Was a workman acting within the scope of his employment when he returned to the worksite, with his employer’s permission, to retrieve scrap metal as a “bonus” for his years of service?
Respondent, Robert Trent, was run over by a truck driven by Bruce Wilfong. Respondent sued Petitioner, claiming that Wilfong was employed by Petitioner and was acting within the scope of his employment at the time of the crash. Petitioner, however, denied that he was acting within the scope of employment.
Wilfong was a 35 year employee of Petitioner’s roofing company. Petitioner’s owner testified that as a “bonus” for his years of service Wilfong had permission to return to Petitioner’s worksite to retrieve scrap metal and sell it. On the day of the crash, Wilfong had returned his company vehicle and driven his own truck to the worksite to retrieve scrap metal. While backing up, he struck Respondent, who was standing on the sidewalk next to his home. The jury concluded that Wilfong was acting within the scope of employment and awarded damages of $181,000. Judgement against the Petitioner was entered in that amount.
Petitioner appeals, arguing that the court erred by submitting the scope-of-employment issue to the jury and by refusing an instruction supporting Petitioner’s independent contractor defense. Petitioner also alleges error involving Respondent’s damages, including a claim that damages for any physical limitations were unsupported by Respondent’s treating physician.
Petitioner (Roof Service of Bridgeport, Inc.):
Petitioner devotes most of its brief to the scope-of-employment issue. Citing the traditional elements of the master/servant relationship, Petitioner argues that it did not select or engage Wilfong to remove scrap metal at the worksite and did not compensate Wilfong for that work. Wilfong had completed his workday and returned to the worksite on his own time, in his own truck, and in furtherance of his own purposes.
Regarding the issue of damages, Petitioner argues that Respondent’s treating physician could not testify to a reasonable degree of probability that his physical limitations were caused by the crash. Consequently, says Petitioner, Respondent could not “contradict” the physician’s medical testimony with his own.
According to Respondent, cleaning up and carrying away scrap metal was actually a part of Petitioner’s contract. Therefore, by hauling away the scrap Wilfong was, in fact, benefiting Petitioner. Furthermore, Wilfong was being “paid” for the work because his right to retrieve it was given by Petitioner as a bonus for his years of service with the company. Consequently, a master/servant relationship existed and Wilfong was acting within the scope of that relationship.
Respondent also argues that the damages were amply supported. The nature of Respondent’s injuries, including a broken pelvis, was obvious and common knowledge. Furthermore, under West Virginia law, a jury issue is created when medical testimony establishes even a “possibility” that the tortious act caused the injuries in question. See, e.g., Pygman vs. Helton, 148 W.Va. 281, 134 S.E.2d 717 (1964).
This case will probably generate a new syllabus on scope-of-employment law in West Virginia. Obviously, that’s a big deal. Hopefully, the Supreme Court will continue to apply scope-of-employment liberally so that victims of torts occurring in workplace settings can be fully compensated. If the Court faithfully applies Pygman, the full amount of damages relating to Respondent’s physical limitations also should be affirmed.