Opinion
D041046.
11-19-2003
TRACY DURELS, Plaintiff and Appellant, v. CALIFORNIA SHEET METAL WORKS, INC., Defendant and Respondent.
Appellant Tracy Durels was injured when the vehicle she was driving was struck by a vehicle driven by Eduardo Cortez, an employee of respondent California Sheet Metal Works, Inc. (CSMW). Durelss claim against CSMW asserted Cortez was acting within the course and scope of his employment with CSMW at the time of the accident and therefore CSMW was liable for her injuries under respondeat superior principles.
At the time of the accident, Cortez had finished work for the day and was en route to exchange his soiled work clothes for freshly laundered work clothes. The trial court granted CSMWs motion for summary judgment because it concluded Cortez was not acting within the course and scope of his employment at the time of the accident, but instead was on a personal errand, and that the going-and-coming rule barred respondeat superior liability.
I
FACTUAL AND PROCEDURAL BACKGROUND
A. The Lawsuit
On August 23, 2001, at approximately 2:30 p.m., Durels was injured when a vehicle driven by Cortez struck the vehicle she was driving. Durelss complaint alleged that Cortez was negligent and CSMW was vicariously liable under respondeat superior principles because Cortez was employed by CSMW and, at the time of the accident, was traveling from his job assignment at a construction site to CSMWs offices.
B. The Undisputed Facts
CSMWs motion for summary judgment and Durelss cross-motion for summary adjudication included the following undisputed facts.
The Accident
Cortez worked for CSMW, installing rain gutters and sheet metal materials. At 2:00 p.m. on August 23, 2001, Cortez finished working his eight-hour shift at a construction site. Cortez was paid for only his eight hours of work at the construction site, was not paid for the time he spent going to or from the construction site, was not reimbursed for travel expenses, and used his own vehicle to get to and from the construction site.
After finishing his shift, Cortez left the construction site around 2:00 p.m. At approximately 2:30 p.m., Cortez was driving on Mira Mesa Boulevard in his own vehicle when the accident occurred. Cortez was en route to drop off soiled work clothes and to pick up clean work clothes left in the lunchroom at CSMWs premises by a vendor, Prudential Overall Supply (Prudential). Cortez was neither instructed nor required to return to CSMWs offices that day.
The Laundering Service
Prudential supplied work clothes and laundering services to 50 percent or fewer of CSMWs employees. Some of CSMWs employees had, on their own time, investigated several vendors who supplied work clothes and laundering services and ultimately selected Prudential to supply them with this service. Prudentials service saved them the cost and inconvenience of individually purchasing and laundering their work clothes, and avoided using their home washers and dryers.
The work clothes supplied by Prudential were not uniforms, did not bear CSMWs insignia, and were not required attire for CSMWs employees. Instead, the use of Prudentials service was optional to each employee, and the charges for Prudentials service was paid by the employee who chose to use this service.
Although Prudentials contract for the service was executed by CSMW as the nominal "customer," and CSMW issued a single check to pay the monthly Prudential invoice for all the clothes and laundry services used by the participating employees, the charges attributable to each employees clothing selections and laundering services were passed through to and paid by the participating employee through a payroll deduction that varied among employees and was calculated according to the amount Prudential charged for the participating employees clothes and laundering services.
In August 2001 Prudential made over 60 stops per week in San Diego County to deliver clean clothes and pick up soiled clothes, one of which was a weekly Wednesday delivery to CSMWs offices. Prudential left the clean clothes on racks (supplied by Prudential) in a lunch room at CSMWs offices, and each employees clothes were marked with his or her name. Each participating employee was responsible for retrieving clean clothes from, and dropping off soiled clothes at, the lunchroom. Participating employees were not required to pick up their clothes from the rack on any particular day.
C. The Summary Judgment Motion
CSMW moved for summary judgment, asserting that respondeat superior liability required a showing the accident occurred while Cortez was acting within the course and scope of his employment with CSMW. CSMW argued that because the undisputed facts showed Cortez had finished working, and was pursuing a personal errand while on his way home, the so-called going-and-coming rule applied and CSMW was not liable. Durels opposed summary judgment, asserting that a series of Supreme Court cases, commencing with Hinman v. Westinghouse Elec. Co. (1970) 2 Cal.3d 956 (Hinman), had formulated principles for determining respondeat superior liability that sub silencio undermined the traditional going-and-coming rule. Durels argued these cases supplanted traditional rules with a new regime that imposed respondeat superior liability for risks typical or broadly incidental to the business undertaken by the employer, and if the risks were inherent in or created by the business enterprise, the employer would be liable even if the employees conduct did not confer a benefit on the employer. Durels argued that because CSMW facilitated the laundering service as a benefit to its employees, the risks associated with that program, including automobile accidents involving employees driving to pick up their clothes, were broadly incidental to CSMWs business and therefore justified imposing respondeat superior liability on CSMW.
The trial court ruled Cortezs trip to pick up his clean work clothes did not include conduct within the course and scope of his employment, and the risk of automobile accidents involving employees driving to pick up their clothes was not broadly incidental to CSMWs business or inherent in or created by the CSMWs business enterprise, and therefore entered summary judgment for CSMW.
II
ANALYSIS
A. General Principles of Respondeat Superior Liability
An employer is liable for torts committed by employees acting within the course and scope of their employment. (Felix v. Asai (1987) 192 Cal.App.3d 926, 931.) However, under the going-and-coming rule, an employee is not acting within the course and scope of his employment while engaged in the ordinary commute going to or coming from his or her place of work. (Id. at p. 931.) "The going and coming rule is sometimes ascribed to the theory that the employment relationship is suspended from the time the employee leaves until he returns [citation], or that in commuting he is not rendering service to his employer [citation]." (Hinman, supra, 2 Cal.3d at p. 961.)
Although ordinary commutes are outside the course and scope of employment, exceptions are made to the going-and-coming rule when the employees trip involves an incidental benefit to the employer not common to commute trips by ordinary members of the work force. (Felix v. Asai, supra, 192 Cal.App.3d at p. 931.) For example, under the special errand theory, an employee is deemed to be acting within the course and scope of his or her employment while coming from or returning to home if the employee is on a special errand for the employer either as part of regular duties or at a specific order or request of the employer. (Ibid.) The courts have also excepted from the going-and-coming rule those cases in which the employer and employee, by agreeing to pay the employee for travel time and expenses associated with commuting, "have made the travel time part of the working day by their contract." (Hinman, supra , 2 Cal.3d at p. 962.) Hinman reasoned the decision to pay for commuting time confers on the employers business the benefit of an enlarged geographical pool from which to draw a labor force, and concluded this incidental benefit to the employer from the commute was sufficiently substantial to justify making the employer responsible for the risks inherent in and created by increased commuting by distant employees. (Ibid.)
B. Application of Rule to Cortez When the Accident Occurred
The relevant facts are not in dispute. The accident occurred after Cortez finished work and while he was en route to CSMWs offices to collect his personal work clothes that he had chosen to buy from and have cleaned by Prudential. CSMW did not pay Cortez either salary or travel expenses for this trip; CSMW did not require Cortez to make this drive as part of his regular duties as a sheet metal installer and did not request he make this particular drive; CSMW did not require Cortez wear the clothing or use the service provided by Prudential; and Cortez had discretion to select the time, route and manner for collecting his laundry.
Although the issue of course and scope of employment is ordinarily a question of fact, it is a question of law when the operative facts are undisputed. (Tognazzini v. San Luis Coastal Unified School Dist. (2001) 86 Cal.App.4th 1053, 1057; Perez v. Van Groningen & Sons, Inc. (1986) 41 Cal.3d 962, 968 (Perez).) Neither party contends the relevant facts are disputed, and we therefore review de novo whether the trial court correctly held Cortez was not acting in the course and scope of his employment at the time of the accident. (Le Elder v. Rice (1994) 21 Cal.App.4th 1604, 1608.)
The going-and-coming rule, as developed by controlling case law, was properly applied here and there is no factual basis for applying any exceptions to that rule. In Blackman v. Great American First Savings Bank (1991) 233 Cal.App.3d 598, this court applied the going-and-coming rule to exclude respondeat superior liability for an accident under analogous circumstances. In Blackman, the employee finished work and was en route to a college class she was attending under the employers educational assistance program when she was involved in an automobile accident. This court held that the going-and-coming rule excluded respondeat superior liability for the accident and no exceptions to the going-and-coming rule were applicable. First, the trip was not a "special errand" because taking college classes was not a regular part of her duties and the employee was not specially ordered or requested to take the classes. Second, Blackman evaluated whether risk of accidents "may fairly be regarded as typical of, or broadly incidental to, the employers business" because taking classes marginally benefited the employer by improving its employees education. Blackman concluded that improved educational achievement did not directly benefit the employers day-to-day operations, and any indirect benefit was too attenuated and insubstantial to justify making the employer liable for the risks inherent in travel. (Id. at pp. 602-604.)
Similarly, the court in Tognazzini v. San Luis Coastal Unified School Dist., supra, 86 Cal.App.4th 1053 evaluated whether an employer was liable when an employee, who was required by state law to be fingerprinted, had an accident on her day off as she left the location where she was fingerprinted. Tognazzini concluded there was no respondeat superior liability because the employer did not require the employee to drive; the employee had discretion on when, where and how to be fingerprinted; and the accident occurred when the employee was not working. The court held the relationship between her employment and driving to be fingerprinted "is simply too attenuated to require [the employer] to bear the risks of liability." (Id . at pp. 1058-1060; accord, Munyon v. Oles, Inc. (1982) 136 Cal.App.3d 697, 702-704 [employer not liable for accident of off-duty employee driving to office to pick up paycheck being held at office].)
The trial court correctly applied these authorities to hold CSMW was not liable under respondeat superior principles for Cortezs accident. As in Blackman, Cortez had completed his working day and was en route to accomplish an errand for his personal benefit. As in Tognazzini, CSMW did not require Cortez to return to the office and Cortez had discretion to select the time, route and manner for collecting his laundry. As in Munyon, CSMW did not require Cortez to make this drive as part of his regular duties as a sheet metal installer, and the mere fact CSMW had something at its offices that Cortez wanted to pick up for his personal benefit "does not convert that circumstance to an invitation to engage in a special errand for the benefit of the employer." (Munyon v. Oles, supra , 136 Cal.App.3d at p. 704.) Finally, there is no evidence that CSMW in effect contractually made the travel time part of the working day; Cortez was not compensated for his time and expenses for the trip, which would bring the trip within the Hinman exception.
The facts here present a less compelling case for finding respondeat superior liability than did the facts considered in Blackman or Tognazzini. Unlike the Blackman employer, who reimbursed the employee for the costs of the school to which the employee was driving, CSMW did not absorb the expenses for the laundry that Cortez was en route to retrieve. Unlike Tognazzini, in which the employee was under compulsion to be fingerprinted, the decision to use Prudentials (or any) laundry service was optional. The fact CSMW contracted with Prudential to supply work clothes and services to those employees who wished to use those services and administratively paid for those services subject to reimbursement by payroll deductions created only an indirect benefit to CSMW that was too attenuated to justify liability on CSMW.
Because Cortez had finished work and was engaged in a personal errand, and any tangential business benefit to CSMW resulting from Cortezs picking up his laundry was substantively indistinguishable from the incidental benefits all employers receive from trips by ordinary members of the work force to collect laundered work clothes, there is no basis for excepting Cortezs trip from the operation of the ordinary going-and-coming rule.
C. The Supreme Court and the Going-and-Coming Rule
Durels cobbles together a series of cases, beginning with Hinman and continuing with Perez, supra, 41 Cal.3d 962, and Mary M. v. City of Los Angeles (1991) 54 Cal.3d 202 (Mary M.), to support the assertion that governing principles for determining respondeat superior liability have effectively undermined the traditional going-and-coming rule. Durels asserts an employer is liable for risks inherent in or created by the business enterprise (citing Hinman), as long as the risk arises from employee conduct not so "unusual or startling" that it would be unfair to deem the risk as "typical of or broadly incidental to the enterprise undertaken by the employer" (citing Perez, supra, 41 Cal.3d at p. 968), even if the employees specific conduct did not confer a benefit on the employer (citing Mary M., supra, 54 Cal.3d at 209). Durels argues the instant case is within those strictures because CSMW, by facilitating the laundry service to benefit its employees, created the risks associated with that program, including automobile accidents involving employees driving to pick up their clothes, and risks of accidents are not so unusual or startling that it would be unfair to deem the risk as one broadly incidental to CSMWs business, even though Cortezs trip did not directly benefit CSMW.
The cases relied on by Durels do not support the principle she advocates. In Hinman, the sole Supreme Court case cited by Durels that addressed an accident by an employee on his way to or from work, the court did not jettison the going-and-coming rule. To the contrary, Hinman acknowledged that respondeat superior liability, which is imposed regardless of the employers fault and instead extends to risks incident to the enterprise, does not encompass risks posed by ordinary trips by employees traveling to and from work. (Hinman, supra, 2 Cal.3d at pp. 959-962.) However, Hinman also recognized that if such a trip confers "an incidental benefit to the employer, not common to commute trips by ordinary members of the work force," respondeat superior liability can extend to accidents during the trip. (Id. at p. 962.) Hinman reasoned that when an employer chooses to further its business interest by enlarging the geographical pool from which to draw its labor force by paying its employees for their commute, and this business benefit also creates a concomitant increased risk of accidents, the business benefited by the increased commute should also be responsible for the risks inherent in the choice of inducing increased commuting. Hinman summarized its holding by stating that when the employer and employee have, by agreeing to pay the employee for his or her travel time and expenses associated with commuting, "made the travel time part of the working day by their contract, the employer should be treated as such during the travel time." (Hinman, supra, 2 Cal.3d at p. 962.)
For similar reasons, Durelss reliance on Rodgers v. Kemper Constr. Co. (1975) 50 Cal.App.3d 608 is not persuasive. In Rodgers, the employer was engaged in an around-the-clock tunneling project. The employer maintained an on-site facility to allow its workers to clean up and change, and encouraged its employees to also use the facility to gather and socialize after they finished their shifts; this provided the employer with a pool of on-site workers if the employer needed additional help for the following shift. (Id. at p. 615.) The court held that the employees, although off-duty, stayed on-site and socialized as a customary incident of the employment relationship, were encouraged to stay by the employer, and the employers business received collateral benefits from their presence. Therefore, the risks inherent in or created by their continued presence were broadly incidental to the employers business. (Id. at pp. 618-621.)
Hinman is factually distinguishable from the instant case because CSMW did not make travel time part of Cortezs working day by agreeing to pay for the time and expense of his trip. More importantly, the rationale Hinman articulated for excepting the particular commute before it from the operation of the ordinary going-and-coming rule does not apply here. Unlike Hinman, the commuting trip by Cortez did not confer an incidental benefit on CSMW "not common to commute trips by ordinary members of the work force" (Hinman, supra, 2 Cal.3d at p. 962) who are traveling to pick up their clean work clothes, and CSMW did not induce conduct by its employees that created increased risks of accidents.
Durels appears to assert CSMW did induce its employees to act in a manner that increased the risks of accidents because, by allowing Prudential to leave the clothes in CSMWs offices, CSMW directly impacted the driving habits of the 15 to 23 employees by inducing them to travel to CSMWs offices on Wednesdays to pick up and drop off work clothes. Although these employees may have changed where they picked up clean clothes, there is no evidence that picking up laundry at CSMWs offices (rather than at some other location) increased the risk of accidents associated with traveling to pick up clean clothes.
The principles articulated in Perez and Mary M. are not applicable to the instant case. The issue here is whether a tort by an off-duty employee should be included within respondeat superior liability because it fairly can be deemed to have occurred while the employee was acting within the course and scope of his employment. In contrast, the courts in Perez and Mary M. evaluated whether a tort by an on-duty employee should be excluded from respondeat superior liability because the particular injury was caused by an employees conduct that did not benefit the employer or violated company rules (Perez) or was criminal (Mary M.). In Perez, the on-duty employee, operating a tractor for his employer, allowed his nephew to ride with him as he worked and the nephew was injured. (Perez, supra, 41 Cal.3d at p. 965.) The employer argued that torts by an on-duty employee should be excluded from respondeat superior liability if the employee is violating company rules and pursuing personal business that confers no benefit on the employer. Perez held that when an employee is on duty, and thus is clearly acting within the course and scope of his or her employment, the employer is liable for risks fairly regarded as typical of or broadly incidental to the employers business, even though the employee is also engaged in personal business that confers no benefit on the employer, provided the risk is not so unusual or startling that it would seem unfair to include the loss resulting from it among other costs of the employers business. (Id . at pp. 968-970.) Because Perez evaluated whether to create exceptions to respondeat superior liability for injuries caused by on-duty employees, rather than whether to expand respondeat superior liability for torts by off-duty employees, it is not applicable here.
The decision in Mary M. is inapplicable for the same reasons. There, an on-duty police officer detained a driver for a suspected offense and thereafter raped the driver. (Mary M., supra, 54 Cal.3d at p. 207.) The court rejected the employers argument that the officer was acting outside the course and scope of his employment when he raped the victim, reasoning that an officer is granted extensive authority over citizens and is acting within the course and scope of his or her employment during the exercise of that authority. Because the particular officer was exercising that authority when he detained the driver, and it is not unusual or startling that an officer will occasionally abuse the authority vested in him, the court held it was not unfair to hold the employer liable. (Id. at pp. 213-221.) Because Mary M. evaluated whether to create an exception to respondeat superior liability when the injury was caused by a criminal assault by an on-duty employee, and did not address whether torts by off-duty employees should be included within respondeat superior liability, Mary M. is not applicable here.
The Supreme Courts decisions in Hinman, Perez and Mary M. do not undercut the continued vitality of the rule holding that an off-duty employee is not acting in the course and scope of his or her employment when going to or coming from work. The courts have continued to apply the going-and-coming rule to reject respondeat superior liability for commutes. (See Le Elder v. Rice, supra, 21 Cal.App.4th 1604; Tognazzini v. San Luis Coastal Unified School Dist., supra, 86 Cal.App.4th 1053.) We are unpersuaded that the Supreme Court has sub silencio abrogated the going-and-coming rule.
DISPOSITION
The judgment is affirmed. Respondent is entitled to costs on appeal.
WE CONCUR, McCONNELL, P. J., IRION, J.