United States District Court, Central District of Illinois, Springfield Division
February 6, 1991
KERRI W. SNODGRASS AND STACEY L. BECKER, PLAINTIFFS,
THOMAS F. JONES, DEFENDANT.
The opinion of the court was delivered by: Richard Mills, District Judge:
Thomas F. Jones was the Special Agent in Charge (SAC) of the
Springfield, Illinois, office of the Federal Bureau of
Investigation (FBI) on October 17, 1986. Shortly after 1:00
a.m., on Interstate 55 just south of Springfield, Jones struck
an automobile driven by Kerri W. Snodgrass in which Stacey L.
Becker was a passenger.
Based upon the police reports, interrogatories, and
statements by both Plaintiffs and Defendant, the events leading
up to and following this collision are as follows.
On the evening of October 16, 1986, Jones left work at the
FBI office in Springfield driving a Government-owned
automobile. As the SAC, Jones was issued a radio-equipped
vehicle for his use because he was "on-call" 24 hours a day and
often would proceed directly from his home or other location to
the office or crime scene in the course of his duties. After
leaving the office, Jones stopped for dinner then proceeded to
a Bar and Grill in downtown Springfield called "Play it Again
Sam." Five hours later, at approximately 1:00 a.m., Jones left
the bar and proceeded to drive south out on Interstate 55.
Slightly north of the Toronto Road exit located at mile
marker 91, Jones' vehicle collided with the rear-end of the
vehicle occupied by Snodgrass and Becker. Both vehicles pulled
off the Interstate at an exit and stopped. The Plaintiffs
copied the license number of Jones' vehicle as Defendant was
getting out of his car. Jones then began walking toward
Plaintiffs' car and reached inside his suit jacket. Plaintiffs,
fearing that Jones was reaching for a gun, left the scene and
proceeded directly to the Illinois State Police District 09
Headquarters nearby, arriving at 1:18 a.m.
At approximately 4:00 a.m. Trooper Kraft located a vehicle
bearing the license number provided by Plaintiffs. The officer
observed that the vehicle had front-end damage. Trooper
Tarkington then located Jones who initially denied having been
in an accident. However, when confronted with the damage to his
car, Jones recanted and stated that he remembered hitting
another vehicle on Interstate 55.
Thereafter, Plaintiffs filed an action against Jones on April
28, 1987, in Sangamon County Circuit Court for injuries and
damages they sustained as a result of the collision. Jones
sought to remove the action to this Court pursuant to the
Federal Drivers Act, 28 U.S.C. § 2679(b)-(e), which was part of
the Federal Tort Claims Act, id. § 2671 et seq.
On July 13, 1988, this Court held that Jones was not acting
within the scope of his employment at the time of the accident
and remanded the case to state court pursuant to 28 U.S.C. § 1447(c).
Jones' motion for reconsideration was subsequently
denied on the basis of lack of jurisdiction. See New Orleans
Public Serv., Inc. v. Majoue, 802 F.2d 166
, 167 (5th Cir.
Four months after we remanded this case to state court,
Congress amended the Federal Tort Claims Act and vested
authority for determining whether an employee was acting within
the scope of his office or employment solely with the Attorney
General.*fn2 Jones' request to the Attorney General for
certification pursuant to
§ 2679(d)(2) *fn3 was denied. Upon denial of his request by
the Attorney General Jones filed a petition with the state
court pursuant to § 2679(d)(3) seeking certification that he
was acting within the scope of his employment at the time of
the accident. The Attorney General has now removed Jones'
petition to this Court pursuant to § 2679(d)(3).*fn4
Jones' first argument in his petition for certification is
that this Court lacked authority to consider the question of
whether he acted within the scope of his employment after the
Attorney General removed this suit and certified that he was
within the scope of his employment. This argument is completely
meritless. The present version of § 2679 was not signed into
law until November, 1988, four months after this case was
remanded. The prior version of § 2679, known as the Driver's
Act, explicitly required remand whenever a court found that an
individual had acted outside the scope of his employment.*fn5
In our prior order remanding this case to the state court, we
held that Jones was acting outside the scope of his employment
at the time of the accident and could not shield "himself
behind the United States Government for actions occurring in
his personal life. . . ." Jones now wishes to reargue this
question in the hope that he will obtain a different result.
Thus, we must first determine whether we are bound by the
doctrine of the law of the case from reexamining this question.
The law of the case doctrine is a "rule of practice, based on
sound policy that, when an issue is once litigated and decided,
that should be the end of the matter." Evans v. Chicago,
873 F.2d 1007, 1014 (7th Cir. 1989) (citing United States v. United
States Smelting, Refining & Mining Co., 339 U.S. 186, 198, 70
S.Ct. 537, 544, 94 L.Ed. 750 (1950)), cert. denied, ___ U.S.
___, 110 S.Ct. 2560, 109 L.Ed.2d 742 (1990). Thus, this
doctrine is a prudential one and does not limit the Court's
power to reconsider earlier rulings in a case. 1B Moore's
Federal Practice ¶ 0.404[4.-1], at 126 (1988). Therefore, we
clearly have the power to reconsider our prior ruling if we
determine that it was erroneous.
In Illinois "[n]o precise definition has been accorded the
term `scope of employment,' but broad criteria have been
(1) Conduct of a servant is within the scope of
employment if, but only if:
(a) it is of the kind he is employed to perform;
(b) it occurs substantially within the
authorized time and space limits; [and] (c) it
is actuated, at least in part, by a purpose to
serve the master, . . .
(2) Conduct of a servant is not within the scope
of employment if it is different in kind from that
authorized, far beyond the authorized time or
space limits, or too little actuated by a purpose
to serve the master.
Pyne v. Witmer, 129 Ill.2d 351, 135 Ill.Dec. 557, 561,
543 N.E.2d 1304, 1308 (1989) (quoting Restatement (Second) of
Agency § 228 (1958)). The burden is on the party seeking to
establish scope of employment to show the "contemporaneous
between tortious act and scope of employment." Id. 135 Ill.Dec.
at 562, 543 N.E.2d at 1309. When the facts are not in dispute
the issue of whether an employee's deviation exceeded his scope
of employment is a question of law for the court. Id.
Illinois recognizes the distinction between frolic (pursuit
of an employee's personal business unrelated to employment) and
detour (an employee's deviation for personal reasons that is
nonetheless seen as sufficiently related to employment). Id.
Our prior order remanding this case to state court held that at
the time of the accident Jones was engaged in a frolic of his
In support of his petition for certification, Jones cites two
cases for the general rule that
an employee's activities are within the scope of
employment if, while traveling to or from work
outside actual working hours, the employee is
using employer-provided transportation which
expanded his range of employment for the
See Hood v. Industrial Comm'n, 158 Ill. App.3d 81, 109 Ill.Dec.
840, 510 N.E.2d 908 (5th Dist. 1987); Stevenson Olds Sales v.
Industrial Comm'n, 140 Ill. App.3d 703, 95 Ill.Dec. 107,
489 N.E.2d 328
(3d Dist. 1986). To bring himself within this rule,
Jones argues that he was a government employee, driving a
government-owned vehicle which he had been authorized to use to
maintain an emergency response capability, and at the time of
the accident he was headed home along his usual route.
In Hood, the petitioner was employed by his father's company
in rural Sparta, Illinois, to manage employees, pick up
supplies, and run errands. The company furnished a 1982 Camaro
for petitioner's use and paid for its fuel and insurance as
well as an hourly rate for petitioner's travel time. On the
weekend prior to December 27, 1982, petitioner was instructed
to fill nitrous oxide tanks on his next trip to St. Louis.
On the morning of December 27, petitioner took the Camaro to
a body shop in Red Bud to obtain a repair estimate and was told
to return later for a written estimate. Petitioner then picked
up three friends (as he was authorized to do), drove to St.
Louis to fill the nitrous oxide tanks, stopped at a music store
and a McDonald's for lunch, then headed back to Red Bud to
obtain the written estimate. On his way back, petitioner was
involved in an automobile accident and injured.
The Hood court, after citing Stevenson for the rule quoted
above, held that petitioner was on company business at the time
of his accident, that his minor deviations were
inconsequential, reasonable and foreseeable, and that he was
acting within the scope of his employment at the time of his
accident. Hood, 158 Ill. App.3d at 84, 109 Ill.Dec. 840,
510 N.E.2d 908. The facts of Hood are readily distinguishable from
those sub judice.
In Stevenson, petitioner's decedent worked as the service
manager for an automobile dealership for 27 years. The
dealership provided decedent, as it did several other
employees, with an automobile for business and personal use.
Decedent occasionally loaned his assigned car to customers
while their automobiles were being repaired. On his way home
from work one evening while driving his assigned car decedent
was killed in an automobile accident.
The Stevenson majority held that decedent was within the
scope of his employment at the time of the accident because the
company benefited from decedent's driving a company car between
his residence and workplace. As support for the rule quoted
above, the court cited Hindle v. Dillbeck, 68 Ill.2d 309, 12
Ill.Dec. 542, 370 N.E.2d 165 (1977); and Sjostrom v. Sproule,
49 Ill. App.2d 451, 200 N.E.2d 19 (1964), aff'd, 33 Ill.2d 40,
210 N.E.2d 209 (1965).
In dissent, Presiding Justice Webber reasoned that
Hindle and Sjostrom did not support the rule followed by the
majority because in both those cases "the trip was being made
to the assigned jobsite on account of the exigencies of the
employment and the employer exercised control over the means of
transportation." Stevenson, 140 Ill. App.3d at 706, 95 Ill.Dec.
107, 489 N.E.2d 328 (Webber, P.J., dissenting). This Court
agrees with Justice Webber's
dissenting opinion and adopts his reasoning. Hence,
Stevenson, the only case which arguably supports Jones'
argument in this case, relied upon two decisions which do not
support its holding.
As this Court recognized in its prior order remanding this
case to state court, Jones seems to be arguing that because he
drives a radio-equipped automobile owned by the Government and
is susceptible to being called in 24 hours a day, "any time he
goes anywhere, for any purpose, he can claim that he is acting
within the scope of his employment." Clearly this
interpretation would be stretching the meaning of the doctrine
too far. Thus, we must reaffirm our prior ruling and conclude
that Jones was engaged in a frolic of his own and was therefore
outside the scope of his office or employment.
Following our prior ruling Jones moved for reconsideration,
arguing that we did not address the question of whether,
conceding that he was on a frolic, he had returned to the scope
of his employment at the time of the accident. We declined to
address this argument because we no longer had jurisdiction
over the case following our remand to state court. Jones has
once again raised this question which we can now address on the
The test for determining whether an employee who has engaged
in a frolic has reentered his scope of employment is
two-pronged: first, the employee must have formulated an intent
to act in furtherance of his employer's business; second, the
intent must be coupled with a reasonable connection in time and
space with the work in which he should be engaged. Prince v.
Atchison, Topeka & Santa Fe Railway, 76 Ill. App.3d 898, 903,
32 Ill.Dec. 362, 366, 395 N.E.2d 592, 596 (1979); Boehmer v.
Norton, 328 Ill. App. 17, 65 N.E.2d 212 (1946); Restatement
(Second) of Agency § 237 (1958).
The only arguable "fact" evidencing a return to the scope of
his employment is that Jones was driving home along his usual
route after spending five hours at the bar. This "fact" meets
neither prong of the two-part test. Had Jones received a call
while at the bar directing him to return to the office or a
crime scene then it could be said that he intended to act as an
FBI agent and that his intent was reasonably connected in time
and space to his work. However, all that happened here was that
Jones left the bar and started to drive home with neither an
intent to act as an FBI agent nor any reasonable connection
with his position as the Special Agent in Charge.
In light of the above analysis we must conclude that at the
time of the accident, Jones was not acting within the scope of
IT IS THEREFORE ORDERED THAT:
Petitioner's petition to find and certify that he was acting
within the scope of his office or employment pursuant to
28 U.S.C. § 2679(d)(3) is DENIED. Petitioner's motion for a
hearing is likewise DENIED. Pursuant to this section, this
action is hereby REMANDED to state court.