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  • WisBar News
    September 17, 2013

    Employee Struck Bus Going to Work, but Employer Not Liable to Bus Company

    Sept. 17, 2013 – Jessica Reyna’s manager at Family Dollar Store asked her to perform some duties on her day off. On her way to the store, her vehicle hit a county bus, but a state appeals court has ruled that Family Dollar is not liable for any damages.

    Specifically, the court of appeals in Milwaukee Transport Services Inc. v. Family Dollar Stores of Wisconsin Inc., 2012AP2583 (Sept. 17, 2013), ruled that Reyna was not acting with the scope of her employment when the accident occurred.

    Employers can be liable for damages caused by employees under the doctrine of respondeat superior. But the employee must be acting within the scope of employment. In this case, the appeals court agreed that Reyna was not performing work duties.

    Reyna was an assistant manager, and she testified that assistant managers were occasionally asked to do “bank runs” on days off. Reyna was performing a bank run when she struck the bus. Milwaukee Transport Services sued Reyna and Family Dollar.

    According to the court, “Family Dollar did not pay her for bank runs, reimburse her for mileage, pay for gas, send a car for her, or direct her as to which route to take to the store.” And refusing to do a bank run would be a “strike” in her employment file.

    “[T]ravel was not an integral part of Reyna’s responsibilities, although the occasional run may have been,” wrote Judge Joan Kessler. “We need not reach that question because the accident occurred before Reyna arrived at work.”

    Although the appeals court has previously held that an employee is not acting within the scope of employment while driving to and from work, Milwaukee Transport argued that so-called Carter exceptions apply. The court of appeals rejected these arguments.

    Milwaukee Transport argued that Family Dollar should be liable because Reyna was on-call, made a “special mission” on the employer’s behalf, and she was required to use personal transportation for work-related tasks.

    First, the court ruled that bank runs were not “special errands,” because assistant managers routinely perform them, even on days off. In addition, Reyna was not required to use a personal vehicle; she was just required to arrange transportation.

    “The record does not provide a factual basis for any of the elements of the Carter exception,” Judge Kessler wrote for the panel, which refused to reexamine the “special mission” exception because appeals courts cannot modify language from prior rulings.

    “[O]nly the supreme court may do so,” Judge Kessler noted. 

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