This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (1998).




Philip Johnson, et al.,



Renee Diane Rivera,


Allina Health Systems,

a Minnesota non-profit corporation

d/b/a Healthspan Home Care,


Filed June 1, 1999


Toussaint, Chief Judge

Ramsey County District Court

File No. C1976197

Robert P. Christensen, Steven W. Anderson, Dunkley, Bennett & Christensen, P.A., 701 Fourth Avenue South, Suite 700, Minneapolis, MN 55415 and

Lawrence M. Rocheford, Jardine, Logan & O'Brien, 2100 Piper Jaffray Plaza, 444 Cedar Street, St. Paul, MN 55101 (for appellants)

Bruce P. Candlin, Candlin & Wright, 3800 West 80th Street, Suite 1500, Bloomington, MN 55431-4429 (for respondent)

Considered and decided by Toussaint, Chief Judge, Randall, Judge, and Foley, Judge.[*]


TOUSSAINT, Chief Judge

Appellants are (1) the victim of a car accident; (2) his wife; and (3) the driver of the car that caused the accident; respondent is the driver's employer. After a jury found that the driver was not acting within the scope of her employment when the accident occurred, appellants moved for JNOV or for a new trial on the grounds that the jury's finding was not supported by the evidence and the jury instructions did not accurately state the law. They challenge the denial of those motions. Because we conclude that the evidence supports the jury's finding and that the jury instructions accurately stated the law, we affirm.


1. Jury Finding

On review,

answers to special verdict questions will not be set aside unless they are perverse and palpably contrary to the evidence or where the evidence is so clear [as] to leave no room for differences among reasonable people. The evidence must be viewed in a light most favorable to the jury verdict. If the jury's special verdict finding can be reconciled on any theory, the verdict will not be disturbed.

Hanks v. Hubbard Broadcasting, Inc. 493 N.W.2d 302, 309 (Minn. App. 1992)

(citations omitted), review denied (Minn. Feb. 12, 1993).

The jury answered "no" to the question whether appellant Renee Rivera was acting within the scope of her employment with respondent Allina Health Systems when her car collided with a car driven by appellant Philip Johnson.

To support a finding that an employee's negligent acts occurred within his scope of employment, it must be shown that the conduct was, to some degree, in furtherance of the interests of his employer. Other factors to be considered are whether the employee is authorized to perform this type of act, whether the act occurs substantially within authorized time and space restrictions, and whether the employer should reasonably have foreseen the employee's conduct.

Hentges v. Thomford, 569 N.W.2d 424, 427-28 (Minn. App. 1997) (citations omitted), review denied (Minn. Dec. 8, 1997).

Rivera, a psychiatric nurse who visited patients in their homes, was driving home from her last appointment shortly after 5:00 p.m., when she received a page she recognized as her daughter's. The accident occurred when Rivera reached to the floor of her car to retrieve her cell phone so she could call her daughter. Although Allina supplied her pager, Rivera was allowed to take personal calls. Rivera was not reimbursed for mileage from her last appointment to her home; she did not take client calls or work calls after 5:00 p.m. and she was in her car; the accident did not occur on Allina's time or in Allina's space. Allina could not have foreseen Rivera's conduct. The jury found that Rivera was not acting within the scope of her employment at the time of the accident.

Appellants rely on Edgewater Motels, Inc. v. Gatzke, 277 N.W.2d 11 (Minn. 1979) and Mensing v. Rochester Cheese Express, Inc. 423 N.W.2d 92 (Minn. App. 1988) to argue that neither the personal page nor the intent to make a personal phone call removed Rivera from the scope of employment. This argument fails for two reasons: first, Rivera was already outside the scope of her employment when she received the page and reached for the phone; and second, the cases are distinguishable.

In Edgewater Motel, an employee living at a motel and on call for his employer 24 hours a day threw the cigarette he was smoking while filling out his expense report into the wastebasket and started a fire. The court concluded that smoking a cigarette while pursuing the employer's interests was an act within the scope of employment. Edgewater, 277 N.W 2d at 16. But Rivera did not respond to her pager and reach for her phone while working; rather, she was driving home from work when the accident occurred.

In Mensing, the accident occurred while the employee, a truck driver, was driving his tractor to lunch after leaving the trailer to be loaded. The court concluded that eating lunch was an act "necessary to the life, comfort and convenience of the employee while at work" and was "contemplated to be within the scope of employment." Mensing, 423 N.W.2d at 95 (citation omitted). Reaching under the seat of a car for a phone to make a personal call, by contrast, is not "necessary to the life, comfort, or convenience of the employee while at work."

The evidence supports the jury's finding that Rivera was not acting within the scope of her employment at the time of the accident.

2. Jury Instructions

Where instructions fairly and correctly state the applicable law, an appellate court will not grant a new trial. Alevizos v. Metropolitan Airports Comm'n, 452 N.W.2d 492, 501 (Minn. App. 1990), review denied (Minn. May 11, 1990). A court has broad discretion in determining jury instructions. State Farm Fire & Cas. Co. v. Short, 459 N.W.2d 111, 113 (Minn. 1990).

The trial court instructed the jury on scope of employment with JIG 252.1. Appellants contend that this instruction does not correctly state the applicable law and that they are entitled to a new trial because the district court refused to give three instructions they requested.

The first of these was:

An employee does not leave the scope of employment because of an incidental personal act if the main purpose is to carry on the business of the employer.

In support, appellants cite Bauer v. Markovich, 484 N.W.2d 437 (Minn. App. 1992), in which the issue was whether a carpenter who was instructed to drive to a job site, injected himself with cocaine, and caused an accident en route to the job site, deviated from the scope of his employment. Id. at 438. In instructing the jury, the Bauer court read the portion of JIG 252.1 that distinguishes incidental deviations, which do not put the employee outside the scope of employment, from substantial deviations, which do. Id. at 439. But Rivera was on her way home; there was no deviation from the scope of employment because she was not within the scope of employment.

There is no Minnesota law supporting appellants' second requested instruction, "An act may be within the scope of employment although the act was negligent," and their citation to the Restatement (Second) of Torts does not provide adequate support.

The third requested instruction was:

As it regards whether an employee is in the scope of her employment at the time of an accident while driving home, the test is whether the accident occurred at a time when the employee was being of service to the employer which may or may not coincide with the period for which wages or mileage are paid.

In support, appellants cite Blattner v. Loyal Order of Moose, 264 Minn. 79, 117 N.W.2d 570 (1962), which awarded worker's compensation benefits to an employee who injured himself on the employer's premises while waiting for a ride home from another employee. Id. at 79-80, 117 N.W.2d at 571. Appellants' reliance on Blattner is misplaced.

We conclude that evidence supports the jury's finding that Rivera was not acting within the scope of her employment when she caused the accident and the jury instructions fairly and accurately stated the law.


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