Torts II, Pages 708–710

O'Shea v. Welch

United States Court of Appeals for the Tenth Circuit, 2003


Welch, an Osco store manager, was driving to the Osco district office to deliver football tickets to Osco managers. On his way, he stopped at a service station to get an estimate on some work he needed done on his car. However, when he was pulling in he cut off and struck plaintiff's car. Plaintiff sued Welch for negligence for failing to yield and Osco in vicarious liability.

Procedural History:

District court did not decide if the trip to the district office was within the scope of Welch's employment as it found that his stop was not and granted summary judgment.


Was Welch's stop within the scope of his employment?


  • An employer is only liable for injuries caused by an employee acting within the scope of his employment.

  • LexisNexis IconWestLaw LogoGoogle Scholar LogoPage 708, Bottom

    An employee is acting within the scope of [his employment] when [he] is performing services for which [he] has been [employed], or when [he] is doing anything which is reasonably incidental to [his employment]. The test is not necessarily whether this specific conduct was expressly authorized or forbidden by the employer[], but whether such conduct should have been fairly foreseen from the nature of the [employment] and the duties relating to it.

  • LexisNexis IconWestLaw LogoGoogle Scholar LogoPage 709Approximately half of the states have applied the slight deviation analysis, which says that a detour, or a slight deviation, is sufficiently related to the employment, but a frolic, a substantial deviation, is not. A frolic is when the employee wholly abandons, even temporarily, the employer's business for personal reasons.


    • A slight deviation for the comfort, convenience, health, and welfare of the employee while at work are not outside the scope of employment if the conduct is not a substantial deviation from the duties of employment.

    • LexisNexis IconWestLaw LogoGoogle Scholar LogoPage 709, Bottom

      Several factors have been identified as helpful in determining whether an employee has embarked on a slight or substantial deviation. They include:

      1. the employee's intent;
      2. the nature, time, and place of the deviation;
      3. the time consumed in the deviation;
      4. the work for which the employee was hired;
      5. the incidental acts reasonably expected by the employer; and
      6. the freedom allowed the employee in performing his job responsibilities.


Kansas should use the slight deviation analysis. While it was not an emergency, routine maintenance on a car used for business purposes could be enough of a mixed purpose to be within the scope of his employment. The accident was mere feet away from the route he was taking for his employment and was still technically on the road en route to Osco's district office. Being a manager, Welch may have been entitled to some freedom to attend to personal needs throughout the day.


Assuming that Welch was acting within the scope of his employment delivering the tickets, a jury could find that he was still acting in such scope at the time of the accident. Remanded.