PUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

CATHERINE MCNAIR, Ancillary
Administratrix for the Estate of
Edward Earl McNair,
Plaintiff-Appellant,

and

EDWARD EARL MCNAIR, deceased,
Plaintiff,

v.
                                                           No. 93-2528
LEND LEASE TRUCKS, INCORPORATED;
LEND LEASE DEDICATED SERVICES,
INCORPORATED,
Defendants-Appellees,

and

ROBERT MONROE, Administrator of
the Estate of Thomas Paul Jones;
THOMAS PAUL JONES, deceased,
Defendants.

Appeal from the United States District Court
for the Eastern District of North Carolina, at Raleigh.
Franklin T. Dupree, Jr., Senior District Judge.
(CA-93-305-5-D)

Argued: January 30, 1996

Decided: September 10, 1996

Before WILKINSON, Chief Judge, RUSSELL, WIDENER, HALL,
MURNAGHAN, ERVIN, WILKINS, NIEMEYER, HAMILTON,
LUTTIG, WILLIAMS, MICHAEL, and MOTZ, Circuit Judges, and
PHILLIPS, Senior Circuit Judge.
Vacated and remanded by published opinion. Judge Hall wrote the
majority opinion, in which Chief Judge Wilkinson and Judges
Murnaghan, Ervin, Wilkins, Luttig, Williams, Michael, and Motz
joined. Judge Widener wrote a separate concurring opinion. Senior
Judge Phillips wrote a dissenting opinion in which Judges Russell,
Niemeyer and Hamilton joined.

_________________________________________________________________

COUNSEL

ARGUED: Donald Haskell Beskind, BLANCHARD, TWIGGS,
ABRAMS & STRICKLAND, P.A., Raleigh, North Carolina, for
Appellant. John C. Millberg, MAUPIN, TAYLOR, ELLIS &
ADAMS, P.A., Raleigh, North Carolina, for Appellees. ON BRIEF:
Karen M. Rabenau, BLANCHARD, TWIGGS, ABRAMS &
STRICKLAND, P.A., Raleigh, North Carolina, for Appellant. Rich-
ard N. Cook, MAUPIN, TAYLOR, ELLIS & ADAMS, P.A., Raleigh,
North Carolina, for Appellees.

_________________________________________________________________

OPINION

HALL, Circuit Judge:

Catherine McNair, administratrix of the estate of Edward Earl
McNair, brought an action in state court against Thomas Paul Jones
and his employer, Lend Lease,1 seeking damages for the wrongful
death of her intestate. The action was removed on diversity grounds,
and default judgment was entered against Jones. The court ruled that
Jones was outside the scope of his employment at the time of the acci-
dent and, therefore, McNair had failed to state a claim against the
employer under the doctrine of respondeat superior. Lend Lease's
Rule 12(b)(6) motion to dismiss was granted, and McNair appeals.
_________________________________________________________________
1 In the complaint, Jones is described as an employee of both corporate
defendants, Lend Lease Trucks, Inc., and Lend Lease Dedicated Ser-
vices, Inc. In this opinion, these defendants are referred to collectively
as "Lend Lease."

                   2
I

On appeal from an order granting a motion to dismiss under Fed.
R. Civ. P. 12(b)(6), we accept as true the facts alleged in the com-
plaint. Doe v. Doe, 973 F.2d 237, 238 (4th Cir. 1992). These facts are
that Thomas Paul Jones was employed by Lend Lease to drive a truck
on interstate routes. On May 25, 1991, "before dusk,"2 he stopped his
truck on the side of a highway in North Carolina and walked across
the highway to the Dry Dock Lounge. While there,"he began to con-
sume alcoholic drinks." At 11:15 P.M., he left and began to cross the
highway "in order to enter the tractor trailer" when he "suddenly
darted in front of the motorcycle being operated by Plaintiff's dece-
dent." The two collided, and McNair and Jones were killed. It was
later determined that Jones' blood alcohol level was.28%, almost
three times the legal limit for someone operating a motor vehicle.3
The court held that Jones had deviated from the scope of his employ-
ment when he first stopped his truck or, alternatively, when he
embarked on his drinking spree, and, further, that he had not returned
to the scope at the time of the accident.

II

The plaintiff contends that Jones' negligence was the proximate
cause of her decedent's death and that his negligence should be
imputed to Lend Lease under the doctrine of respondeat superior.
The district court ruled that, as a matter of law, Jones was outside the
scope of his employment at the time of the collision, and, therefore,
Lend Lease could not be held vicariously liable. We review this ruling
de novo. Revene v. Charles County Comm'rs , 882 F.2d 870, 872 (4th
Cir. 1989). With respect to questions of law, we must predict how the
_________________________________________________________________
2 Based on the complaint's allegations of stopping "before dusk" in late
May, the court took judicial notice that this made out a claim that Jones
initially stopped between 7:00 and 8:00 P.M.

3 We adopt that portion of Judge Phillips' opinion for the panel major-
ity that explained why it is proper to consider the fact of Jones'
intoxication--a fact not appearing on the face of the complaint--in this
appeal from a Rule 12(b)(6) dismissal. See McNair v. Lend Lease Trucks,
Inc., 62 F.3d 651, 655-56 (4th Cir. 1995).

                    3
Supreme Court of North Carolina would rule. Doe , 973 F.2d at 240.4
The sufficiency of the pleadings, however, is a procedural matter to
which federal law applies, and our longstanding rule has been "that
a motion to dismiss for failure to state a claim should not be granted
unless it appears to a certainty that the plaintiff would be entitled to
no relief under any state of facts which could be proved in support of
his claim." Rogers v. Jefferson-Pilot Life Ins. Co., 883 F.2d 324, 325
(4th Cir. 1989) (quoting Johnson v. Mueller, 415 F.2d 354, 355 (4th
Cir. 1969)). Our task, then, is to first ascertain the substantive state
law and then to apply it to determine whether, on the record before
the district court, the plaintiff could prove any set of facts that would
permit a finding of respondeat superior liability.

III

The fundamental principle of respondeat superior is simply stated:
An employer is liable for his employee's torts that occur while the
employee is "acting in the scope of his employment or about his mas-
ter's business." Parrott v. Kantor, 6 S.E.2d 40, 43 (N.C. 1939). An
employer can escape liability, however, under an equally well estab-
lished rule: An employee who deviates from his work to engage "in
some pursuit of his own" is not acting within the scope of his employ-
ment. Id. The deviation, however, must be complete:

          Not every deviation from the strict execution of his duty is
          such an interruption of the course of employment as to sus-
          pend the master's responsibility; but if there is a total depar-
          ture from the course of the master's business, the master is
          no longer answerable for the servant's conduct. . . . The
          departure commences when the servant definitely deviates
          from the course or place where in the performance of his
          duty he should be.

Hinson v. Virginia-Carolina Chemical Corp., 53 S.E.2d 448, 452
(N.C. 1949) (internal citations omitted). Scope questions have been
characterized as mixed questions of law and fact. Sandy v. Stackhouse
_________________________________________________________________
4 We note, as we have previously, that North Carolina is the only state
in the Fourth Circuit that does not allow federal courts to certify ques-
tions of state law to its highest court. See Doe, 973 F.2d at 240 n.2.

                     4
Inc., 128 S.E.2d 218, 221 (N.C. 1962). With these basic principles in
mind, we turn to the facts.

A

The district court held that Jones left the scope of employment
when he stopped on the side of the road and left the cab of his truck
to walk to the lounge. We disagree with the court's view that Jones
"was on a mission of his own and was not in the course and scope of
his employment" as soon as he left the truck to eat. During arguments
on the motion to dismiss, Lend Lease's lawyer conceded that a truck
driver on an extended trip is "probably within the scope of his
employment" when he takes "any reasonable breaks [ ] for meals or
to rest or for whatever reason or purpose."

The district court cited as a general rule that an employee driving
his own or even his employer's vehicle to a place where he intends
to eat is not ordinarily within the scope of his employment until he
resumes his job duties. This is indeed the general rule, the theory
being that the employee furthers no interests of his employer during
a lunch break and is free to pursue his own interests during the allot-
ted period. See generally W.E. Shipley, Annotation, Employer's Lia-
bility for Employee's Negligence in Operating Employer's Car in
Going To or From Work or Meals, 52 A.L.R.2d 350, 381 § 11 (1957).
In Sandy, decedent was on a line crew that was working out of town
repairing hurricane damage. After the day's work was completed and
he had returned to his motel, he decided to go for beer and soda at
a store 1/4 mile from the motel. As he was returning to the motel, he
was killed in an automobile accident. He was denied workers' com-
pensation on the ground that he was off duty and the accident did not
happen while the employee was "engaged in the discharge of some
function or duty which he [was] authorized to undertake and which
[was] calculated to further, directly or indirectly, the master's busi-
ness." Id. (citation omitted).5
_________________________________________________________________
5 Sandy has not been assiduously followed by the North Carolina
courts. See, e.g., Martin v. Georgia-Pacific Corp., 167 S.E.2d 790, 795
(N.C. App. 1969) (affirming workers' compensation death benefits to
survivors of employee who was attending a training seminar out of town
and was killed while walking to a restaurant).

                    5
A long-haul trucker, however, often has no choice but to stop on
the road to eat. See Roberts v. Burlington Industries, Inc., 364 S.E.2d
417, 423 (N.C. 1988) ("We have held that when an employee's duties
require him to travel, the hazards of the journey are risks of the
employment.") (citing Hinkle v. City of Lexington, 79 S.E.2d 220
(N.C. 1953)). In Jones' case, where and when he stopped was no
doubt dictated in large part by the route and length of the driving
assignment. Moreover, it is likely that government regulation and
company policy required stops at regular intervals and of some mini-
mum length. See, e.g., 49 C.F.R. § 395.3 (1990) (I.C.C. requires that
interstate drivers certify that they have obtained sufficient rest during
course of driving assignment). It may be, then, that stopping and leav-
ing his truck when and where he did would not take him outside the
scope of his employment. If Jones deviated as a matter of law, the
deviation must be found at some point farther into the evening.

B

If stopping and taking a "reasonable break" does not take Jones
outside the scope, is a 3-4 hour break unreasonable as a matter of
law? We are unable to say so from the record before us, for many of
the same reasons that we cannot say that any break does not automati-
cally remove a driver from the scope. The question of what is reason-
able must be informed by a host of facts that have yet to be
developed: What rules and policies applied to his situation? How far
had he driven that day, and how much farther had he to go? When
was his last stop, and when would he next have a chance to stop? See,
e.g., Turnbow v. Hayes Freight Lines, 145 N.E.2d 377, 380 (Ill. App.
1957) (holding that an interstate driver en route to motel for rest stop
required by I.C.C. and by employer rules was within scope of
employment). The temporal and spatial circumstances of this case do
not compel a finding that Jones was outside the scope of his employ-
ment at the time of the accident.

C

The next point at which the district court found a departure from
the scope of his employment was "when [Jones] chose to remain in
the bar and consume alcoholic beverages until 11:15 p.m. . . ." This
alternative holding involves a "frolic" that is unlike the usual case of

                     6
an employee's detour from the assigned or most direct route to
accomplish some purely personal purpose. There are, however, North
Carolina cases that do involve employees who have caused injuries
while engaged in what might be characterized as"conduct frolics."
Although the injury-causing conduct occurred during business hours
and on the business premises, some frolics have been found to fall
outside the scope of employment. See, e.g., Medlin v. Bass, 398
S.E.2d 460 (N.C. 1990) (sexual assault on student by school principal
in his office during school hours); Wegner v. Delly-Land Delicates-
sen, Inc., 153 S.E.2d 804 (N.C. 1967) (store employee's shooting of
a customer over personal dispute unrelated to employment); Stanley
v. Brooks, 436 S.E.2d 272 (N.C. App. 1993) (sexual assault of cus-
tomer by car salesman during test drive), rev. denied, 442 S.E.2d 521
(1994); but see Edwards v. Akion, 279 S.E.2d 894, 898 (N.C. App.
1981) (holding that assault by employee against customer, arising out
of dispute concerning services that employee was performing, not
outside scope of employment as a matter of law). Jones' alleged neg-
ligence is altogether different from the willful assaults in these cases.

In carving out a "category of intentional tortious acts designed to
carry out an independent purpose" of the employee, the North Caro-
lina courts have been careful to note that "[w]here the employee's
actions are conceivably within the scope of employment and in fur-
therance of the employer's business, the question is one for the jury."
Medlin, 398 S.E.2d at 463-64. We have been unable to uncover any
cases from North Carolina that hold that an employee who becomes
intoxicated while otherwise within the scope of his employment is, as
a matter of law, outside the scope of his employment by reason of
such intoxication. In the absence of controlling precedent, we are
unwilling to predict that the Supreme Court of North Carolina would
extend the rule established in the context of intentional torts to cover
Jones' situation.

IV

Even if an employee who spends several hours drinking alcoholic
beverages can be said to have embarked on a frolic of his own, the
case is not over. The complaint alleges sufficient facts to permit a
finding that, even had he left the scope at some point in the evening,

                     7
Jones had returned to the scope of his employment prior to the acci-
dent.

In discussing whether Jones might have returned to the scope of his
employment at some point before the accident, the district court
located the physical point of return at the cab of the truck. It follows,
then, that drunk or not, an employee behind the wheel and headed
toward his assigned destination is "about his master's business."6 We
agree with the district court to the extent that its holding can be read
to reject the contention that the level of intoxication alone can define
when an employee is frolicking. See, e.g., Bejma v. Dental Dev. and
Mfg. Co., 356 F.2d 227 (6th Cir. 1966) (intoxicated travelling sales-
man on return trip within scope). We disagree, however, with the
point of return established as a matter of law by the district court.

The question devolves to this: Even if it is assumed that Jones had
deviated from the scope of his employment at some point during his
drinking spree, is there any set of facts under which it could be found
that he had returned to the scope of his employment before the acci-
dent? We predict that the Supreme Court of North Carolina would
hold that there is.

One court has developed a two-pronged test to determine whether
a frolicking employee has re-entered the scope of his employment: (1)
Had the employee formed the intention to act in furtherance of his
employer's business, and (2) was such an intention coupled with a
_________________________________________________________________
6 Butler v. Baker, 628 N.E.2d 98 (Ohio App. 1993), is instructive. The
employee in that case drove off the job site to pick up lunch for a work
crew. Instead of returning promptly, he stayed at the restaurant and drank
for four and a half hours. When he finally returned to the site after the
end of the working day, the crew had departed. He had begun to drive
the truck to the company garage when he caused an accident. The court
upheld a judgment on the jury verdict finding that the employee was
within the scope of his employment when the accident occurred. See,
also, Sloma v. Pfluger, 261 N.E.2d 323 (Ill. App. 1970) (scope issue
properly given to the jury, where evidence showed that employee left job
site in his own car at 3:30 P.M. to buy materials for the next day's work,
stopped first in a tavern for two and a half hours where he consumed five
or six beers, left the tavern intending to pick up the supplies, and caused
an accident at 6:45).

                     8
reasonable connection in time and space with the work in which he
should have been engaged? Prince v. Atchison, T. and S. F. Ry. Co.,
395 N.E.2d 592, 596 (Ill. App. 1979). Under this test, which is not
inconsonant with North Carolina law, the plaintiff has alleged suffi-
cient facts to survive the motion to dismiss. Jones may well be found
to have formed the intent to resume his driving duties, an intention
that conceivably could be found from nothing more than the fact that
he was walking toward his truck. Such intent, if found, could also be
found to have been reasonably connected to his assigned task. Jones
was mere yards away from his truck at the time of the accident, and
he may have intended to resume driving as soon as he reached the
truck.

We are not faced with the common situation in which an employee
has travelled miles off his assigned route to visit family or friends.
See, e.g., Hinson, 53 S.E.2d at 448. This is not a case in which an
employee drank too much at a job-related social function and caused
an accident on the way home. See Camalier v. Jeffries, 460 S.E.2d
133, 140-41 (N.C. 1995) (affirming summary judgment for
employer). Jones was not at a social function; he was on that highway
on that date because that was, presumably, what his employer
required of him. That he had to stop and stay for as long as he did
may also have been required. As we have already noted, circum-
stances may well have dictated that he had to park his truck where he
did and cross the highway to reach the restaurant. Even if Jones had
left the scope of his employment by staying too long to drink, we can-
not say that a set of facts could not be shown to prove that he had
returned to his master's business when he began walking towards his
truck.

The judgment is vacated, and the case is remanded for further pro-
ceedings.

VACATED AND REMANDED

WIDENER, Circuit Judge, Concurring:

I concur in the result.

                     9
PHILLIPS, Senior Circuit Judge, dissenting:

I respectfully dissent for reasons expressed in the vacated panel
opinion. 62 F.3d 651 (4th Cir. 1995).

Judge Russell, Judge Niemeyer and Judge Hamilton join in this
dissent.

                    10
