The Supreme Court took this case because CA1’s opinion in it (which we reported here) conflicts with CA2’s opinion in McCloud v. Kimbro.

The court affirms Engler and rejects the McCloud analysis. Respondeat superior depends on the employers right to control, which is measured at the time of the tort.

The opinion does not expressly disapprove McCloud, pretending that it depended on an administrative regulation that was not involved in Engler. “But to the extent that McCloud II suggests that employees generally are acting within the course and scope of their employment when ‘driving to a restaurant’ while off duty during an extended out-of-town assignment ‘because eating is incidental to a multiple-day assignment,’ we disagree.”

(link to opinion)