Cearlock v. Lambertson
Filed 8/5/13 Cearlock v. Lambertson CA1/5
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opinion has not been certified for publication or ordered published for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
FIRST
APPELLATE DISTRICT
DIVISION
FIVE
and Appellant,
and Respondents.
A136742
(
Super.
When
an employee injures a bystander while fleeing the police, is the employer
liable for those injuries
under the doctrine of respondeat superior?
The answer in this case is no, because assuming an employment
relationship can be established, the flight from the police was not an activity
within the course and scope of that employment.
We also reject a claim that assisting another in evading the police
amounts to an ultrahazardous activity giving rise to strict liability. We affirm the trial court’s order granting
nonsuit on claims by plaintiff and appellant Bruce Cearlock against defendants
and respondents 1054 Kearny, LLC
and Peter Lambertson.
I.
FACTS AND PROCEDURAL HISTORY
Police
were called to the Heaven Mini Theater (Theater), an adult entertainment business
in San Francisco, to investigate an
altercation between some patrons and the Theater’s doorman. One officer went inside and spoke to the
manager, Michael Canavan, who claimed to be the only male present. The officer then saw a second man, later identified
as Richard Lund, close the door to a room.
Lund jumped out the second
storey window of that room and landed on plaintiff, who was standing on the
sidewalk below. Lund
ran from the scene and was arrested a few blocks away.
Plaintiff
filed this personal injury action against Lund, also naming as defendants 1054
Kearny LLC, the limited liability company that operated the Theater, and
Lambertson, a member of the LLC (collectively, “defendantsâ€). The first amended complaint alleged Lund
was an employee of the Theater, and sought relief against defendants on
theories of negligent hiring, negligent supervision and respondeat
superior. Lund
did not appear in the action.
The
case was called for jury trial.
Plaintiff’s counsel filed a trial brief indicating relief would be
sought on two theories: (1) Defendants
were liable for Lund’s negligent
and intentional conduct under the doctrine of respondeat superior; and (2)
Defendants were strictly liable for plaintiff’s injuries, because the Theater
manager had assisted Lund in
resisting arrest and in so doing, engaged in an ultrahazardous activity.
nonsuit, based on the lack of evidence that Lund
was an employee of the Theater’s or was acting in the course and scope of such
employment when he fled from the police and injured plaintiff. The parties agreed plaintiff’s counsel would
present an opening statement before a jury was empanelled and the court would
rule on the nonsuit motion based on that opening statement.
Plaintiff’s
counsel gave an opening statement setting forth the following facts: Plaintiff
was standing on the sidewalk near a bar his wife owned while she conducted
business inside; he was slammed to the sidewalk when a man (Lund) jumped out
the window of the Theater and landed on him; police had gone to the Theater
that evening in response to an incident involving the doorman in which some
customers were sprayed with pepper spray; the Theater employed a doorman to
attract and deal with customers; an officer went inside the Theater looking for
the doorman and was told by the manager there were no other males on the
premises; the manager was on the phone with the Theater’s lawyer at the time
and told the officer he could not look through the rooms without a search
warrant. The officer saw a man in one of
the rooms, but when he was given permission and entered the room the man had
disappeared and the window was open; the man (Lund) had jumped out the window
and was apprehended by police after a chase; the defendants claimed Lund did
not work for the Theater but was a friend of the manager’s who just hung
around, though several times after the incident one of the officers saw Lund
standing in front of the Theater’s door behind a roped barricade. Counsel also stated that Lund
was later hired as a doorman at the bar owned by plaintiff’s wife, but they
fired him when they discovered he was the person who had injured
plaintiff. Counsel acknowledged there
were no records showing who was working at the Theater that night because the
Theater did not keep such records, but stated that Lund
was acting within the course and scope of his duties as the doorman for the
Theater that night.
After
hearing the opening statement by plaintiff’s counsel, the trial court granted
the motion for nonsuit and dismissed the action against defendants. It concluded no reasonable trier of fact
could find the actions by Lund were
in furtherance of his employment, assuming he was an employee of the
Theater.
II. DISCUSSION
“A
defendant is entitled to nonsuit if the trial court determines as a
when viewed most favorably to the plaintiff under the substantial evidence
test, is insufficient to permit a jury to find in his favor.†(Mendoza
v. City of West Covina (2012) 206 Cal.App.4th 702, 713.) Where, as here, the nonsuit was based on the
plaintiff’s opening statement, we must assume the plaintiff can prove all the
facts set forth. (Michael E.L. v. County of San Diego (1986) 183 Cal.App.3d 515,
533.) Nonsuit is appropriate where the
plaintiff’s opening statement or evidence raises nothing more than speculation,
suspicion, or conjecture. (
194, 198, fn. 1.) On appeal, we review a
grant of nonsuit de novo. (
1538, 1541–1542.)
Respondeat
Superior
Plaintiff
claims the trial court erred in granting defendants’ motion for nonsuit because
the facts set forth in the opening statement would support a verdict in his
favor under a theory of respondeat superior.
We disagree.
Under
the doctrine of respondeat superior, an employer is vicariously liable for the
torts of its employees committed within the scope of their employment. (Lisa
M. v. Henry Mayo Newhall Memorial Hospital (1995) 12 Cal.4th 291, 296 (
a question of fact, but it becomes a question of law when the relevant facts
are undisputed and no conflicting inferences are possible. (Farmers
Ins. Group v. County of Santa Clara (1995) 11 Cal.4th 992, 1019 (
activity by an employee fell within the scope of the employment. (Delfino
v. Agilent Technologies, Inc. (2006) 145 Cal.App.4th 790, 812 (
An
employer is vicariously liable for an employee’s tort when that tort is a
generally foreseeable consequence of the employment activity. (Vogt
v. Herron Construction, Inc. (2011) 200 Cal.App.4th 643, 649.) In this context, a “foreseeable†risk simply
means that “ ‘ “in the context of the particular enterprise an employee’s
conduct is not so unusual or startling that it would seem unfair to include the
loss resulting from it among other costs of the employer’s business.†’
†(Ibid.) The question is whether the risk was “typical
of or broadly incidental to the enterprise undertaken by the employer†or an
“ ‘outgrowth’ †of the employment.
(Lisa M., supra, 12 Cal.4th at p. 298; see also Myers v. Trendwest Resorts, Inc. (2007) 148 Cal.App.4th 1403,
1428.)
Although
an employee’s willful, malicious, and even criminal torts may fall within the
scope of employment, “an employer is not strictly liable for all actions of its
employees during working hours.†(
“The nexus required for respondeat superior liability—that the tort be
engendered by or arise from the work—is to be distinguished from ‘but for’
causation. That the employment brought
the tortfeasor and victim together in time and place is not enough.†(Lisa
M., supra, 12 Cal.4th at p.
298.)
The
parties in this case agree that plaintiff was injured when Lund jumped out the
second storey window of the Theater while trying to evade the police. Assuming the facts recited in plaintiff’s
opening statement were sufficient to support an inference that Lund was
employed by the Theater as its doorman, his flight was not an outgrowth of that
employment and was not an activity broadly incidental to the Theater’s
operations. (Lisa M., supra, 12
Cal.4th at p. 298.)
Plaintiff
argues that Lund’s flight fell within the scope of his employment because the
police were investigating an altercation that involved his duties as a
doorman. While the incident leading to
the investigation might well have been one for which respondeat superior
liability could have been imposed (assuming an employment relationship could be
established), Lund’s flight from the police was an activity that cannot be
fairly characterized as an outgrowth of, or incidental to, his employment (if
any) at the Theater. Rather, his flight
was an “aberrant decision to engage in conduct unrelated to his duties†(
The
decision in Lisa M., cited by
plaintiff, is illustrative. There, a
patient brought suit against a hospital after one of its ultrasound technicians
committed sexual battery while examining her.
The court concluded that absent a showing of affirmative negligence on
the part of the hospital, the technician’s conduct was “too attenuated†to
impose vicarious liability. (
The sexual battery “did not derive from any events or conditions of [the
technician’s] employment, nor were his actions provoked by anything that
occurred during the prescribed examination.
Hospital, by employing the technician and providing the ultrasound room,
may have set the stage for his misconduct, but the script was entirely of his
own, independent invention.†(
itself an action within the scope of employment, seems more foreseeable than
Lund’s conduct in this case, where the Theater could not be expected to
anticipate that Lund would react to a police investigation by jumping out a
window and attempting to flee.
Strict Liability for Ultrahazardous Activity
Plaintiff
contends he should have been permitted to proceed to trial on the theory,
asserted in his trial brief, that defendants were strictly liable for Lund’s
flight from the police as an ultrahazardous or abnormally dangerous
activity. This theory was not addressed
by either the parties or the court during the proceedings on the motion for
nonsuit. Assuming the issue is properly
before us on appeal, it fails as a matter of law. (City of Livermore
v. Baca (2012) 205 Cal.App.4th 1460, 1465.)
In
determining whether an activity is abnormally dangerous or ultrahazardous, a
court considers the “ ‘(a) existence of a high degree of risk of some harm
to the person, land or chattels of others; (b) likelihood that the harm that
results from it will be great; (c) inability to eliminate the risk by the
exercise of reasonable care; (d) extent to which the activity is not a matter
of common usage; (e) inappropriateness of the activity to the place where it is
carried on; and (f) extent to which its value to the community is outweighed by
its dangerous attributes. . . .
[Citation.]’ †(
Cal.App.3d 902, 906.) “ ‘The
essential question is whether the risk created is so unusual, either because of
its magnitude or because of the circumstances surrounding it, as to justify the
imposition of strict liability from the harm that results from it, even though
it is carried on with all reasonable care.
In other words, are its dangers and inappropriateness for the locality
so great that, despite any usefulness it may have for the community, it should
be required as a matter of law to pay for any harm it causes without the need
of a finding of negligence.’
[Citation.]†(
What
constitutes an ultrahazardous activity is an issue of law. (Luthringer
v. Moore (1948) 31 Cal.2d 489, 496.)
Examples of ultrahazardous activities include the keeping of animals
that are likely to trespass or have known dangerous propensities, and dangerous
uses of land, such as the storage of explosives, blasting, and
crop-dusting. (Goodwin v. Reilley (1985) 176 Cal.App.3d 86, 91 (
vehicle under the influence of alcohol, though indisputably dangerous, is not
considered ultrahazardous. (
depart from social standards as to fall within the traditional bounds of
negligence—usually because the advantages which it offers to the defendant and
the community outweigh even the abnormal risk; but which is still so far
socially unreasonable that the defendant is not allowed to carry it on without
making good any actual harm which it does to his neighbors.’ †(Id.
at p. 91.)
Plaintiff
argues the Theater’s manager and employee, Michael Canavan, engaged in
ultrahazardous activity by assisting Lund, a crime suspect, in his evasion of
the police. Assuming the facts recited
in the opening statement can be so construed, we disagree that strict liability
would be appropriate under the facts of this case. The rationale for imposing strict liability
is “certain activities under certain conditions may be so hazardous to the
public generally, and of such relative infrequent occurrence, that it may well
call for strict liability as the best public policy.†(Luthringer,
supra, 31 Cal.2d at
p. 500.) Assisting another in
evading the police is an activity that can take many forms, many of which will
pose no general risk to the public at all, and all of which can be adequately
handled, for purposes of liability, under a negligence rubric. (See Goodwin,
supra, 176 Cal.App.3d at p. 92.)
DISPOSITION
The
judgment (order granting nonsuit and dismissing the case as to defendants Peter
Lambertson and 1054 Kearny, LLC) is affirmed.
Defendants shall recover their ordinary costs on appeal.
NEEDHAM,
J.
We concur.
JONES, P. J.
SIMONS, J.
name="_ftn1" title=""> [1] Plaintiff did not argue that defendants were
themselves negligent.
