This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (1994).

STATE OF MINNESOTA

IN COURT OF APPEALS

C8-96-939

West Bend Mutual Insurance Company

as subrogee of Debra Briski and Donald Kieffer,

Plaintiffs,

vs.

Broadway Rental Equipment Company,

Respondent,

Julie Schuffenhauer, et al.,

Defendants,

and

Stephen Ondik,

Appellant.

Filed October 22, 1996

Affirmed

Harten, Judge

Hennepin County District Court

File No. 952940

Bruce P. Candlin, Attorney at Law, 3800 West 80th Street, Suite 1500, Bloomington, MN 55431-4429 (for Respondent)

Graham N. Heikes, Attorney at Law, 4700 Norwest Center, 90 South Seventh Street, Minneapolis, MN 55402-4129 (for Appellant)

Considered and decided by Harten, Presiding Judge, Schumacher, Judge, and Foley, Judge.[*]

U N P U B L I S H E D O P I N I O N

HARTEN, Judge

Appellant Stephen Ondik argues that the district court erred in granting respondent Broadway Rental Equipment Company summary judgment on the ground that Ondik was not acting within the course and scope of his employment. We affirm.

FACTS

In September 1992, Julie Schuffenhauer contacted Stephen Ondik, a personal acquaintance and employee of Broadway Rental Equipment Company (Broadway), at work and asked him to rent a gasoline-powered electricity generator for her. Schuffenhauer told Ondik that she had just moved into a home in Minneapolis with Vicki Sirocchi, but the electricity in the home had been turned off because of failure to pay the electric bill. As a Broadway employee, Ondik was entitled to an 80 percent employee's discount on up to eight personal rentals per month. Later that day, Ondik personally rented an electricity generator using his discount. After work, and on his own time, Ondik delivered the generator to the Schuffenhauer-Sirocchi residence. Ondik installed the generator in the basement and advised Schuffenhauer as to its use.

On or about September 29, 1992, Sirocchi attempted to refuel the generator, causing an explosion and resulting fire that substantially damaged the home. Debra Briski and Donald Kieffer, the owners of the home, filed a claim with their fire insurer, West Bend Mutual Insurance Company (West Bend). West Bend paid approximately $100,000 under the policy. West Bend then brought a subrogation claim against Broadway under the theory of respondeat superior, claiming that its employee, Ondik, acted negligently in delivering and installing the generator.[1] The district court granted summary judgment for Broadway. Ondik appeals.

D E C I S I O N

This court is not bound by the trial court's decision on purely legal questions, but must review such questions de novo. Frost-Benco Elec. Ass'n. v. Minnesota Pub. Utils. Comm'n., 358 N.W.2d 639, 642 (Minn. 1984). "On an appeal from summary judgment, we ask two questions: (1) whether there are any genuine issues of material fact and (2) whether the [district court] erred in [its] application of the law." State by Cooper v. French, 460 N.W.2d 2, 4 (Minn. 1990).

A motion for summary judgment shall be granted when the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue of material fact and that either party is entitled to a judgment as a matter of law. Minn. R. Civ. P. 56.03. On appeal, the reviewing court must view the evidence in the light most favorable to the party against whom judgment was granted.

Fabio v. Bellomo, 504 N.W.2d 758, 761 (Minn. 1993) (citation omitted). To defeat a properly supported motion for summary judgment, a nonmoving party must offer affirmative evidence demonstrating a material factual dispute. Carlisle v. City of Minneapolis, 437 N.W.2d 712, 715 (Minn. App. 1989). The party opposing summary judgment, cannot merely rely upon general statements of fact, but must demonstrate specific facts that create a genuine issue for trial. Hunt v. IBM Mid Am. Employees Fed. Credit Union, 384 N.W.2d 853, 855 (Minn. 1986).

1. Employer Liability

An employer is liable for the negligent acts of its employees committed within the course and scope of the employee's duties. Seidl v. Trollhaugen, Inc., 305 Minn. 506, 508, 232 N.W.2d 236, 240 (1975). The determination of the relevant scope of employment depends on the circumstances of each individual case and is usually a question of fact for the jury. See Marston v. Minneapolis Clinic of Psychiatry & Neurology, Ltd., 329 N.W.2d 306, 311 (Minn. 1982) (question of fact whether acts committed with patients were within scope of employment); Boland v. Morrill, 270 Minn. 86, 95, 132 N.W.2d 711, 717 (1965) (jury question arises where there is disputed evidence). Where the evidence is conclusive or undisputed, however, this court may find that as a matter of law an employee was not acting within the scope of his employment. Porter v. Grennan Bakeries, 219 Minn. 14, 20, 16 N.W.2d 906, 909 (1944) (affirming directed verdict for employer, finding employee as matter of law outside scope of employment). Here, the facts underlying summary judgment are undisputed. The only issue is whether Ondik's actions were within the course and scope of his employment.

Minnesota courts have examined three factors in determining whether an employee is acting within the scope of his employment: (1) the employee's motivation, (2) whether the employer authorized the conduct, and (3) whether the act occurred within authorized time and space restrictions. See Bauer v. Markovich, 484 N.W.2d 437, 439 (Minn. App. 1992) (employer not vicariously liable for acts committed by employee who substantially deviates from scope of employment in time, space, or purpose).

The first consideration is whether the employee's actions were motivated, at least in part, to serve the employer's interest.[2] Nelson v. Nelson, 282 Minn. 487, 490, 166 N.W.2d 70, 73 (1969). "If the act be done while the servant is at liberty from the service, and pursuing his own ends exclusively, the master is not responsible." Kuchmichel v. Western Union Tel. Co., 125 Minn. 74, 76, 145 N.W. 788, 789 (1914). Where the purpose of an employee's acts is purely personal, the employer will not be held liable. Walker v. Scott County, 518 N.W.2d 76, 78 (Minn. App. 1994), review denied (Minn. Aug. 24, 1994).

Ondik argues that Broadway should be held vicariously liable because it received a benefit from the discounted rental fee. See Bauer, 484 N.W.2d at 439 (liability may exist if employer benefitted from acts of employee). In support of its motion for summary judgment, Broadway submitted an affidavit of Todd Breuer, a rental manager, stating that Broadway's employee discounted rentals were not intended to generate revenue. Ondik points to no evidence in the record to support a contrary conclusion.

Another factor is whether Ondik's actions were motivated to benefit his employer. The evidence demonstrates that Ondik acted outside his normal working hours. He stated in his deposition that he rented the generator in his own name (as an employee rental) and lent it to Schuffenhauer as a personal favor to her. When Schuffenhauer called Broadway to inquire about a generator, she asked to speak directly to Ondik and asked him to rent a generator for her. The evidence is clear that Ondik's exclusive motivation was to assist a friend in a manner unrelated to his employment obligations. Any benefit received by Broadway was merely incidental. Thus, Ondik has failed to demonstrate an issue of material fact to support his contention that his acts were in furtherance of his employment.

Second, we consider whether the employee was authorized to perform the alleged negligent acts. Edgewater Motels, Inc. v. Gatzke, 277 N.W.2d 11, 15 (Minn. 1979). There is no evidence that delivery, installation, and relay of instructions on use of the generator were within Ondik's employment duties. Ondik's job included the handling and repair of rental equipment and the occasional delivery of generators to construction sites; Ondik had never installed a generator for his employer. We conclude that Ondik's delivery of the generator to Schuffenhauer's home was not employer-authorized conduct.

Third, we consider whether the act occurs substantially within authorized time and space restrictions. Edgewater Motels, 277 N.W.2d at 15; Bauer, 484 N.W.2d at 439. Ondik rented the generator personally using his employee discount and installed it in Schuffenhauer's home after he had left work for the day. There is no evidence that Ondik was authorized to conduct company business outside his regular working hours. To the contrary, the evidence indicates that Ondik, an hourly employee, was not so authorized.

Moreover, the delivery, installation, and use instructions for the generator occurred outside of Ondik's place of employment. An employee is not within the scope of his employment when he is not doing what he was employed to do and when he departs from his area of service. Porter, 219 Minn. at 19, 16 N.W.2d at 909 (salesman who entered retail store where he was not authorized to conduct business acted outside scope of employment). There is no evidence that Ondik was authorized or permitted to conduct a transaction of this nature away from his place of employment. We conclude that Ondik's actions deviated from authorized time and space restrictions of his employment.

Accordingly, based upon our application of the three Bauer factors, we agree with the district court that Ondik was not acting within the course and scope of his employment. The district court properly granted summary judgment for Broadway.

. 2. West Bend Mutual Insurance Company's Brief

West Bend Mutual Insurance Company (West Bend) filed a respondent's brief supporting appellant's position in this appeal. West Bend neither joined in Ondik's notice of appeal nor filed its own notice of appeal. West Bend waived participation in oral argument and we deferred determination of whether to strike its brief until rendition of our appellate decision. This court will not consider issues raised solely by an aggrieved party who has failed to file a notice of appeal or join in the present appeal. Nash v. Allen, 392 N.W.2d 244, 247 (Minn. App. 1986), review denied (Minn. Oct. 22, 1986). West Bend's brief essentially supports appellant's position but does not raise separate issues or alter the outcome of the appeal. Under these circumstances, we decline to strike the brief. See In re Petitions to Adopt K.L.L., 515 N.W.2d 618, 623 (Minn. App. 1994) (refusing to strike respondent's brief filed by commissioner supporting appellant's position where respondent did not establish substantial prejudice).

Affirmed.

[ ]* Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. art. VI, § 10.

[ ]1West Bend also sued Ondik, Schuffenhauer and Sirocchi.

[ ]2Appellant's reliance on Lange v. National Biscuit Co., 297 Minn. 399, 211 N.W.2d 783 (1973) arguing that the employee's motivation is irrelevant in this case is misplaced. In Lange, the supreme court held that for intentional torts, the determination of whether the assault occurred within the course and scope of employment depends upon whether the attack is related to the duties of the employee and whether the "assault occurs within work-related limits of time and place." Id. at 404, 211 N.W.2d at 786. The supreme court reaffirmed this position in Marston, 329 N.W.2d at 310, and noted that although an employee's motivation is irrelevant to determine whether an intentional tort occurs within the scope of employment, when the claim lies in negligence the relevant duty of care is determined by employment status; therefore the employee's act must be, at least in part, in furtherance of his employer's interest. Id.