Sanders v. Barnard Construction

Filed 5/2/07 Sanders v. Barnard Construction CA4/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION TWO

APPEAL from the Superior Court of Inyo County. Brian Lamb, Judge. Affirmed.

Chain, Younger, Cohn & Stiles, David K. Cohn and Brian P. Azemika for Plaintiffs and Appellants.

Jacobson & McElroy, Karen L. Jacobsen, Andrew G. Minney; Hayes, Davis, Bonino, Ellingson, McLay & Scott and Mark G. Bonino for Defendant and Respondent Barnard Construction Co., Inc.

I. INTRODUCTION

Plaintiffs and appellants Stephen Sanders, Lisa Sanders, Victoria Sanders, Dustin Sanders, and Horace L. Wood appeal from judgment following the trial courts grant of summary judgment in favor of defendant and respondent Barnard Construction Co., Inc. (Barnard). Plaintiffs contend triable issues of material fact exist as to whether defendant Glen Edward Allison^[1]was acting in the course and scope of his employment with Barnard when the underlying accident occurred. We disagree, and we affirm.

II. FACTS AND PROCEDURAL BACKGROUND

The following facts were undisputed: Barnard was the general contractor for a dust mitigation project at Owens Dry Lake. In fall 2003, Allison, doing business as Allison Enterprises Trucking & Gravel, signed an agreement with Barnard to furnish a truck, trailer, and an owner/operator to haul rip rap, sand, and gravel at the site. Allison was required to provide his own general liability insurance. The agreement stated that Allison was an independent contractor.

Under the agreement, Allison was to submit invoices to Barnard twice a month, and Barnard paid Allison monthly. Using his own equipment, Allison began hauling at the dust mitigation project in August or September 2003. He generally worked at the project on Mondays through Fridays, but he never hauled on Saturdays. Barnard maintained a yard in Keeler, California, and Allison parked his Kenworth truck and trailer there.

On Saturday, November 1, 2003, Allison drove his personal pickup truck to the Barnard yard to repair the CB radio in his Kenworth truck. After completing that work, Allison stopped near Highway 395 and consumed alcohol. Allison then began to cross Highway 395 and collided with a vehicle driven by Horace D. Wood, in which Stephen Sanders was a passenger. Horace D. Wood was killed and Stephen Sanders suffered personal injuries.

Plaintiffs Lisa Sanders, the wife of Horace D. Wood; Victoria Sanders and Dustin Sanders, through a guardian ad litem, the dependent stepchildren of Horace D. Wood; Stephen Sanders, as a dependent stepchild of Horace D. Wood and for his own injuries; and Horace L. Wood, as the dependent father of Horace D. Wood, filed an action for negligence and wrongful death against Allison on March 3, 2004. In July 2005, Barnard was added as a Doe defendant. The complaint alleged vicarious liability against Barnard for the acts of Allison based on the assertion that Allison was an employee of Barnard and in the scope of his employment at the time of the accident.

Barnard filed a motion for summary judgment on the grounds that Allison was not an employee or agent of Barnard at the time of the accident, and even if he had been Barnards employee or agent, he was not acting in the course and scope of his employment at the time of the accident. Following a hearing, the trial court held that even if Allison was an employee of Barnard, no trier of fact could determine that Allison was acting in the scope of employment. Thus, the trial court granted the motion for summary judgment.

III. DISCUSSION

A. Standard of Review

This court reviews de novo the grant of a motion for summary judgment. (Saelzler v. Advanced Group 400 (2001) 25 Cal.4th 763, 767.) [W]e must view the evidence in a light favorable to plaintiff as the losing party [citation], liberally construing her evidentiary submission while strictly scrutinizing defendants own showing, and resolving any evidentiary doubts or ambiguities in plaintiffs favor. [Citations.] (Id. at p. 768.)

B. Scope of Employment

Plaintiffs contend that triable issues of fact exist as to whether Barnard was vicariously liable for Allisons negligence because Allison was on a special errand at Barnards request when the accident occurred, and the work he performed benefited Barnard.^[2] Plaintiffs assert that the evidence showed that (1) Barnard required haulers to have CB radios in their trucks so Barnard could communicate instructions and assignments while the haulers operated their trucks, and (2) on the day of the accident, Allison had gone to the Barnard yard to repair the CB radio in his Kenworth tractor.

Under the respondeat superior doctrine, an employer may be vicariously liable for torts committed by an employee. [Citation.] The rule is based on the policy that losses caused by the torts of employees, which as a practical matter are certain to occur in the conduct of the employers enterprise, should be placed on the enterprise as a cost of doing business. [Citation.] The basic test for vicarious liability is whether the employees tort was committed within the scope of employment. [Citation.] (Kephart v. Genuity, Inc. (2006) 136 Cal.App.4th 280, 291.)

Policies that underlie the respondeat superior doctrine include (1) to prevent recurrence of the tortious conduct; (2) to give greater assurance of compensation for the victim; and (3) to ensure that the victims losses will be equitably borne by those who benefit from the enterprise that gave rise to the injury. [Citation.] These factors do not constitute the legal standard for respondeat superior liability, but they provide guidance to the courts in considering whether the doctrine should be applied. [Citation.] (Kephart v. Genuity, Inc., supra, 136 Cal.App.4th at p. 296.)

An employee is not considered to be acting within the scope of employment when going to or coming from work, and an employer is not vicariously liable for the employees actions during that time. (Anderson v. Pacific Gas & Electric Co. (1993) 14 Cal.App.4th 254, 258 (Anderson).) This going-and-coming rule is based on the theory that the employment relationship is suspended from the time the employee leaves his job until he returns and on the theory that during the normal everyday commute, the employee is not rendering services directly or indirectly to his employer. [Citation.] (Felix v. Asai (1987) 192 Cal.App.3d 926, 931.)

However, an employees acts may subject the employer to vicarious liability if the employee was on a special errand at the time of the accident. Thus, an exception to the going and coming rule occurs when an employee is on a special errand for his employer, which is either part of his regular duties or at the order or request of the employee (Boynton v. McKales (1956) 139 Cal.App.2d 777, 789 (Boynton)), and the employer derives some incidental benefit from the employees trip. (Anderson, supra, 14 Cal.App.4th at p. 258.) The employee remains within the scope of employment from when he starts on the errand until he returns from the errand and is still within the scope of employment even after the errand is completed. (Boynton, supra, at p. 789; Trejo v. Maciel (1966) 239 Cal.App.2d 487, 495.)

It is generally a question of fact whether an employees conduct is within the scope of employment. However, if the facts are undisputed and no conflicting inferences are possible, the question is one of law. (Baptist v. Robinson (2006) 143 Cal.App.4th 151, 162.)

The trial court relied primarily on Blackman v. Great American First Savings Bank (1991) 233 Cal.App.3d 598 (Blackman) in concluding that, as a matter of law, Allison was not acting in the scope of his employment at the time of the accident. In Blackman, the plaintiff was injured in a motor vehicle accident with an employee of the defendant bank when the employee was on her way to attend a college course after completing her shift at work. (Id. at p. 601.) The bank encouraged its employees to attend college courses and reimbursed the fees for qualified courses. The court noted that attending college courses paid for by the employer was optional and not a requirement of further employment, and the college courses had no direct impact on the day-to-day banking operations and would merely benefit the employer incidentally over time. (Id. at pp. 603-604.) Thus, the court held the employee was not in the scope of her employment as a matter of law when the accident occurred. (Id. at p. 604.)

While Blackman is helpful to our analysis, we find the case of Tognazzini v. San Luis Coastal Unified School Dist. (2001) 86 Cal.App.4th 1053 (Tognazzini) to be closer on point. In Tognazzini, the court held that a school district employee was not on a special errand for the school district when she was returning from being fingerprinted as required by state law. (Id. at pp. 1059-1060.) The court noted that the employer had told its employee to comply with the state law, but the employee had discretion as to time, day, and place to get fingerprints; she drove her own car; she completed the task on her day off; she selected her own route; and she was not paid for her time. (Id. at pp. 1056, 1059.)

Here, the facts are similar to those of Tognazzini, supra, 86 Cal.App.4th 1053. Assuming for purposes of argument that Barnard required Allison to have a CB radio in his truck, maintaining the CB radio was not shown to be part of Allisons regular duties, and it was not shown that the task was performed at Barnards order or request. Rather, Allison had discretion as to how and when to maintain the radio. Allison completed that task on his day off; he selected his own route; and he was not paid for his time. Under these facts showing that Allison was not acting in the scope of his employment when the accident occurred, the burden shifted to plaintiffs to show that a triable issue of fact existed. Plaintiffs failed to meet that burden, and the trial court properly granted summary judgment in favor of Barnard.

IV. DISPOSITION

The judgment is affirmed.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

HOLLENHORST

Acting P. J.

We concur:

MCKINSTER

J.

KING

J.

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^[1] Allison is not a party to this appeal.

^[2]We will assume for purposes of argument that a triable issue of fact existed as to whether Allison was Barnards employee for purposes of respondeat superior liability. However, the trial court granted summary judgment on the basis that no triable issue of fact existed as to whether Allison was acting in the scope of such employment when the accident occurred. We will therefore focus our discussion on that issue.