Metropolitan News-Enterprise

 

Monday, December 24, 2018

 

Page 1

 

Court of Appeal:

Employer Might Be Liable for Accident Caused by Employee While Off-Duty

Employee Was On-Call at All Times, Creating Triable Issue of Fact—Franson

 

By a MetNews Staff Writer

 

The Fifth District Court of Appeal has held that an employer might be liable for the injuries sustained by a passenger in a company-owned vehicle being driven by its employee while he was off-duty, driving home from a family gathering, because the employee was on-call 24 hours a day, seven days a week.

 Justice Donald R. Franson Jr. wrote the opinion, filed Thursday. It reverses the judgment by Tulare Superior Court Judge Melinda M. Reed in favor of the defendants after she summarily adjudicated the nonapplicability of the doctrine of respondeat superior based on the employee—the plaintiff’s father—was not acting within the scope of his employment.

Franson wrote:

“We publish this decision because it is distinguishable from most other cases involving an employee’s required use of a company-owned vehicle. Usually, those cases involve an employee who is required to use the vehicle only for the commute to and from work but is not required to use the vehicle while off work. Here, a trier of fact reasonably could find the driver’s use of the truck for personal travel after work was dictated by the employer’s requirement.”

He continued:

“In such circumstances, the risk of the trucks  involvement in an accident is a foreseeable risk that is attributable to the business  enterprise under California’s risks-of-the-enterprise principle, which is the primary  justification for its respondeat superior doctrine. Consequently, responsibility for that  risk is best allocated to the enterprise, which is able to spread the risk (and actually did  so) by obtaining insurance.”

The plaintiff, Ray D. Moreno, was riding as a passenger in the work truck used by his father, Ernesto Moreno Lopez. The pair were headed home after a get-together at a relative’s house.

On their way home, Lopez hit an embankment and the truck rolled over.

The father worked for a dairy company, Visser Ranch, Inc., which owned the truck. He was a supervisor who was required to be on call at all times, due to the round-the-clock nature of his employer’s business.

(The opinion notes that Visser Ranch and a related defendant, Graceland Dairy, Inc., dissolved in 2015, more than two years after the accident.)

Permission and Benefit

Franson said that under the permission and benefit test, set forth by the Fourth District Court of Appeal in the 2013 case of Purton v. Marriot Internat., Inc., “the employer is liable if the activities that caused the employee to become an instrument of danger to others (1) were undertaken with the employer’s permission and (2) were of some benefit to the employer.”

Here, he noted, Visser Ranch provided the truck to Lopez, and knew that he used it at all times. Lopez said in a declaration that his use of the truck was “a part of my job for Visser’s benefit so that I could respond immediately to Visser’s maintenance, repair, and operation needs.”

Franson continued:

“Plaintiff’s theory of benefit asserts that defendants benefited from requiring Driver to use the GMC truck on personal trips because doing so allowed Driver to respond directly to a phone call that repairs were required at one of defendants’ sites….In contrast, defendants and the trial court viewed Driver as being ‘engaged in a purely personal pursuit with his son when the accident happened.’…

“Based on the evidence presented, we conclude there is a triable issue of material fact as to the second element of the Purton test—that is, whether Driver’s use of the GMC truck for a personal trip was of some benefit to defendants.”

Alternative Theory Applied

The jurist noted that under another theory of respondeat superior liability, set forth in the 2013 Fifth District opinion in Halliburton Energy Services, Inc. v. Department of Transportation, an employee’s act can be attributed to the employer if it was required or incident to his or her duties. He wrote:

“Whether the act performed by Driver was required turns on how that act is described or characterized. For instance, Driver was not required by defendants to attend the family gathering. Consequently, if the relevant conduct is described as returning from a family gathering, that conduct was not an act required by Driver’s employer.

“Alternatively, if the relevant conduct is described as operating the GMC truck while on a personal trip, there is a triable issue of fact as to whether that conduct was required by his employer…

“At a minimum, we conclude the different ways to characterize Driver’s activity presents a question of fact that cannot be decided in defendants’ favor at this stage of the proceedings.”

Under Halliburton’s alternate prong, the foreseeability of an accident, Franson explained that Lopez “was required to use the company owned GMC truck for personal travel and, because vehicular accidents ‘are statistically certain to occur eventually’…the foreseeability test is met.”

The case is Moreno v. Visser Ranch, Inc., F075822.

 

Copyright 2018, Metropolitan News Company