{ "id": 4243183, "name": "David OVECKA and Janice Ovecka, as Co-Personal Representatives of the Estate of Angela Ovecka, Plaintiffs-Appellants, v. BURLINGTON NORTHERN SANTA FE RAILWAY COMPANY, Defendant-Appellee", "name_abbreviation": "Ovecka v. Burlington Northern Santa Fe Railway Co.", "decision_date": "2008-07-09", "docket_number": "No. 26,449", "first_page": "113", "last_page": "122", "citations": [ { "type": "official", "cite": "145 N.M. 113" }, { "type": "parallel", "cite": "2008-NMCA-140" }, { "type": "parallel", "cite": "194 P.3d 728" } ], "court": { "name_abbreviation": "N.M. Ct. App.", "id": 9025, "name": "Court of Appeals of New Mexico" }, "jurisdiction": { "id": 52, "name_long": "New Mexico", "name": "N.M." }, "cites_to": [ { "cite": "655 S.W.2d 568", "category": "reporters:state_regional", "reporter": "S.W.2d", "case_ids": [ 9946321 ], "pin_cites": [ { "page": "571" } ], "opinion_index": 0, "case_paths": [ "/sw2d/655/0568-01" ] }, { "cite": "2005-NMSC-002", "category": "reporters:neutral", "reporter": "NMSC", "case_ids": [ 929191 ], "weight": 9, "pin_cites": [ { "page": "\u00b623" }, { "page": "\u00b6 22" }, { "page": "\u00b6 10" } ], "opinion_index": 0, "case_paths": [ "/nm/137/0064-01" ] }, { "cite": "110 N.M. 59", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 716977 ], "weight": 2, "year": 1990, "pin_cites": [ { "parenthetical": "\"A court may decide questions of negligence and proximate cause, if no facts are presented that could allow a reasonable jury to find proximate cause[.]\"" }, { "parenthetical": "\"A court may decide questions of negligence and proximate cause, if no facts are presented that could allow a reasonable jury to find proximate cause[.]\"" } ], "opinion_index": 0, "case_paths": [ "/nm/110/0059-01" ] }, { "cite": "130 P.3d 1011", "category": "reporters:state_regional", "reporter": "P.3d", "case_ids": [ 8436577 ], "pin_cites": [ { "page": "1020-21" } ], "opinion_index": 0, "case_paths": [ "/p3d/130/1011-01" ] }, { "cite": "2003-NMSC-018", "category": "reporters:neutral", "reporter": "NMSC", "case_ids": [ 77160 ], "weight": 3, "pin_cites": [ { "page": "\u00b6 6" } ], "opinion_index": 0, "case_paths": [ "/nm/134/0043-01" ] }, { "cite": "116 N.M. 222", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 727698 ], "weight": 2, "pin_cites": [ { "page": "228" }, { "page": "269" } ], "opinion_index": 0, "case_paths": [ "/nm/116/0222-01" ] }, { "cite": "57 N.M. 328", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 8841815 ], "weight": 2, "year": 1953, "pin_cites": [ { "page": "332" }, { "page": "722" } ], "opinion_index": 0, "case_paths": [ "/nm/57/0328-01" ] }, { "cite": "97 N.M. 765", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1555175 ], "weight": 2, "year": 1982, "pin_cites": [ { "page": "766" }, { "page": "852" } ], "opinion_index": 0, "case_paths": [ "/nm/97/0765-01" ] }, { "cite": "70 N.M. 449", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 2853470 ], "weight": 4, "year": 1962, "pin_cites": [ { "page": "464" }, { "page": "658" }, { "page": "464" }, { "page": "658" } ], "opinion_index": 0, "case_paths": [ "/nm/70/0449-01" ] }, { "cite": "115 N.M. 41", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 725482 ], "weight": 4, "pin_cites": [ { "page": "49" }, { "page": "355" }, { "page": "52-53" }, { "page": "358-59" } ], "opinion_index": 0, "case_paths": [ "/nm/115/0041-01" ] }, { "cite": "77 N.M. 406", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 2808445 ], "weight": 4, "year": 1967, "pin_cites": [ { "page": "408" }, { "page": "603" }, { "page": "407-08" }, { "page": "602-03" } ], "opinion_index": 0, "case_paths": [ "/nm/77/0406-01" ] }, { "cite": "2000-NMCA-011", "category": "reporters:neutral", "reporter": "NMCA", "case_ids": [ 106582 ], "weight": 6, "pin_cites": [ { "page": "\u00b6 14" }, { "page": "\u00b6 14" } ], "opinion_index": 0, "case_paths": [ "/nm/128/0601-01" ] }, { "cite": "2004-NMCA-098", "category": "reporters:neutral", "reporter": "NMCA", "case_ids": [ 1224625 ], "weight": 3, "pin_cites": [ { "page": "\u00b6 6" } ], "opinion_index": 0, "case_paths": [ "/nm/136/0280-01" ] }, { "cite": "180 P.3d 674", "category": "reporters:state_regional", "reporter": "P.3d", "opinion_index": 0 }, { "cite": "143 N.M. 667", "category": "reporters:state", "reporter": "N.M.", "opinion_index": 0 }, { "cite": "2008-NMCERT-002", "category": "reporters:neutral", "reporter": "NMCERT", "opinion_index": 0 }, { "cite": "2007-NMCA-122", "category": "reporters:neutral", "reporter": "NMCA", "case_ids": [ 3691625 ], "weight": 37, "pin_cites": [ { "page": "\u00b6 7" }, { "page": "\u00b6 12" }, { "parenthetical": "internal quotation marks and citation omitted" }, { "page": "\u00b614" }, { "page": "\u00b6\u00b6 17-18" }, { "page": "\u00b620" }, { "page": "\u00b619" }, { "page": "\u00b6 14" }, { "page": "\u00b6 12" }, { "page": "\u00b6 39" }, { "page": "\u00b6 30" }, { "page": "\u00b6 38" }, { "page": "\u00b6 38" } ], "opinion_index": 0, "case_paths": [ "/nm/142/0583-01" ] }, { "cite": "85 N.M. 27", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 2769144 ], "weight": 8, "pin_cites": [ { "page": "30" }, { "page": "1327" }, { "page": "29" }, { "page": "1325" }, { "page": "30" }, { "page": "1327", "parenthetical": "holding that a minor deviation for personal reasons is outside the scope of employment, but recognizing that employees can return to its course and scope" }, { "page": "30" }, { "page": "1327" } ], "opinion_index": 0, "case_paths": [ "/nm/85/0027-01" ] }, { "cite": "1999-NMCA-011", "category": "reporters:neutral", "reporter": "NMCA", "case_ids": [ 827395 ], "weight": 6, "pin_cites": [ { "page": "\u00b6 22" }, { "page": "\u00b6 18" } ], "opinion_index": 0, "case_paths": [ "/nm/126/0460-01" ] }, { "cite": "80 N.M. 171", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 5364052 ], "weight": 2, "year": 1968, "pin_cites": [ { "page": "180-81" }, { "page": "201-02" } ], "opinion_index": 0, "case_paths": [ "/nm/80/0171-01" ] }, { "cite": "113 N.M. 471", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 723189 ], "weight": 4, "year": 1992, "pin_cites": [ { "page": "475" }, { "page": "863" }, { "page": "472-73" }, { "page": "860-61" } ], "opinion_index": 0, "case_paths": [ "/nm/113/0471-01" ] }, { "cite": "2004-NMSC-018", "category": "reporters:neutral", "reporter": "NMSC", "case_ids": [ 1428039 ], "weight": 6, "year": 1992, "pin_cites": [ { "page": "\u00b6 29" }, { "page": "\u00b629" } ], "opinion_index": 0, "case_paths": [ "/nm/135/0539-01" ] }, { "cite": "1998-NMCA-107", "category": "reporters:neutral", "reporter": "NMCA", "case_ids": [ 834255 ], "weight": 3, "pin_cites": [ { "page": "\u00b6 7" } ], "opinion_index": 0, "case_paths": [ "/nm/125/0500-01" ] }, { "cite": "1997-NMSC-041", "category": "reporters:neutral", "reporter": "NMSC", "case_ids": [ 142266 ], "weight": 3, "pin_cites": [ { "page": "\u00b6 15" } ], "opinion_index": 0, "case_paths": [ "/nm/123/0752-01" ] }, { "cite": "122 N.M. 537", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 322293 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/nm/122/0537-01" ] }, { "cite": "1996-NMSC-062", "category": "reporters:neutral", "reporter": "NMSC", "pin_cites": [ { "page": "\u00b67" } ], "opinion_index": 0 }, { "cite": "1998-NMSC-046", "category": "reporters:neutral", "reporter": "NMSC", "case_ids": [ 827320 ], "weight": 3, "pin_cites": [ { "page": "\u00b6 6" } ], "opinion_index": 0, "case_paths": [ "/nm/126/0396-01" ] } ], "analysis": { "cardinality": 1343, "char_count": 30902, "ocr_confidence": 0.7, "pagerank": { "raw": 7.363436655315567e-08, "percentile": 0.44174061885461274 }, "sha256": "3102f70dfe07c1e1400da68d0492421ba0163e38fd90fca1b24449b37e8a6b11", "simhash": "1:9f5694ef889340e7", "word_count": 5216 }, "last_updated": "2023-07-14T14:53:47.998828+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "WE CONCUR: LYNN PICKARD, and MICHAEL D. BUSTAMANTE, Judges." ], "parties": [ "David OVECKA and Janice Ovecka, as Co-Personal Representatives of the Estate of Angela Ovecka, Plaintiffs-Appellants, v. BURLINGTON NORTHERN SANTA FE RAILWAY COMPANY, Defendant-Appellee." ], "opinions": [ { "text": "OPINION\nKENNEDY, Judge.\n{1} Plaintiffs appeal from the district court\u2019s grant of summary judgment in favor of Defendant Burlington Northern Santa Fe Railway Company (BNSF) on Plaintiffs\u2019 claims of vicarious and direct liability for negligence. Plaintiffs\u2019 daughter, Angela Ovecka, was killed in an automobile collision with BNSF\u2019s employee, Kenneth Long. Long was highly intoxicated at the time of the accident. Both factually and procedurally, Long had \u201cleft\u201d his employment on the afternoon preceding the collision, though he was scheduled to work the following morning. Applying our standard of review viewing the facts in the light most favorable to Plaintiffs, we hold that the record does not create a question of fact as to whether Long was acting in the course and scope of his employment sufficient to avoid summary judgment based on vicarious liability or to establish, as a matter of law, a question of sufficient negligence to allow Plaintiffs\u2019 direct liability claim to survive. We affirm.\nFACTS AND PROCEDURAL BACKGROUND\n{2} The facts in this case are not in dispute. Long was a member of a mobile surfacing gang employed by BNSF. He had previous problems with alcohol, including a previous DWI conviction in 1997 and inpatient treatment for alcoholism through self-referral to BNSF\u2019s confidential employee assistance program in 1997, following the DWI. In 1999, after he reported for work drunk at 8:30 in the morning with a blood alcohol content at 0.226, BNSF suspended Long and again sent him to treatment. Between 1999 and 2000, BNSF subjected Long to random alcohol tests at work, which he passed. In 2003, Long\u2019s supervisor smelled alcohol about Long\u2019s person on one or two occasions, and in that year a co-worker also reported to a foreman that Long had an odor of alcohol. Word of these incidents was not relayed up the supervisory ladder, and BNSF took no personnel action with regard to Long. In 2002, Long was arrested for DWI and was convicted in 2003; he lost his driver\u2019s license as a result but did not report its revocation to BNSF.\n{3} Long primarily worked in an area between Belen and Grants, New Mexico. As a result, he had to travel to get to his job sites. For employees who drove themselves to work, BNSF paid mileage between work sites. Employees were also paid regular hourly pay to travel from destination to destination. In addition, employees were paid a \u201cweekend travel allowance\u201d for one trip home from the work site each weekend. BNSF maintained hotel rooms in Grants and Belen for its employees who lived more than thirty miles from a job site. By written company policy, BNSF employees were supposed to inform their foremen that they needed a hotel room, and a foreman would make the reservations, though employees often made their own reservations.\n{4} On Friday, August 1, 2003, Long was working on railroad tracks in the Rio Puerco valley west of Los Lunas when he was notified that he was expected at a site near Grants to begin work on a rail grinder at 5:00 a.m. the next morning. Had Long driven from Rio Puerco to the hotel in Grants and thence to the Saturday job site, BNSF would have paid mileage from his work site to the hotel and from the hotel to the August 2nd work site. If he went home after the August 2nd job and returned to work the next week, he would also have been eligible for a weekend allowance, which was calculated on a zip-code-to-zip-code basis.\n{5} Although Long did not always drive to the places where he worked, this time he had driven his sister\u2019s uninsured car to the Rio Puerco work site on the morning of August 1st and left for Grants when his work was done, between 3:30 and 4:00 p.m. He made no reservations for a room at the hotel in Grants.\n{6} Once in Grants, Long picked up groceries and a 12-pack of beer and then continued heading west toward Gallup, in the opposite direction from the work site. He took the groceries to family members (whom he was restrained from contacting) in Thoreau. He arrived at a cousin\u2019s house near Gallup at about 5:30 p.m. Long was extremely distraught concerning his estrangement from his family, and he cried and prayed with his cousin. At about 7:00 p.m., he left his cousin\u2019s house, intending to visit his father before heading to Grants. At about 7:30 p.m., Long\u2019s sister and brother-in-law saw Long enter 1-40 at the Manuelito interchange west of Gallup. At about 9:00 p.m., Long was spotted driving erratically eastward back toward Grants when his car crossed the median and pursued a path straight into westbound traffic, colliding head-on with the car driven by Ovecka. A witness reported seeing no brake lights prior to the crash. Both Ovecka and Long were killed in the crash. In all, Long\u2019s travels took him about 85 miles west of Grants and back, with the crash occurring 35 miles west of Grants as he traveled east from the Gallup area. Subsequent toxicology indicated Long\u2019s blood alcohol content to be 0.362.\n{7} Plaintiffs\u2019 suit against BNSF alleged that at the time of the accident Long was an employee acting in the scope and course of his employment. An additional count alleged direct negligence in that BNSF \u201cknew or should have known of Long\u2019s history of chronic alcohol abuse\u201d and that BNSF had breached a \u201cduty of due care to persons such as ... Ovecka who could be expected to be traveling on the same public highways\u201d as Long. The complaint further alleged that BNSF \u201crequired Long to drive himself to job assignments ... when it might reasonably be expected that Long\u201d would be intoxicated, \u201cgiven [Long\u2019s] alcoholic history and unsuccessful alcoholic rehabilitation.\u201d The district court granted summary judgment to BNSF, and Plaintiffs appeal.\nSTANDARD OF REVIEW\n{8} We review the district court\u2019s grant of summary judgment de novo. Self v. United Parcel Serv., Inc., 1998-NMSC-046, \u00b6 6, 126 N.M. 396, 970 P.2d 582. \u201cSummary judgment is proper when there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law.\u201d Ciup v. Chevron U.S.A., Inc., 1996-NMSC-062, \u00b67, 122 N.M. 537, 928 P.2d 263. On review, \u201cwe examine the whole record for any evidence that places a genuine issue of material fact in dispute,\u201d Rummel v. Lexington Ins. Co., 1997-NMSC-041, \u00b6 15, 123 N.M. 752, 945 P.2d 970, and we view the facts in a light most favorable to the party opposing the motion and draw all reasonable inferences in support of a trial on the merits. Silverman v. Progressive Broad., Inc., 1998-NMCA-107, \u00b6 7, 125 N.M. 500, 964 P.2d 61.\nDISCUSSION\nBNSF is Not Vicariously Liable for Ovecka\u2019s Death\n{9} For liability to be imposed upon BNSF in respondeat superior as Long\u2019s employer, Ovecka\u2019s injury must have been inflicted by Long when Long was acting in the course and scope of his employment with BNSF. Ocana v. Am. Furniture Co., 2004-NMSC-018, \u00b6 29, 135 N.M. 539, 91 P.3d 58; see Medina v. Graham\u2019s Cowboys, Inc., 113 N.M. 471, 475, 827 P.2d 859, 863 (Ct.App. 1992). Generally, whether an employee was acting within the scope of his employment is a question of fact for the jury, as Plaintiffs urge. McCauley v. Ray, 80 N.M. 171, 180-81, 453 P.2d 192, 201-02 (1968). But when no facts are in dispute and the undisputed facts lend themselves to only one conclusion, the issue may properly be decided as a matter of law. Medina v. Fuller, 1999-NMCA-011, \u00b6 22, 126 N.M. 460, 971 P.2d 851. This is such a case.\n{10} The parties contest whether Long had abandoned the scope and course of his employment upon his departure from Grants. We recognize that a person can leave the scope and course of his employment and later return to it. Carter v. Burn Constr. Co., 85 N.M. 27, 30, 508 P.2d 1324, 1327 (Ct.App.1973). When we analyze BNSF\u2019s vicarious liability for Long\u2019s actions, we look at whether driving a car at the time of the incident was something sufficiently related to Long\u2019s employment as to allow a conclusion that driving was an activity Long would undertake within the scope and course of his employment at the time of the accident. Plaintiffs urge us to hold that upon telling his brother that he intended to go back to the hotel after visiting his father and getting on eastbound 1-40 at Manuelito, Long had returned to the scope and purpose of his employment sufficiently to give rise to BNSF\u2019s liability for his actions. We disagree.\nWorkers\u2019 Compensation Provides an Inadequate Model For Assessing Vicarious Liability Although Workers\u2019 Compensation Cases Are Helpful in the Analysis\n{11} Carter was a workers\u2019 compensation case. Id. at 29, 508 P.2d at 1325. In our recent Lessard opinion, which is the New Mexico case closest to this case on the facts, we observed that workers\u2019 compensation and tort law concepts should not be conflated because of different policies and analyses, but we did not further explain our rationale. Lessard v. Coronado Paint & Decorating Ctr., Inc., 2007-NMCA-122, \u00b6 7, 142 N.M. 583, 168 P.3d 155, cert. quashed, 2008-NMCERT-002, 143 N.M. 667, 180 P.3d 674. The distinction lies in the scope and policy of the two bodies of law.\n{12} \u201cThe [Workers\u2019 Compensation] Act fulfills [its] purpose through a bargain in which an injured worker gives up his or her right to sue the employer for damages in return for an expedient settlement covering medical expenses and wage benefits, while the employer gives up its defenses in return for immunity from a tort claim.\u201d Morales v. Reynolds, 2004-NMCA-098, \u00b6 6, 136 N.M. 280, 97 P.3d 612. Vicarious liability exists in the common law to impute responsibility in tort upon a master for tortious conduct by an agent while doing the master\u2019s work. See Ocana, 2004-NMSC-018, \u00b629, 135 N.M. 539, 91 P.3d 58. In contrast to workers\u2019 compensation law, in tort law, the injured party does not have the economic relationship with the employer that necessitates an expedited form of claim adjudication, an exchange of fault for injury for liability arising for any work-related injury, and a limitation on employer liability. Thus, the expanded imposition of liability in workers\u2019 compensation law does not transfer readily to the common law of torts.\n{13} In this case, as in Lessard, Plaintiffs have used various legal theories applicable to workers\u2019 compensation cases to make their point concerning the scope and course of employment. In Lessard, the \u2018\u201cgoing and coming rule\u2019 \u201d that precludes compensating an employee for injuries sustained coming to or going from work was noted to resemble similar holdings in tort law, but this Court recognized different policies underlying workers\u2019 compensation and tort law. Id. \u00b6 9. We concluded that scope and course of employment analyses were different in these two areas of law, and we declined to use the term \u201cgoing and coming rule\u201d in the tort context. Id. Similarly, Plaintiffs here have invoked workers\u2019 compensation cases involving \u201ctraveling employees,\u201d who, while on the road, are \u201cconsidered to be acting within the [course and] scope of [their] employment,\u201d to bring into play an exception to the \u201cgoing and coming rule.\u201d E.g., Ramirez v. Dawson Prod. Partners, Inc., 2000-NMCA-011, \u00b6 14, 128 N.M. 601, 995 P.2d 1043. We conclude that the workers\u2019 compensation cases involving \u201ctraveling employees\u201d are not helpful to our analysis of common-law vicarious liability.\nLong\u2019s Driving at the Time of the Accident Did Not Occur Within the Scope and Course of His Employment\n{14} The course and scope of employment are determined with reference to the \u201ctime, place, and circumstances under which the injury occurred.\u201d Ramirez, 2000-NMCA-011, \u00b6 14, 128 N.M. 601, 995 P.2d 1043 (internal quotation marks and citation omitted). Generally, \u201can employee enroute [sic] to, or returning from, his place of employment, using his own vehicle is not within the scope of his employment absent additional circumstances evidencing control by the employer at the time of the negligent act or omission of the employee.\u201d Nabors v. Harwood Homes, Inc., 77 N.M. 406, 408, 423 P.2d 602, 603 (1967).\n{15} We draw upon three sources \u2014 common law, a uniform jury instruction, and a restatement of the law \u2014 to evaluate what actions are within the course and scope of employment. First, in Lessard, the common law source, we affirmed the adoption of a four-point test \u201cto determine whether an employee\u2019s acts were performed within the scope of employment.\u201d Lessard, 2007-NMCA-122, \u00b6 12, 142 N.M. 583, 168 P.3d 155.\nAn employee\u2019s action, although unauthorized, is considered to be in the scope of employment if the action (1) is the kind the employee is employed to perform; (2) occurs during a period reasonably connected to the authorized employment period; (3) occurs in an area reasonably close to the authorized area; and (4) is actuated, at least in part, by a purpose to serve the employer.\nId. (internal quotation marks and citation omitted); see Narney v. Daniels, 115 N.M. 41, 49, 846 P.2d 347, 355 (Ct.App.1992). Second, our jury instructions distill this concept somewhat, talking about liability arising from an act that is \u201cfairly and naturally incidental to the employer\u2019s business assigned to the employee, ... done while the employee was engaged in the employer\u2019s business with the view of furthering the employer\u2019s interest!}] and did not arise entirely from some external, independent and personal motive on the part of the employee.\u201d UJI 13^07 NMRA. Finally, the Restatement (Third) of Agency \u00a7 7.07(2) (2006) includes an element of the course of the employee\u2019s conduct being under the employer\u2019s control and not undertaken as an independent \u201ccourse of conduct not intended by the employee to serve any purpose of the employer.\u201d\n{16} In Nabors, a supervisor driving his personal truck to a work site on a Sunday was held to be not furthering his employer\u2019s business at the time of the accident because he had not been asked to go there and had not yet arrived at the work site. Nabors, 77 N.M. at 407-08, 423 P.2d at 602-03. In Lessard, we clarified the holding in Nabors and in Bolt v. Davis, 70 N.M. 449, 464, 374 P.2d 648, 658 (1962),\nidentifying three circumstances that must exist in order to impose vicarious liability on an employer for an employee\u2019s negligent actions in driving a personal vehicle to and from work: (1) the employer must expressly or impliedly consent to the use of the vehicle; (2) the employer must have the right to control the employee in his operation of the vehicle, or the employee\u2019s use of the vehicle must be so important to the business of the employer that such control could be inferred; and (3) the employee must be engaged at the time in furthering the employer\u2019s business.\nLessard, 2007-NMCA-122, \u00b614, 142 N.M. 583,168 P.3d 155.\n{17} Turning to the first circumstance, consent, Plaintiffs assert both that driving to work locations was a necessary aspect of Long\u2019s job and that driving was \u201cauthorized.\u201d While we question the necessity of driving, there was enough evidence that BNSF consented to Long\u2019s driving in that it paid mileage between work sites and the weekend allowance, thereby recognizing that driving promoted its business interests to some extent.\n{18} The second issue concerning the employer\u2019s control over the instrumentality by which the injury was inflicted is a far greater problem for Plaintiff in this ease. The amount of direct control exerted by BNSF on its driving employees \u2014 paying for mileage \u2014 is de minimis. In comparison, the employee\u2019s truck in Lessard, was indispensable to his work for his employer, and we still ruled that the employee was not in the course and scope of his employment when he was driving home from work. He drove his truck to and from work sites as required and determined by his employment, and he was required to insure the vehicle with the employer listed as an insured. Lessard, 2007-NMCA-122, \u00b6\u00b6 17-18,142 N.M. 583,168 P.3d 155. The employee in Lessard was furnished with a cell phone to \u201ckeep in touch\u201d with his employer. Id. \u00b6 19. As in Nabors, however, the fact that the employee was not directly pursuing any duties for his employer or employer\u2019s clients at the time of his accident precluded our regarding the driving as being in furtherance of the employer\u2019s business. In Lessard, we held that driving home was conduct arising entirely from \u201cexternal, independent and personal motive.\u201d Lessard, 2007-NMCA-122, \u00b620, 142 N.M. 583, 168 P.3d 155 (quoting UJI 13-407(2)). As a result, we affirmed the summary judgment, holding that as a matter of law no jury could reasonably infer that the employee was acting within the scope of his employment. Lessard, 2007-NMCA-122, \u00b619, 142 N.M. 583,168 P.3d 155.\n{19} In contrast to the close relationship between the employee\u2019s driving and his employer\u2019s business in Lessard, Long\u2019s driving was not a core part of his employment as a member of a track resurfacing crew on the railroad. BNSF\u2019s control over Long\u2019s driving was limited to paying for miles traveled that were work-related. We hold that no reasonable jury could find that Long\u2019s driving was of such importance to BNSF\u2019s work that control by BNSF should or could be inferred. See Lessard, 2007-NMCA-122, \u00b6 14,142 N.M. 583,168 P.3d 155.\nHaving Abandoned His Employment, Long Did Not Return To It\n{20} We believe for the same reasons as in Lessard, and for reasons shown more strongly in this case, that upon Long\u2019s driving from Grants, his driving ceased to be an activity that furthered any business interest of BNSF. However, we will examine Plaintiffs claim that somehow Long had \u201creturned\u201d to the scope and course of his employment after he left his cousin\u2019s house.\n{21} An employee can abandon the scope and course of his employment, and under certain circumstances return to it after a \u201cminor deviation\u201d from the route associated with his employment. See City of Santa Fe v. Hernandez, 97 N.M. 765, 766, 643 P.2d 851, 852 (1982); see also Carter, 85 N.M. at 30, 508 P.2d at 1327 (holding that a minor deviation for personal reasons is outside the scope of employment, but recognizing that employees can return to its course and scope). We hold that a deviation occurred; it is from this deviation that Plaintiffs urge us to consider that Long returned to the scope and course of his employment.\n{22} Plaintiffs argue that upon leaving his cousin\u2019s house, stating that he intended to return to Grants prior to going to work the following morning, Long had returned to the course and scope of his employment. We disagree with Plaintiffs\u2019 view of this case, holding that Long\u2019s extended trip to the Gallup area, pursuing personal business with family members and imbibing enough alcohol to render him severely intoxicated, did not allow him to return to the scope and course of his employment by the time of the collision. His activities had nothing to do with his job. Returning to the course of his employment would have required Long to meet the four criteria required for an employee to be within the scope of employment. His actions would have to (1) be the kind the employee is employed to perform; (2) occur during a period reasonably connected to the authorized employment period; (3) occur in an area reasonably close to the authorized area; and (4) be actuated, at least in part, by a purpose to serve the employer. Lessard, 2007-NMCA-122, \u00b6 12, 142 N.M. 583, 168 P.3d 155. In short, returning to employment requires the employee acting in such a way as to again commence being \u201cboth under the employer\u2019s control and furthering the employer\u2019s purpose\u201d at the time of the incident. Fuller, 1999-NMCA-011, \u00b6 18, 126 N.M. 460, 971 P.2d 851. No jury could disagree that this case does not involve conduct in concert with the goals and terms of Long\u2019s employment, nor was it anything over which BNSF had any control. See Morris v. Cartwright, 57 N.M. 328, 332, 258 P.2d 719, 722 (1953) (\u201cIt is fundamental that liability of the master for the use of an automobile by the servant is created only when it appears that its use is with knowledge and consent of the master and that it is used within the scope of employment of the servant and to facilitate the master\u2019s business.\u201d); Bolt, 70 N.M. at 464, 374 P.2d at 658.\n{23} To use the terminology in Carter, there is no doubt that Long accomplished a \u201cmajor deviation\u201d from the course and scope of his employment. Carter, 85 N.M. at 30, 508 P.2d at 1327. The terms of his employment at the very least would have required him to be back in BNSF\u2019s fold sober and prepared to go to work the following morning in order to be entitled to weekend pay. At the time of the collision, he was seriously drunk and away from any physical location related to his employment. Long\u2019s purpose and conduct were his own at the moment of the collision.\n{24} Long\u2019s use of a vehicle was removed from BNSF\u2019s control, his use of the car did not benefit or further BNSF\u2019s business interests, and no material facts or reasonable inferences rise to the occasion of demonstrating that he had returned to his employment at the time of the collision. We hold that none of the undisputed facts impede the district court\u2019s summary judgment that as a matter of law Long had not returned to the course of employment at the time of the crash, and we therefore affirm the district court on the vicarious liability claim.\nAs a Matter of Law, BNSF is Not Liable Under Theories of Negligent Hiring and Supervision of Long\n{25} Plaintiffs also seek reversal of the district court\u2019s summary judgment dismissing their cause grounded in direct negligence stemming from BNSF\u2019s alleged negligent hiring or retention of Long. Long had previous problems involving alcohol, including some that BNSF was aware of and had taken action on. We accept for purposes of argument that BNSF knew or should have known that Long was a person with an alcohol problem that had resulted in his being twice convicted for DWI. We examine whether its employment and retention of Long would subject BNSF to liability. See generally Los Ranchitos v. Tierra Grande, Inc., 116 N.M. 222, 228, 861 P.2d 263, 269 (Ct.App.1993) (holding that \u201c[a]n individual or entity may be held liable in tort for negligent hiring, negligent supervision, or negligent retention of an employee even though it is not responsible for the wrongful acts of the employee under the doctrine of respondeat superior\u201d). We have recently imposed such liability on employers for unsafe workers who are not strictly acting within the course and scope of their employment but whose tortious acts are strongly connected to their job duties. Lessard, 2007-NMCA-122, \u00b6 39, 142 N.M. 583, 168 P.3d 155. We hold that Lessard is distinguishable.\n{26} For an action in negligence to lie, there must be a breach of a recognized duty to a foreseeable plaintiff. Herrera v. Quality Pontiac, 2003-NMSC-018, \u00b6 6, 134 N.M. 43, 73 P.3d 181 (\u201cIn New Mexico, negligence encompasses the concepts of foreseeability of harm to the person injured and ... a duty of care toward that person.\u201d (internal quotation marks and citation omitted)). An employer\u2019s duty to third parties for negligent hiring or retention stems from two factors: foreseeability as to a particular plaintiff and a particular harm, and then, if the particular injury is foreseeable, a consideration of public policy to determine if imposing a duty is supported by law. Lessard, 2007-NMCA-122, \u00b6 30, 142 N.M. 583, 168 P.3d 155.\n{27} In Lessard, we held that the pervasive influence of the employer on the employee\u2019s driving, and the relationship of that influence to the employee being on the street in pursuit of the employer\u2019s interest, made it foreseeable that the employee might have an accident during the work day and established a duty to the motoring public. Id. \u00b6 31. There, the negligent employee lived about one mile from his last work site and was driving directly home from work. Id. \u00b63. There, the employer required the employee to have a vehicle to drive between work sites, provided the employee with a cell phone so that the employer would always be in contact with the employee, and required the employee to carry insurance on the vehicle naming the employer as an additional insured. Id. \u00b6\u00b6 4, 6. Similarly in Raleigh, on which Lessard heavily relied, the employer required the employee to use his vehicle to get to job sites and went so far as to specially equip the employee\u2019s vehicle so that it could carry supplies to the job sites. Raleigh v. Performance Plumbing & Heating, Inc., 130 P.3d 1011, 1020-21 (Colo.2006) (en banc) (Mullarkey, C.J., concurring in part and dissenting in part). Such extensive involvement in requiring an employee to drive while controlling so many aspects of the driving creates a foreseeable risk based on the employment. Such a risk gives rise to a duty.\n{28} While negligence and causal connection are normally questions to be presented to the jury, where reasonable minds cannot differ, the issues are appropriately resolved by the judge. Calkins v. Cox Estates, 110 N.M. 59, 65 n. 6, 792 P.2d 36, 42 n. 6 (1990) (\u201cA court may decide questions of negligence and proximate cause, if no facts are presented that could allow a reasonable jury to find proximate cause[.]\u201d); Spencer v. Health Force, Inc., 2005-NMSC-002, \u00b623, 137 N.M. 64, 107 P.3d 504.\n{29} In Lessard, however, we held that the question of nexus between the plaintiff and the employer was one \u201cof proximate cause and not foreseeability in the context of duty.\u201d Lessard, 2007-NMCA-122, \u00b6 38, 142 N.M. 583, 168 P.3d 155. Without departing from that holding, we evaluate the causal relationship between BNSF\u2019s employment of Long and Ovecka\u2019s death. A salient question is whether the employment of the tortfeasor created the situation where the third person was harmed. Spencer, 2005-NMSC-002, \u00b6 22, 137 N.M. 64, 107 P.3d 504. It must be the negligent hiring or retention of an employee that becomes the \u201cefficient cause\u201d that sets in motion the circumstances leading to the injury. Gaines v. Monsanto Co., 655 S.W.2d 568, 571 (Mo.Ct.App.1983). The causal connection must include negligence in \u201cselecting or controlling an actor, the actor\u2019s employment or work, and the harm suffered by the third party.\u201d Restatement (Third) of Agency \u00a7 7.05 cmt. c, illus. 5 (2006); Lessard, 2007-NMCA-122, \u00b6 38, 142 N.M. 583, 168 P.3d 155. BNSF must have employed Long in a position that would foreseeably create a traceable risk of harm to others because of Long\u2019s hiring by BNSF. Spencer, 2005-NMSC-002, \u00b6 10,137 N.M. 64,107 P.3d 504.\n{30} We have recognized the connection between giving an employee with a disposition to tortious conduct a job from which he could follow that disposition to the point of injuring others. In Namey, where the Roswell Police Department knew or should have known that its officer was mentally unstable, yet encouraged him both to leave town on a break from his duties and carry his badge and gun, we held that the Department had enough of a hand in creating the place (anywhere the officer might be on the trip) in which and means (his badge and gun) by which the injury could occur that it would be liable to persons injured by an encounter with its officer, even two hundred miles away from home. Narney, 115 N.M. at 52-53, 846 P.2d at 358-59. In Graham\u2019s Cowboys, the off-duty bouncer with a history of fights who injured a bar patron was present at his employer\u2019s request. The employer provided both the physical zone where the injury was inflicted (the place of employment) and the means by which their negligently retained employee would inflict it (asking the bouncer to stay on premises). Graham\u2019s Cowboys, 113 N.M. at 472-73, 827 P.2d at 860-61. Similarly in Valdez, we held that the fact of a connection between the employer\u2019s business and the plaintiff that brought the plaintiff into contact with the negligently retained employee who was the proximate cause of the injury justified reversing a directed verdict in a case where an employee with propensities for drink and violence injured a patron in the parking lot of the employment premises. Valdez, 106 N.M. at 308, 742 P.2d at 520. The employer\u2019s business itself must bring a potential plaintiff both into a physical zone of foreseeable danger and in contact with the employee.\n{31} It is the scope and duties of a job that frame the expectations of conduct for the employer with regard to possible harm to third parties. Long\u2019s job with BNSF did not require him to drive and did not place him eastbound on 1-40 by the Continental Divide exit where he killed Ovecka, nor did it play a part in Ovecka being in a place where BNSF could reasonably anticipate her injury as a result of employing someone like Long who had alcohol and DWI problems. It is not alleged either that Long was drunk or that BNSF knew or should have known that Long was drunk or had been drinking from when he left the Rio Puerco job site to when he arrived in Grants, where he departed from the course of his employment. The only evidence of Long\u2019s connection to alcohol and drinking in this case occurs after he arrived in Grants and began carrying out his personal business. That BNSF might have consented to Long\u2019s driving as mentioned in the previous section does not rise to the level of involvement in the driving that was present in Lessard and Raleigh and does not operate to extend its duty to driving that has nothing but a personal purpose under these circumstances.\n{32} Plaintiff overstates the evidence by calling Long\u2019s trip from Grants an \u201cauthorized visit\u201d home which was part of BNSF\u2019s \u201cpolicies allowing mobile employees to drive from remote work locations to their homes over weekend break times.\u201d First, the summary judgment evidence does not allow that the trip home was a weekend break inasmuch as it was between two work days for Long. Second, it was by time and circumstances so removed from the employment that an employer cannot be held to reasonably bear responsibility for it.\n{33} We hold that as a matter of law BNSF\u2019s retention of Long cannot reasonably be seen as a proximate cause of Ovecka\u2019s death.\nCONCLUSION\n{34} The grant of summary judgment to BNSF is affirmed.\n{35} IT IS SO ORDERED.\nWE CONCUR: LYNN PICKARD, and MICHAEL D. BUSTAMANTE, Judges.", "type": "majority", "author": "KENNEDY, Judge." } ], "attorneys": [ "Rodey, Dickason, Sloan, Akin & Robb, P.A., Bruce Hall, W. Mark Mowery, Theresa W. Parrish, Edward Ricco, Jocelyn Drennan, Albuquerque, NM, for Appellants.", "Atkinson & Thai, P.C., John S. Thai, Michael Kaemper, Elizabeth Losee, Albuquerque, NM, for Appellee.", "Modrall, Sperling, Roehl, Harris & Sisk, P.A., John R. Cooney, Emil J. Kiehne, Albuquerque, NM, for Association of Commerce & Industry of N.M., Amicus Curiae." ], "corrections": "", "head_matter": "2008-NMCA-140\n194 P.3d 728\nDavid OVECKA and Janice Ovecka, as Co-Personal Representatives of the Estate of Angela Ovecka, Plaintiffs-Appellants, v. BURLINGTON NORTHERN SANTA FE RAILWAY COMPANY, Defendant-Appellee.\nNo. 26,449.\nCourt of Appeals of New Mexico.\nJuly 9, 2008.\nCertiorari Granted, No. 31,232, Oct. 6,2008.\nRodey, Dickason, Sloan, Akin & Robb, P.A., Bruce Hall, W. Mark Mowery, Theresa W. Parrish, Edward Ricco, Jocelyn Drennan, Albuquerque, NM, for Appellants.\nAtkinson & Thai, P.C., John S. Thai, Michael Kaemper, Elizabeth Losee, Albuquerque, NM, for Appellee.\nModrall, Sperling, Roehl, Harris & Sisk, P.A., John R. Cooney, Emil J. Kiehne, Albuquerque, NM, for Association of Commerce & Industry of N.M., Amicus Curiae." }, "file_name": "0113-01", "first_page_order": 147, "last_page_order": 156 }