Appeal from the United States District Court for the Western District of Wisconsin, No. 83-C-910-C, Barbara B. Crabb, Judge.
Before Wood and Posner, Circuit Judges, and Weigel, Senior District Judge.*fn*
WEIGEL, Senior District Judge.
Plaintiff-appellant Rickey Stephenson brought this action against defendant-appellee United States of America (the "government"), to recover for injuries sustained when he was struck by a government vehicle driven by a government employee. The district court determined that the employee was not acting within the scope of his employment at the time of the accident, and dismissed the action.
Sergeant Anthony Green ("Green") was employed as a recruiter by the United States Marine Corps at its Beloit, Wisconsin office. Each working day, he drove a government vehicle from the Marine Corps' Janesville, Wisconsin recruiting substation to Beloit. There he used the vehicle for government work. Each evening, he was required to return the vehicle to the Janesville substation which was near his home.
On August 9, 1982, Green drove a government vehicle from the Janesville substation to his government office in Beloit. There, he met with Pauline Lawson ("Lawson"), a high school counselor, to discuss recruitment plans. She invited Green to make a social call at her home that evening.
At about 5:00 p.m., Green left the Beloit office and walked to a nearby bar, where he drank three or four beers. Military regulations forbade him from consuming alcohol while on duty. They also forbade consuming alcohol within 8 hours prior to operating a government vehicle and using the vehicle for personal business. Upon returning to the office, he got into a fight with another serviceman. He left the Beloit office in the government car, and arrived at Lawson's residence at about 6:00 p.m. His trip took him off the route he normally used to return to Janesville.
At Lawson's, Green consumed another beer and discussed personal matters.*fn1 He left Lawson's at about 9:30 p.m., and began his return trip to Janesville. While en route, his vehicle collided with applicant. At the time of the accident, Green's blood alcohol content exceeded the level permitted by Wisconsin law.
Appellant sued the government to recover for injuries sustained in his collision with Green. Pursuant to the district court's order that they stipulate to all uncontested facts, the parties agreed that Green was traveling on his customary route back to Janesville when the accident occurred, and that he had intended to return the government vehicle to the recruiting substation. The district court determined that Green was not acting within the scope of his employment at the time of the accident, and that the government was therefore not liable for injuries he may have caused.
Under Wisconsin law, an employer is liable for injuries caused by the negligent acts of its employee if the employee was acting "'within the scope of his employment' at the point in time and place involved in plaintiff's claim." Finsland v. Phillips Petroleum Co., 57 Wis. 2d 267, 272, 204 N.W.2d 1, 3-4 (1973). An employee's acts fall within the scope of his employment where (1) the act was part of or reasonably incidental to the duties he was hired, directed, or expected to perform, and (2) the act was intended to benefit the employer. Hibma v. Odegaard, 576 F. Supp. 1549, 1553 (W.D. Wis. 1984).
The record shows that Green deviated from his employer's business in going to the bar, consuming alcoholic beverages, fighting, and driving to Lawson's for a personal visit. However, appellant contends that Green was acting within the scope of his employment at the time of the accident because, in returning the government vehicle to Janesville, he was doing an act that he was directed to perform and that was intended to benefit the government. Appellant emphasizes that Green was required to return the vehicle to the Janesville substation that evening, and that the government benefited from the vehicle's return in several ways.*fn2
The district court rejected the notion that Green, having deviated from his employer's business, could resume the master-servant relationship by driving the government car back to Janesville. The court found that Green was not acting for the government's benefit at the time of the accident because it was not clear he was returning the car to the Janesville substation, but that it was "just as probable that he was going to take the car home."*fn3 However, the parties had previously stipulated that Green intended to return the car to the Janesville substation at the time of the accident. The court stated that it was "adopting the facts stipulated to by the parties." The district court erred in disregarding one of the stipulated facts without explanation. See Brown v. ...