Klinke v. United Parcel Service

Filed 9/28/06 Klinke v. United Parcel Service CA5

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIFTH APPELLATE DISTRICT

APPEAL from a judgment of the Superior Court of Stanislaus County. William A. Mayhew, Judge.

The Cartwright Law Firm, Robert E. Cartwright, Jr., and Matthew J. Quinlan; and Daniel U. Smith for Plaintiff and Appellant.

Morrison & Foerster, Paul T. Friedman, Lawrence R. Katzin, Mimi Yang and Dan E. Marmalefsky for Defendant and Respondent.

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This appeal examines respondeat superior liability in the context of a United Parcel Service Co., Inc. (UPS) driver’s scope of employment. The issue is whether a UPS driver was acting in the course and scope of his employment when, while at home on a Friday evening, the driver divulged a customer’s address to a stranger who thereafter murdered that customer.

Plaintiff and appellant, Kathleen Klinke, the murder victim’s mother, filed a complaint against UPS and others seeking to hold the defendants legally responsible for the injuries caused by the murderer’s violent criminal conduct. The trial court sustained UPS’s demurrer without leave to amend on the ground that there was no breach of duty attributable to UPS. The court concluded that the driver was acting outside the course and scope of his UPS employment when he allegedly disclosed the victim’s address.

Appellant contends the trial court erred. According to appellant, UPS is liable for its driver’s negligent act of divulging a customer’s home address because it is part of a driver’s job to possess and handle customer addresses. In other words, the driver’s negligence was engendered by events or conditions relating to the driver’s employment.

As discussed below, the trial court was correct. The driver was acting outside the course and scope of his employment as his act was personal and took place after work. Moreover, the policy goals underlying the respondeat superior doctrine would not be furthered by its application here. UPS already has a written policy prohibiting the dissemination of customers’ personal data and UPS does not benefit from such disclosure. Therefore, the judgment will be affirmed.

BACKGROUND

While living in New Mexico, the victim, Margaret Klinke, obtained a restraining order against Patrick Kennedy, an ex-boyfriend who was stalking her. To escape Kennedy, Ms. Klinke moved to California. Undeterred by either the restraining order or Ms. Klinke’s relocation, Kennedy tracked Ms. Klinke. He learned that she lived somewhere on Colorado Avenue, a two-mile long street in Turlock.

During the lunch hour on Friday, January 17, Richard Proctor, a UPS delivery driver, was parked on Colorado Avenue sorting packages. Kennedy approached Proctor and asked if Proctor knew Ms. Klinke’s address. Proctor had delivered packages to Ms. Klinke but refused to divulge her address to Kennedy. Nevertheless, Proctor gave his personal cell phone number to Kennedy.

Proctor was suspicious of Kennedy’s intentions and went to the police department that afternoon. A police officer advised Proctor to not give Ms. Klinke’s information to anyone and to report the incident to UPS. UPS has an explicit written policy prohibiting the disclosure of customer’s personal information to unknown third parties.

That evening, Proctor arrived home from work at approximately 7:30 or 8:00. About one hour later, Proctor received a phone call from Kennedy. During this conversation, Proctor divulged Ms. Klinke’s home address to Kennedy.

The next day Kennedy broke into Ms. Klinke’s home. He imprisoned Ms. Klinke in a bedroom, brutally assaulted her and then shot and killed her before turning the gun on himself.

Appellant filed the underlying complaint as the personal representative for Ms. Klinke’s estate and in her individual capacity as Ms. Klinke’s heir. As against Proctor and UPS, appellant alleged causes of action for wrongful death and negligence premised on Proctor’s alleged disclosure of Ms. Klinke’s address.

Following a series of demurrers filed by UPS and amendments to the complaint filed pursuant to the trial court’s grant of leave to amend, UPS’s demurrer to the second amended complaint was sustained without leave to amend. The trial court found that the complaint, even when liberally construed, failed to state facts giving rise to the existence of a duty on the part of UPS. The court concluded that Proctor was acting outside the course and scope of his UPS employment when he allegedly disclosed Ms. Klinke’s address.

DISCUSSION

The determinative issue in this appeal is whether Proctor was acting in the course and scope of his employment when he disclosed Ms. Klinke’s address to Kennedy. If not, Proctor’s alleged negligence is irrelevant to the dismissal of UPS from the action.

Appellant contends the facts set forth in the second amended complaint were sufficient to give rise to a duty on the part of UPS. According to appellant, Proctor’s negligent act of divulging a customer’s home address is incidental to his work and a risk inherent in or created by the nature of the work. In other words, Proctor’s negligence is within the scope of employment because it was engendered by events or conditions relating to the employment.

Under the doctrine of respondeat superior, an employer may be held vicariously liable for an employee’s torts committed within the scope of employment. (Mary M. v. City of Los Angeles (1991) 54 Cal.3d 202, 208.) This doctrine is justified as “‘a rule of policy, a deliberate allocation of a risk.‘” (Hinman v. Westinghouse Elec. Co. (1970) 2 Cal.3d 956, 959.) The theory is that an enterprise should not be able to disclaim responsibility for injuries occurring in the course of its characteristic activities. (Mary M. v. City of Los Angeles, supra, 54 Cal.3d at p. 208.) Rather, such losses must be looked upon as a required cost of doing business. (Hinman v. Westinghouse Elec. Co., supra, 2 Cal.3d at pp. 959-960.) Accordingly, ascertaining whether the risk involved was typical or broadly incidental to the enterprise undertaken by the employer determines the scope of employment. (Le Elder v. Rice (1994) 21 Cal.App.4th 1604, 1607.)

To hold the employer liable, the employee must be engaged either in the duties that he was employed to perform or in those acts that incidentally or indirectly contribute to the employer’s service. (Tryer v. Ojai Valley School (1992) 9 Cal.App.4th 1476, 1481.) Although an employee does not need to be engaged in an act directly benefiting the employer, respondeat superior liability is not synonymous with strict liability. (Bailey v. Filco, Inc. (1996) 48 Cal.App.4th 1552, 1560.) A nexus is required, i.e., that the tort be engendered by or arise from the work. (Lisa M. v. Henry Mayo Newhall Memorial Hospital (1995) 12 Cal.4th 291, 298.) However, this nexus must be distinguished from “but for” causation. “That the employment brought tortfeasor and victim together in time and place is not enough.” (Ibid.)

Under the traditional rule, as applicable here, an act is within the scope of employment if (a) it is of the kind the employee 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 employer. (Thorn v. City of Glendale (1994) 28 Cal.App.4th 1379, 1382.) Other variables that have been evaluated by courts in reaching their decision include whether the employee was using the authority gained as a result of the employment (Mary M. v. City of Los Angeles, supra, 54 Cal.3d 202 [on-duty police officer acting within the course and scope of his employment when committed rape]) or whether the incident occurred after the employee drank alcohol provided by the employer or permitted by the employer on the employer’s premises (Rodgers v. Kemper Constr. Co. (1975) 50 Cal.App.3d 608; Childers v. Shasta Livestock Auction Yard, Inc. (1987) 190 Cal.App.3d 792.)

This case contains none of the factors outlined above. The incident, i.e., the disclosure of the address by telephone, was not the kind of act Proctor was employed to perform, was not directed by UPS, and served no purpose to UPS. In fact, such a disclosure was directly contrary to UPS written policy. Further, the incident did not occur during working hours. Rather, appellant alleged that it took place on a Friday evening approximately one hour after Proctor returned home from work.

Nevertheless, appellant argues the disclosure was work related because Proctor had access to Ms. Klinke’s address due to his employment. However, as noted above, “but for” causation is not sufficient. There must be a nexus between the employee’s tort and the employment. Aiding a stranger seeking a customer’s address is not related to the job of delivering packages and does not further UPS’s interests. Rather, it is a personal decision to disclose an address and is contrary to UPS’s written policy. The “mere fact that an employee has an opportunity to abuse facilities or authority necessary to the performance of his or her duties does not render the employer vicariously liable.” (Farmers Ins. Group v. County of Santa Clara (1995) 11 Cal.4th 992, 1006.)

Appellant further points out that Proctor was on duty when he gave his cell phone number to Kennedy. According to appellant, this “workplace interaction engendered the events that caused Proctor to become an ‘instrumentality of danger’ to others, even though Proctor may have been in a different location when he finally divulged Klinke’s home address to Kennedy later.” Nevertheless, Proctor was not at work when he actually disclosed the address and thereby allegedly committed the tort. After initially refusing Kennedy’s request, Proctor, for whatever reason, decided to divulge Ms. Klinke’s address, in violation of UPS policy, after he had been home for around an hour. Again, this was a personal decision that had no relationship to UPS business. Proctor’s conduct substantially deviated from his duties and thus respondeat superior liability did not attach. (Cf. Le Elder v. Rice, supra, 21 Cal.App.4th at p. 1607.)

Finally, appellant contends that public policy goals compel the conclusion that UPS is vicariously liable for Proctor’s negligence in divulging a customer’s home address to a suspicious looking stranger. Three policy reasons have been identified for applying the respondeat superior doctrine: preventing recurrence of the tortious conduct; giving greater assurance of compensation to victims; and ensuring that the losses will be equitably borne by those who benefit from the enterprise. (Mary M. v. City of Los Angeles, supra, 54 Cal.3d at p. 209.)

Appellant argues that future injuries can be avoided in situations such as this by encouraging UPS and other delivery companies to ensure that their drivers do not randomly and recklessly disseminate personal and confidential data concerning their customers. However, UPS already has a written policy prohibiting such conduct. Further, UPS does not benefit from the disclosure of its customer’s addresses. Thus, the desired economic end would be achieved inequitably because the victim’s losses would not be borne by the person who benefited from the injury-producing activity.

In sum, Proctor was not in the course and scope of his employment when he disclosed Ms. Klinke’s address to Kennedy. The alleged negligent act took place while Proctor was at home after work. Proctor’s decision was personal and did not benefit UPS. Moreover, the policy goals underlying the respondeat superior doctrine would not be furthered by its application in this case. Accordingly, as a matter of law, no breach of duty is attributable to UPS based on Proctor’s alleged conduct. Thus, the trial court correctly sustained UPS’s demurrer to appellant’s second amended complaint without leave to amend.

DISPOSITION

The judgment is affirmed. Costs on appeal are awarded to respondent.

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Levy, Acting P.J.

WE CONCUR:

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Dawson, J.

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Kane, J.

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