Nature of the Case
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Facts
D was an employee of D1. D was in Duluth supervising the opening of a new D1 restaurant. He stayed at P's Motel at D1's expense. D normally would arise at 6:00 a.m. and work at the restaurant from about 7:00 a.m. to 12:00 or 1:00 a.m. In addition to working at the restaurant, D remained on call 24 hours per day to handle problems arising in other D1 restaurants located in his district. D thought of himself as a '24 hour a day man.' D's laundry, living expenses, and entertainment were items of reimbursement. There were no constraints as to where he would perform his duties or at what time of day they would be performed. D had worked on the restaurant premises for about seventeen hours. This was the seventh consecutive day that he put in such long hours. Between 12:00 and 12:30 a.m., D and others left the restaurant in a company-provided car. Upon arrival at P, D and another decided to walk across the street to the Bellows restaurant to have a drink. D consumed a total of four brandy Manhattans, three of which were 'doubles.' They allegedly discussed the operation of the newly-opened D1 restaurant. D also talked a little about the mixing and pricing of drinks. The testimony showed that D was interested in learning the bar business because the new D1 restaurant served liquor. Between 1:15 and 1:30 a.m. they walked back to P. D acted normal and appeared sober. D went directly to his motel room, and then 'probably' sat down at a desk to fill out his expense account because that was his habit. It took D no more than five minutes to fill out the expense form. While completing the expense account he 'probably' smoked a cigarette. D smoked about two packages of cigarettes per day. D then went to bed, and soon thereafter a fire broke out. The amount of damages was stipulated by the parties at $330,360. The fire started in, or next to, the plastic wastebasket located to the side of the desk in D's room. He also stated that the fire was caused by a burning cigarette or match. The jury found that D's negligence was a direct cause of 60 percent of the damages sustained by P. The jury determined that the negligent act occurred within the scope of his employment. D1 moved for judgment notwithstanding the jury findings and, in the alternative, a new trial. P moved to set aside the jury's findings that P was negligent and that such negligence was a direct cause of the fire. The district court granted D1's motion for judgment notwithstanding the verdict, ruling that D's negligence did not occur within the scope of his employment, and denied all other motions.
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