                   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.
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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.
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      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”).
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       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.
