G. Bearings.
¶ 2 Carolina Forge paid for Garris and Billups' airline tickets and rental car in advance of the trip.
¶ 3 Garris and Billups arrived in Joplin on the evening of August 24, 2006, and checked into their hotel. On the morning of August 25, 2006, another employee of Carolina Forge met Garris and Billups at a Bob Evans Restaurant in Joplin, which was adjacent to their hotel, before visiting the F.A.G. Bearings headquarters. Next, Garris and Billups arrived at the customer's facility, where they took a tour and then delivered a presentation to company representatives.
¶ 4 Following the presentation, Garris and Billups toured another portion of the facility. Garris and Billups then took three F.A.G. Bearings representatives to lunch at the Rib Crib in Joplin. After lunch, Garris and Billups went back to their hotel rooms to change clothes and then met F.A.G. Bearings representatives for golf at the Briarbrook Golf Course just outside Joplin.
¶ 5 After playing golf, Garris and Billups went back to their hotel, stopping on the way to purchase toiletries and other necessities. Garris and Billups then had dinner at Timberline Steakhouse in Joplin. No F.A.G. Bearings representatives joined Garris and Billups for dinner at the Timberline Steakhouse. After dinner, Garris and Billups went
¶ 6 According to Garris' affidavit, upon arriving at the casino, Garris and Billups went "separate ways, rarely speaking with one another."
¶ 7 Billups and Garris intended to return to Joplin traveling on Interstate Highway 44. However, while leaving Miami, Billups missed the eastbound ramp which would have taken them back to Joplin and instead drove west on Interstate Highway 44 toward Tulsa. Billups turned around in a lane barricade opening.
¶ 8 Plaintiffs filed suit in the District Court of Ottawa County against Carolina Forge, alleging negligence under the doctrines of respondeat superior and negligent entrustment.
¶ 9 Plaintiffs appealed the trial court's Journal Entry granting summary judgment to Carolina Forge, filing a Petition in Error on February 18, 2011. This Court retained the case. We find reasonable minds could differ on the questions of whether employees of Carolina Forge were in the course and scope of their employment at the time of the accident and whether Carolina Forge negligently entrusted the rental vehicle to its employees.
¶ 10 An order sustaining summary judgment in favor of a litigant presents solely
¶ 11 When examining an order sustaining summary judgment, this Court must determine whether the record reveals disputed material facts. Cranford v. Bartlett, 2001 OK 47, ¶ 3, 25 P.3d 918, 920. Even if basic facts are undisputed, motions for summary judgment should be denied, if from the evidence, reasonable persons might reach different inferences or conclusions from the undisputed facts. Phelps v. Hotel Mgmt. Inc., 1996 OK 114, ¶¶ 6-7, 925 P.2d 891, 893. All facts and inferences must be viewed in a light most favorable to the party opposing summary adjudication. Estate of Crowell v. Bd. of Cnty. Comm'rs of Cnty. of Cleveland, 2010 OK 5, ¶ 22, 237 P.3d 134, 142.
¶ 12 Negligent entrustment of an automobile occurs when the automobile is supplied, directly or through a third person, for the use of another whom the supplier knows, or should know, because of youth, inexperience, or otherwise, is likely to use it in a manner involving unreasonable risk of bodily harm to others, with liability for the harm caused thereby. Green v. Harris, 2003 OK 55, n. 5, 70 P.3d 866, 868 n. 5. See also Shoemake v. Stich, 1975 OK 55, ¶ 13, 534 P.2d 667, 669-70. This Court has long held that intoxication and the "propensity for becoming intoxicated" can result in liability for the supplier of the automobile if the supplier knows or has reason to know of such intoxication or propensity for becoming intoxicated.
¶ 13 The record indicates Carolina Forge reserved and paid for the rental car for Garris and Billups for this particular business trip to Joplin.
¶ 14 Although Carolina Forge reimbursed employees for all money spent on alcoholic beverages, Carolina Forge maintained no written corporate procedure, guideline, policy, or protocol regarding drinking and driving rental vehicles paid for by Carolina Forge.
¶ 15 Carolina Forge argues it cannot be liable for negligent entrustment because it did not have possession or control over the rental car at the time of the accident. "The rationale underlying imposition of negligent entrustment liability on suppliers of chattels is that one has a duty not to supply a chattel to another who is likely to misuse it in a manner causing unreasonable risk of physical harm to the entrustee or others." Casebolt v. Cowan, 829 P.2d 352, 360 (Colo.1992) (emphasis added) (citing Restatement (Second) of Torts § 390). If Carolina Forge, at the time it paid for the rental car for its employees, knew or should have known its employees were likely to drive the rental car while intoxicated, Carolina Forge had a duty to take reasonable actions to prevent such risks. Control at the time the automobile is supplied—the initial moment of entrustment—determines a supplier's negligence. Id.
¶ 16 In the same vein, Carolina Forge argues it did not entrust the vehicle to Billups
¶ 17 Finally, Carolina Forge argues it cannot be held liable for negligent entrustment unless the Plaintiffs can first prove Garris and Billups were acting within the course and scope of their employment at the time of the accident. Liability for negligent entrustment arises from the act of entrustment, not the relationship of the parties. Casebolt, 829 P.2d at 360 ("Liability for the negligence of the incompetent driver to whom an automobile is entrusted does not arise out of the relationship of the parties, but from the act of entrustment of the motor vehicle."). As such, when an employer provides an employee with a vehicle, whether the negligent act was done during the course and scope of an employee's employment is not relevant to the negligent entrustment analysis.
¶ 18 "To hold an employer responsible for the tort of an employee, the tortious act must be committed in the course of the employment and within the scope of the employee's authority." Baker v. Saint Francis Hosp., 2005 OK 36, ¶ 10, 126 P.3d 602, 605. "Under the theory of respondeat superior, one acts within the scope of employment if engaged in work assigned, or if doing that which is proper, necessary and usual to accomplish the work assigned, or doing that which is customary within the particular trade or business." Tuffy's, Inc. v. City of Okla. City, 2009 OK 4, ¶ 7, 212 P.3d 1158, 1163. More specifically, in determining whether an employee was in the course and scope of employment at the time of an automobile accident, this Court has looked to whether, taking into consideration the purpose of the mission and the distance traveled, it could be said that the employee was stepping aside in some marked or unusual manner for some purpose wholly disconnected with his employment.
¶ 19 In some cases, the deviation may be so marked or slight that, as a matter of law, only one reasonable conclusion can be drawn from the facts, and the issue of whether an employee was within the scope of employment
¶ 20 In Oil Daily Inc. v. Faulkner, 282 F.2d 14 (10th Cir.1960), a case decided under Oklahoma law by the Tenth Circuit, Oil Daily's employee was an advertising manager in 19 southwestern states. Id. at 15. His duties required him to travel throughout the southwest soliciting business for his employer and acting as a public relations representative. Id. He was free to arrange his trips and to travel by any means he saw fit. Id. Oil Daily paid all expenses, and he was allowed mileage for the use of his personal automobile. Id. On one particular trip, he left his headquarters in Dallas, in his own automobile, for a business trip to Kansas City, via Tulsa. Id. He transacted company business in Tulsa and proceeded on to Kansas City by plane. Id. He returned to Tulsa in the afternoon and left that evening in his automobile for the return trip to Dallas. Id. He arrived in Durant, Oklahoma, late in the evening and stopped at a roadside café and private club, where he remained for some time. Id. He then proceeded to Denison, Texas, where he stopped for a meal. Id. Too tired to continue, he returned to Durant, which was approximately 21 miles from Denison, to spend the remainder of the night with a friend. Id. He was unable to locate the friend, had difficulty with his automobile, and decided to sleep in his car until morning. Id. He then resumed his trip to Dallas; however, just prior to reaching Denison, he fell asleep and his automobile collided with the plaintiff's vehicle. Id.
¶ 21 The Eastern District of Oklahoma found the employer, Oil Daily, liable under the respondeat superior doctrine. Id. at 14. Oil Daily appealed, and the Tenth Circuit affirmed, finding that whether, under Oklahoma law, the employee's actions constituted a departure wholly disconnected from employment relieving the employer from liability for negligent operation of the automobile by its advertising manager was a question of fact for the district court. Id. The Tenth Circuit could not say as a matter of law "that such trip was a departure wholly disconnected from the company's business which would relieve it from its liability as an employer," relying in part on the fact that Oil Daily gave its employee discretion to "exercise his own judgment in traveling, in time spent on the road, in selecting hotels or other living quarters, and when he should return to his headquarter." Id. at 16.
¶ 22 In the present case, the record indicates the Buffalo Run Casino was about 30 miles from Garris and Billups' hotel.
¶ 24 In fact, Carolina Forge reimbursed employees for all expenses incurred on business trips. Both of Carolina Forge's corporate representatives testified they could not ever recall refusing to reimburse an employee for an expense documented with receipts and claimed on the employee's expense report.
¶ 25 As in Oil Daily, Carolina Forge gave its employees unrestricted discretion on business trips to decide how to spend their time. Carolina Forge provided blanket reimbursements for food, alcohol, and gas on past business trips regardless of whether employees were entertaining customers or were on personal time. A reasonable person could find these facts relevant in determining whether Garris and Billups' trip to the casino was authorized by Carolina Forge and whether the trip to the casino was included within the course and scope of their employment with Carolina Forge. The record does not support a determination as a matter of law that the men were not in the course and scope of their employment when the accident occurred. The issue is a question of fact for the jury. Summary judgment was improper.
¶ 26 The record indicates Plaintiffs requested additional discovery from Carolina Forge after the depositions of Mr. Casella and Ms. Nixon. At the time Plaintiffs' response to summary judgment was filed, Carolina Forge had not yet furnished the discovery responses. In their brief, Plaintiffs stated to the trial court: "Plaintiffs therefore respectfully request that Carolina Forge's motion be denied at this time so that Plaintiffs have the opportunity to at least obtain the discovery they have recently requested to show the existence of disputed material facts regarding both the scope of Defendants' agency, as well as the negligent entrustment and supervision claims at issue."
¶ 27 Plaintiffs learned during the deposition of Defendant's corporate representatives that Garris made prior trips to Joplin, Missouri, for the same golf outing as he and Billups attended during this particular trip. Based on this newly acquired information, they sent a Request for Production to counsel for Carolina Forge requesting "business expense reports and receipts for William Garris, III for all trips he made to Joplin, Missouri prior to the trip he was on at the time of the accident."
¶ 28 Additionally, Plaintiffs argue the trial court should have allowed additional discovery before granting summary judgment because neither Garris nor a representative of Billups' estate had testified at the time Carolina Forge moved for summary judgment. Plaintiffs argue these depositions are relevant to determine what activities Garris and Billups believed were or were not authorized by Carolina Forge during the business trip to Joplin.
¶ 29 The trial court did not address Plaintiffs' request for more time to obtain discovery and presumably denied any such relief when it granted summary judgment to Carolina Forge. Because the trial court erred in granting summary judgment on both the respondeat superior and negligent entrustment claims, we need not determine whether the trial court abused its discretion in not allowing the Plaintiffs more time to obtain additional discovery.
¶ 30 Reasonable minds could differ on whether the employees of Carolina Forge were in the course and scope of their employment at the time of the accident and whether Carolina Forge negligently entrusted the rental vehicle to its employees. Summary judgment was improper.
¶ 31 COLBERT, C.J., REIF, V.C.J., WATT, WINCHESTER, EDMONDSON, TAYLOR, COMBS and GURICH, JJ., concur.
¶ 32 KAUGER, J., concurs in part, dissents in part.
When an employer sends an employee on a business trip with cash, credit cards and rent car along with a company history of encouragement and payment for alcohol consumption, this personal injury accident is a foreseeable result and should be decided by a fact-finder.
Defendant Carolina Forge Company's Reply to Plaintiffs' Response to Defendant Carolina Forge Company's Motion for Summary Judgment and Brief in Support, Ex. A at 21-22.
Ms. Mixon's deposition also indicates a toxicology report was done on Billups after the wreck, but the toxicology report is not included in the record. Plaintiff's Response to Defendant Carolina Forge Company's Motion for Summary Judgment and Brief in Support, Ex. B at 65-66. Ms. Mixon's deposition also indicates Garris and Billups had dinner and drinks at the Timberline Steakhouse and then drove to the casino. Id. Ex. B at 53-54.
Id. Ex. B at 47-48.
Id. Ex. B at 80-81.
Oklahoma Uniform Jury Instruction 6.7-Scope of Employment.
OUJI 6.12 goes onto state:
Oklahoma Uniform Jury Instruction 6.12-Scope of Authority or Employment-Departure.
Transcript of Motion for Summary Judgment Proceedings at 10 (Jan. 7, 2011).
Under North Carolina law, "for a claimant to recover workers' compensation benefits for death, he must prove that death resulted from an injury (1) by accident; (2) arising out of his employment; and (3) in the course of the employment." Pickrell v. Motor Convoy, Inc., 322 N.C. 363, 368 S.E.2d 582 (1988).
