Steward v. Bd. of Trustees Cal. State
Univ.
Filed 3/21/13 Steward v. Bd. of Trustees Cal. State Univ. CA4/1
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 This opinion has not been certified for
publication or ordered published for purposes of rule 8.1115
COURT
OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION
ONE
STATE
OF CALIFORNIA
>
NORMA STEWARD, Plaintiff and Appellant, v. BOARD OF TRUSTEES OF THE CALIFORNIA STATE UNIVERSITY, Defendant and Respondent. | D061558 (Super. Ct. No. 37-2010-00057080-CU-PO-NC) |
APPEAL from
a judgment of the Superior Court
of
County,
Timothy M. Casserly, Judge.
Affirmed.
I.
INTRODUCTION
Plaintiff
Norma Steward appeals from a judgment entered in favor of defendant Board of
Trustees of the California State University (CSU). The trial court granted CSU's motion for
undisputed facts establish that CSU may not be held liable for an accident
caused by CSU employee (and codefendant in the underlying action) Dennis
Guseman. Guseman was on his way to have
breakfast with a former colleague before going to work when the accident
occurred.
On appeal,
Steward argues that summary judgment in CSU's favor was improper because there
remain material questions of fact related to either of two possible theories of
respondeat superior liability. First,
she contends that the trial court erred in concluding that, as a matter of law,
Guseman's breakfast meeting with his former colleague was a personal errand and
did not come within the scope of his employment. According to Steward, if the trial court had
properly concluded that there remains a factual dispute as to whether the
breakfast meeting had a business purpose, then it is possible that Guseman
could be found to have been on his way to "work" at the time of the
accident, and that his commute to the breakfast meeting could therefore be
considered to fall within the scope of his employment.
Steward next argues in the
alternative that even if Guseman's planned breakfast was a purely personal
endeavor as a matter of law, CSU could still be liable under the theory that
Guseman's commute that morning was within the scope of his employment, and that
the breakfast meeting was simply a minor deviation from, rather than a
substantial abandonment of, his commute to work at the CSU San Marcos (CSUSM)
campus.
We affirm the judgment in favor of
CSU because Steward cannot prove that Guseman's conduct in driving to breakfast
that morning was reasonably related to his job, or that his personal errand to
meet a former colleague and friend for breakfast was reasonably foreseeable in
light of CSU's business or Guseman's job responsibilities, such that CSU may be
held liable for the accident that Guseman caused on his way to breakfast.
II.
FACTUAL AND
PROCEDURAL BACKGROUND
A.
1. The
accident
On October 23, 2009, at approximately 8:05 a.m., Guseman was driving eastbound on La
Plaza Drive, toward an intersection at San
Pablo Drive, in San Marcos. Upon reaching the intersection, Guseman
attempted to turn left onto San Pablo Drive. Steward and her husband were crossing the
intersection on foot at that time.
Guseman struck Steward and her husband with his vehicle. Steward's husband died from injuries he
incurred as a result of the accident, and Steward suffered physical and
emotional injuries.
2. Guseman's
employment at CSUSM
From 2003
to June 2011, Guseman was the dean of the College
of Business Administration at
CSUSM. In this role, Guseman had a
number of responsibilities. Guseman's
primary function was to serve as the chief academic and administrative leader
of the College of Business
Administration.
Guseman hired teachers, mentored faculty, managed budgets, engaged in
fundraising, and promoted the college.
Guseman
generally arrived at work at around 9:00 a.m. However, he did not have regular working
hours and was not required to be at the college at any certain time. Guseman sometimes traveled for work, but he
typically worked from his office on the CSUSM campus. Although Guseman was expected to travel for
work on occasion and often used his own vehicle to do so, CSUSM did not require
that Guseman own or operate a vehicle for purposes of this travel. CSUSM did not reimburse Guseman for travel
between his home and his campus office.
However, when Guseman drove his own car for other work-related purposes,
he would submit mileage reimbursement requests.
3. The
evidence regarding Guseman's planned breakfast on the morning of the accident
On the morning of the accident,
Guseman left his home in Oceanside, California
to go to a restaurant called Leann's, which is located in the Lake
San Marcos area. Guseman had planned to meet his friend and
former CSUSM colleague, Vicki Golich, and her husband for breakfast that
morning at 8:00 a.m. Golich had been the dean of Arts and Sciences
at CSUSM from 2003 to 2009. In the
summer of 2009, Golich left her position at CSUSM to become a provost at Metropolitan
State College in Colorado.
While Golich was employed at CSUSM,
she and Guseman would socialize outside of work. For example, they attended jazz concerts,
went to the races at the Del Mar Race Track, and visited some pubs near the
campus. When Golich and Guseman attended
social events together, either their spouses or other coworkers from CSUSM were
present.
Golich,
Guseman, and another dean at CSUSM, Mark Baldwin, would occasionally have
breakfast together at Leann's. CSUSM had
no role in organizing these breakfast meetings and did not require that the
deans attend these breakfasts. Rather,
the friends got together because they enjoyed each other's company.
On October 9, 2009, Golich e-mailed
Guseman and Baldwin to inform them that she and her husband would be returning
to San Marcos later in
October. She indicated that she was
coming back to the San Diego area
for a weekend, mainly to attend a charity event at an organization affiliated
with CSUSM that supports arts education.
Golich asked whether Baldwin and Guseman would like to meet her for
breakfast on the morning of October 23.
Guseman responded that it would be great to see Golich and "catch
up," and said that he would arrange his schedule so that he could meet her
for breakfast.
title="">[2]
Golich
testified that she intended to discuss Guseman's "dating escapades"
and "gossip about work" at the breakfast. She also anticipated that the group would
discuss the kind of house that she and her husband were looking for in
Colorado, as well as her impressions of her new job. According to Golich, they would probably also
have discussed their disagreement with the CSUSM provost's decision regarding
Golich's replacement. Golich believed
that the conversation would likely have focused on personal things, in part
because her husband was going to be joining them.
Golich
testified that although she had planned to discuss the current gossip about
things that were going on at CSUSM, her interest in those matters was personal,
and she did not have any "business interest" or "institutional
purpose" in what was going on at CSUSM.
She acknowledged that her interest in "gossip" about CSUSM
included finding out about how CSUSM was functioning and what the faculty's
views were about how things were being run at the school. She anticipated that they might also discuss
problems involving shared governance, and the possibility of a no-confidence
vote by the faculty regarding the provost.
Guseman confirmed that he had no
business purpose for attending the breakfast and said that he did not intend to
conduct business while at the breakfast.
Rather, Guseman intended to catch up with his friend and former
colleague. He did intend to discuss the
current happenings at CSUSM with Golich, including the possible no-confidence
vote on the provost. Guseman e-mailed
Golich, "It will be interesting to see what happens here. The faculty are talking about taking a vote
of no confidence on the Provost, maybe even next week—I have ordered my popcorn
already so I will be sure to have plenty to watch all of the action."
CSUSM
neither required nor requested that Guseman attend the breakfast with Golich
when she came in from out of town.
Guseman's supervisor was unaware that he would be meeting Golich for
breakfast. Guseman's secretary also did
not know about Guseman's breakfast plans that morning.
Guseman had
planned to spend approximately two hours at breakfast with Golich and her
husband that morning, and to drive to the CSUSM campus after the breakfast to
attend a 10:00 a.m. meeting.
B.
Steward
filed a complaint against Guseman and CSU on July 6, 2010, alleging a single
cause of action for negligence.
CSU filed a
motion for summary judgment on August 31, 2011.
After full briefing on the motion, the trial court held a hearing on
November 18, 2011.
On December
5, 2011, the trial court entered a minute order granting judgment in favor of
CSU. The clerk entered judgment on
February 1, 2012. Steward filed a timely
notice of appeal.
III.
DISCUSSION
A.
1.
A moving party is entitled to
summary judgment when the party establishes that it is entitled to the entry of
judgment as a matter of law. (Code Civ.
Proc., § 437c,
subd. (c).) A
defendant may make this showing by establishing that the plaintiff cannot
establish one or more elements of all of his causes of action, or that the
defendant has a complete defense to each cause of action. (Towns
v. Davidson (2007) 147 Cal.App.4th 461, 466.) "[O]nce a moving defendant has 'shown
that one or more elements of the cause of action, even if not separately
pleaded, cannot be established,' the burden shifts to the plaintiff to show the
existence of a triable issue; to meet that burden, the plaintiff 'may not rely
upon the mere allegations or denials of its
pleadings . . . but, instead, shall set forth the specific
facts showing that a triable issue of material fact exists as to that cause of
action . . . .'
[Citations.]" (
Cal.4th 465, 476–477.)
In reviewing a trial court's ruling
on a motion for summary judgment, the reviewing court makes " 'an
independent assessment of the correctness of the trial court's ruling, applying
the same legal standard as the trial court in determining whether there are any
genuine issues of material fact or whether the moving party is entitled to
judgment as a matter of law.
[Citations.]' [Citation.]" (Trop
v. Sony Pictures Entertainment, Inc. (2005) 129 Cal.App.4th 1133, 1143.)
2.
liability
"Under the theory of respondeat superior, an
employer is vicariously liable for an employee's torts committed within the
scope of employment." (
Cal.App.4th 1552, 1558 (Bailey).) Whether an employee was acting within the
course and scope of his employment is generally a question of fact, but if the
facts are undisputed and no conflicting inferences are possible, the question
is one of law. (Munyon v. Ole's, Inc. (1982) 136 Cal.App.3d 697, 701.)
Respondeat superior liability is
imposed for three policy reasons: "(1) to prevent recurrence of the
tortious conduct; (2) to give greater assurance of compensation for the victim;
and (3) to ensure that the victim's losses will be equitably borne by those who
benefit from the enterprise that gave rise to the injury." (Mary
M. v. City of Los Angeles (1991) 54 Cal.3d 202, 209). Stated another way, " ' "[the]
modern justification for vicarious liability [at least where liability is
predicated upon negligence] is a rule of policy, a deliberate allocation of a
risk. The losses caused by the torts of
employees, which as a practical matter are sure to occur in the conduct of the
employer's enterprise, are placed upon that enterprise itself, as a required
cost of doing business. . . . " '
[Citations.] 'The principal
justification for the application of the doctrine of respondeat superior . . . is the fact that the employer may spread
the risk through insurance and carry the cost thereof as part of his costs of
doing business.' [Citations.] '[The] modern and proper basis of vicarious
liability of the master is not his control or fault but the risks incident to
his enterprise.' [Citation.]" (Huntsinger
v. Glass Containers Corp. (1972) 22 Cal.App.3d 803, 808 (
148 Cal.App.3d at pp. 463-464 (Lazar)
[The losses caused by the torts of employees
" ' " 'are placed upon the employer
because, having engaged in an enterprise which will, on the basis of past
experience, involve harm to others through the torts of employees, and sought
to profit by it, it is just that he, rather than the innocent injured
plaintiff, should bear them; and because he is better able to absorb them, and
to distribute them, through prices, rates or liability insurance, to the
public, and so to shift them to society, to the community at
large' " ' "].)
" ' "[W]here
the question is one of vicarious liability, the inquiry [with respect to the
question whether an employee was acting within the scope of his employment]
should be whether the risk was one 'that may fairly be regarded as typical of
or broadly incidental' to the enterprise undertaken by the employer." '
" (Farmers Insurance Group v. County of Santa Clara (1995) 11 Cal.4th
992, 1003 (Farmers), citations and
italics omitted.) "Categorization
of an employee's action as within or outside the scope of employment . . .
begins with a question of foreseeability, i.e., whether the accident is part of
the inevitable toll of a lawful enterprise." (Lazar,
supra, 148 Cal.App.3d at p. 464.)
" ' "[F]oreseeability" [in the context of
determining scope of employment] merely 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.
[Citation.]' . . .
[Citations.]" (Farmers, supra, at p.
1004, italics omitted.)
Courts have determined that an
employer may sometimes be liable for an employee's wrongful conduct that occurs
while the employee is undertaking acts that are "necessary to the comfort,
convenience, health, and welfare of the employee" while that employee is
at work, even though those acts are entirely personal. (Baptist
v. Robinson (2006) 143 Cal.App.4th 151, 161 (Baptist).) Further, in
situations in which an employee combines his or her personal business with the
employer's business, or is " ' "attending to both at substantially
the same time," ' " the employee may be found to be within the scope
of his or her employment unless one could reasonably conclude only that the
employee was not directly or indirectly serving the employer's business. (Ibid.)
However, an employer is not
strictly liable for every tort committed by an employee during working
hours. (Baptist, supra, 143
Cal.App.4th at p. 161.) Specifically, if
an employee " 'substantially deviates from the employment duties for
personal purposes,' " or if the employee's tort is "personal in
nature," the mere fact that an employee is at the workplace and was
attending his or her work-related duties just before and/or just after the
wrongful act will not permit imposition of respondeat superior liability on an
employer. (Ibid.) In such cases, "
'the losses do not foreseeably result from the conduct of the employer's
enterprise and so are not fairly attributable to the employer as a cost of
doing business.' [Citation.]" (Ibid.)
CACI No. 3720 reflects the two ways
in which a causal nexus or reasonable relationship between an employee's duties
and the conduct that causes injury may be established. That instruction provides "that in order
to show that an employee was acting within the scope of employment when a
plaintiff was harmed, the plaintiff must show that the conduct was either
'reasonably related to the kinds of tasks that the [employee/agent] was
employed to perform' or was 'reasonably foreseeable in light of the employer's
business or the [agent's/employee's job] responsibilities.' [Citation.]" (Baptist,
supra, 143 Cal.App.4th at pp.
161-162.)
a. The
going and coming rule
Employees generally are not
regarded as acting within the scope of employment during their commutes to and
from work. This rule is commonly
referred to as the " 'going and coming rule,' " and is based
on the notion that the employee is not ordinarily rendering services to the
employer while commuting. (
Bank (1991) 233 Cal.App.3d 598 (Blackman)
[an employee is considered to be acting outside the scope of employment while
engaged in the ordinary commute to and from the workplace under the going and
coming rule].) In other words,
"[t]he risks associated with an employee's commute to and from work
generally are not . . . inherent in, typical of, or created
by their work." (
(2005) 132 Cal.App.4th 458, 469-470 (Hartline).)
b.
There are several exceptions to the
going and coming rule. The common factor
in these exceptions is that the employee was making a special, non-routine trip
on behalf of his or her employer at the time the plaintiff was harmed, or the
employee's driving the employee's own vehicle ultimately benefited his or her
employer. (Hinson v. Workmen's Comp. Appeals Board (1974) 42 Cal.App.3d 246,
249.)
While imposition of respondeat
superior liability does not generally require that an employee's actions
benefit the employer, courts have required injured plaintiffs to show some
benefit to the employer when invoking an exception to the
"going-and-coming rule." (See
to employer where employee injured third party in car accident while on a paid
break]; Caldwell v. A.R.B., Inc.
(1986) 176 Cal.App.3d 1028, 1033, 1038-1039 (Caldwell) [employer not held liable for plaintiff's injuries from
car accident caused by employee where all employees were paid travel allowance
whether or not they actually drove their car to work]; Anderson v. Pacific Gas & Electric Co. (1993) 14 Cal.App.4th
254, 261 (Anderson) [employer did not
receive a sufficient benefit from the payment of a travel allowance so as to
impose liability for plaintiff's injuries caused by employee in car
accident].) Thus, exceptions to the
going and coming rule have been found when "the employee's trip involves
an incidental benefit to the employer [that is] not common to commute trips by
ordinary members of the work force."
(Blackman,
(i.) The
"special errand" exception
One exception to the going and
coming rule, which has been referred to as the "special errand"
exception, applies where the employee is on a special errand for the employer,
"either as part of his regular duties or at a specific order or request of
his employer." (
The employer is deemed "liable for torts committed by its employee
while traveling to accomplish a special errand because the errand benefits the
employer. [Citation.]" (Tognazzini
v. San Luis Coastal Unified School Dist. (2001) 86 Cal.App.4th 1053,
1057.) An employee who is coming from
his or her home or returning to it in the course of a special errand " 'is
considered to be in the scope of his employment from the time that he starts on
the errand until he has returned or until he deviates therefrom for personal
reasons.' " (Felix v. Asai (1987) 192 Cal.App.3d 926, 931 (Felix).)
The special errand exception has
been held to apply, for example, when an employee is called to work to perform
a task for the employer at an irregular time, and when an employer asks an
employee to perform a special errand on the employee's commute home from
work. (Felix, supra, 192
Cal.App.3d at pp. 931-932.) In both
situations, the employee's entire trip is considered to fall within the scope
of employment. (Ibid.) Activities that have
been held to constitute special errands include "picking up or returning
tools used on the job, attendance at an employment social function when an
employee's attendance is expected and it benefits the employer, and a trip in
which the employee responds to a service call when the employee is on call for
the employer's business. [Citation.]" (Caldwell,
supra, 176 Cal.App.3d at pp.
1036-1037.)
(ii.) The
"required vehicle" exception
Another exception to the going and
coming rule is where the employer requires that the employee use the employee's
own vehicle "on the job." (
707, 722–723.) This exception is often
referred to as the "required vehicle" exception.
circumstances under which this exception will be deemed to apply to those
situations in which the employee's use of his or her own vehicle provides a
benefit to the employer, even though the employer did not explicitly
vehicle:
" 'A well-known exception to the going-and-coming
rule arises where the use of the car gives some incidental benefit to the employer. Thus, the key inquiry is whether there is an
incidental benefit derived by the employer.
[Citation.]' [Citation.] This exception to the going and coming rule,
carved out by this court in Huntsinger,
supra, 22 Cal.App.3d 803, has been
referred to as the 'required-vehicle' exception. [Citation.]
The exception can apply if the use of a personally owned vehicle is
either an express or implied condition of employment [citation], or if the
employee has agreed, expressly or implicitly, to make the vehicle available as
an accommodation to the employer and the employer has 'reasonably come to rely
upon its use and [to] expect the employee to make the vehicle available on a
regular basis while still not requiring it as a condition of employment.' [Citation.]" (Lobo,
supra, 182 Cal.App.4th at p. 301,
italics and fn. omitted.)
The theory
underlying the required vehicle exception to the going and coming rule is that
"when a business enterprise requires an employee to drive to and from its
office in order to have his vehicle available for company business during the
day, accidents on the way to and from the office are statistically certain to
occur eventually, and, the business enterprise having required the driving to
and from work, the risk of such accidents are risks incident to the business
enterprise.' [Citation.]" (State
Farm Mut. Auto. Ins. Co. v. Haight (1988) 205 Cal.App.3d 223, 241-242.)
c. Substantial
departures from the employer's business
Even if an exception to the going
and coming rule applies to bring an employee's commute within the scope of
employment, there are still certain circumstances under which an employee will
be deemed not to be acting within the scope of employment during that
commute. In particular, if the employee
substantially departs from what may fairly be deemed the employer's business,
the employee will not be held to be acting within the scope of employment. "[An] employee may yet be found outside
the scope of his employment [during an otherwise covered commute] if at the
time of the accident he has completely abandoned his employer's business for
personal reasons. [Citations.] To constitute an abandonment, however, the
deviation or departure from the employer's business to pursue a personal errand
must be substantial and complete."
(Felix, supra, 192 Cal.App.3d at p. 932.)
"A mere deviation for personal reasons will be
insufficient." (
The distinction between an
employee's substantial deviation that precludes respondeat superior liability
and an employee's incidental act that permits respondeat superior liability was
explored in Lazar,
464-467. The Lazar court explained that the key to making this determination is
whether the employee's action was foreseeable as part of the employer's
business. "Categorization of an
employee's action as within or outside the scope of employment . . . begins
with a question of foreseeability, i.e., whether the accident is part of the
inevitable toll of a lawful enterprise."
(Id. at p. 464.) "One traditional means of defining this
foreseeability is seen in the distinction between minor 'deviations' and
substantial 'departures' from the employer's business. The former are deemed foreseeable and remain
within the scope of employment; the latter are unforeseeable and take the
employee outside the scope of his employment." (Id.
at p. 465.)
"In determining whether an
employee has completely abandoned pursuit of a business errand for pursuit of a
personal objective, a variety of relevant circumstances should be considered
and weighed. Such factors may include
the intent of the employee, the nature, time and place of the employee's
conduct, the work the employee was hired to do, the incidental acts the
employer should reasonably have expected the employee to do, the amount of
freedom allowed the employee in performing his duties, and the amount of time
consumed in the personal activity."
(Felix, supra, 192 Cal.App.3d at pp. 932-933.)
Although the question whether an
employee has merely deviated from his commute or special errand or instead has
substantially departed from the employer's business is typically a question of
fact for a jury to determine, a court may determine that an employee was acting
outside the scope of the employment as a matter of law where the evidence
clearly shows complete abandonment of the employer's business. (Felix,
supra, 192 Cal.App.3d. at p. 933.)
B. Analysis
Steward argues that summary
judgment in CSU's favor was improper because there remain material questions of
fact with respect to her two theories of respondeat superior liability. According to Steward, the trial court should
have concluded that there remains a factual dispute as to whether the breakfast
meeting had a business purpose, such that Guseman may be found to have been on
his way to "work" at the time of the accident. Steward contends that if the breakfast
meeting was work-related, then there
remains an additional factual question as to whether Guseman's commute to the
breakfast meeting was within the scope of Guseman's employment either because
Guseman's attendance at the breakfast was a "special errand" for his
employer, or because Guseman was driving a "required vehicle" at the
time of the accident.
Alternatively, Steward argues that
even if the trial court was correct in determining that Guseman's planned
breakfast with Golich was a purely personal endeavor as a matter of law,
summary judgment in CSU's favor was still improper because CSU could be held
liable under the theory that Guseman was commuting to the CSUSM campus at the
time he stopped for this breakfast meeting, that his commute was within the
scope of his employment under the required vehicle exception, and that his
stopping for breakfast that morning was merely a minor deviation from his commute.
We conclude that summary judgment
in favor of CSU was appropriate because
(1) Guseman's conduct in driving to breakfast that morning
was not within the scope of his employment because the breakfast cannot fairly
be deemed work-related, and he was therefore not commuting to "work"
while on his way to the breakfast, and (2) even if the "required
vehicle" exception applies to bring Guseman's normal commute to CSU within
the scope of respondeat superior liability, Guseman's personal errand to go to
the breakfast that morning was a substantial departure from his commute, such
that he completely abandoned his employer's business in going to the breakfast.
1. No
triable issue of fact exists as to whether the breakfast meeting was within the
scope of Guseman's employment
Steward
contends that the trial court erred in concluding that the planned breakfast to
be attended by Guseman, Golich and her husband was a personal errand, and that
it did not fall within the scope of Guseman's employment as a matter of law. According to Steward, if the trial court had
determined that the breakfast meeting was related to Guseman's duties as dean,
then Guseman's travel to the breakfast meeting would have come within either
the "special errand" exception to the going and coming rule, or the
"required vehicle" exception to the going and coming rule, and CSU
could thus be liable for the damages caused by Guseman's conduct. We conclude that, as a matter of law, the
planned breakfast meeting was not typical of, or broadly incidental to, the
enterprise that CSUSM has undertaken, and that the meeting was therefore not
within the scope of Guseman's employment.
Steward
asserts that there is "substantial evidence showing that Guseman had a
work purpose for attending the breakfast meeting." In making this argument, Steward relies
heavily on the idea that as an academic dean, Guseman was "not focused on
accomplishing specific daily tasks" but instead, had to "develop the
best policies to help the faculty accomplish their long-term research or
teaching goals," and that in his capacity as dean, it was
"important" for him to "exchange . . . ideas
with other college administrators."
Steward cites to evidence in the record showing that deans from various
business colleges within the CSU system get together several times a year, and
evidence that Guseman attended these meetings, as well as meetings with other
business college administrators in the western United States. In support of this argument, Steward quotes
Regina Eisenbach, interim dean of the College of Business Administration at
CSUSM at the time the depositions in this case were taken, as stating that the
"purpose of the business college deans' meetings is 'to share what's going
on their campuses and help each other, provide advice.' "
Steward's
apparent purpose in reciting evidence concerning meetings of academic
administrators is to demonstrate that one of the purposes of Guseman and
Golich's planned breakfast meeting was to "educate each other with their
knowledge and experience," and that the breakfast meeting at Leann's was
therefore a work-related meeting. She
points out that Guseman and Golich's e-mail exchanges prior to the date of the
breakfast meeting suggest that they intended to discuss "at least two
major topics of importance to Guseman's CSUSM job: (a) shared governance; and
(b) the potential vote of no confidence on the Provost." Based on the content of these e-mails, she
asserts, the breakfast meeting "was going to be work-related."
The
evidence simply does not support the inference that Steward would have us
draw. Guseman and Golich were former
colleagues and friends. They socialized
outside of work together because they enjoyed each others' company. When they were both working at CSUSM, they
and Baldwin would meet for breakfast every month or so to discuss personal
issues and things that were going on at the CSUSM campus. However, CSUSM neither required these
administrators to get together for breakfast nor requested that they do
so. No one at CSUSM requested that
Guseman meet with Golich for breakfast on October 23, 2009. In fact, Guseman's supervisor was unaware
that he planned to meet Golich for breakfast that morning.
Guseman and
Golich both intended for this breakfast meeting to be "more focused on the
personal things." Golich planned to
ask Guseman, who was single, about his dating life, and also planned to talk
about the kind of house that she and her husband were looking for. Guseman did not intend to conduct any
business during the breakfast and did not have a work-related purpose in going
to the breakfast. Rather, Guseman wanted
to meet with Golich to have a social breakfast so that they could "catch
up on" what was going on in each other's lives.
Based on the e-mail exchange
between Guseman and Golich to plan the breakfast, it does appear that Guseman
and Golich would likely have discussed various topics related to the goings-on
at their respective workplaces. However,
the evidence shows that neither Guseman nor Golich viewed the planned breakfast
as a "working" meeting or as a time to exchange ideas about academia
or their respective institutions.
Guseman and Golich repeatedly referred to their breakfast meeting as a
time to "gossip" about what was going on at CSUSM and at the
institution at which Golich was employed.
Although they joked about this fact, it is clear from their e-mail
communications that this meeting was to be a personal interaction—one in which
they planned to catch up and gossip, as many former colleagues and friends
do—and that it was not intended to be a meeting at which they would be
exchanging ideas for the purpose of professional development. For example, on the day prior to the arranged
meeting, Guseman checked in with Golich by e-mail to inform her that their
other friend, Baldwin, would not be able to join them, and to ask her whether
she still wanted to meet for breakfast.
In response, Golich wrote, "Would love
to. . . . I'll even bring
Doug [Golich's husband] along! . . . [¶] Looking forward to seeing you and gossiping—I
mean learning about how things are going . . . .J" Guseman responded, "Bringing Doug would
be great. I have a faculty meeting at 10am, so to be sure [I can make it to the
meeting on time] can we do 8am at Leann's—unless there is somewhere else you
would like to go. There is lots of
social meeting and not a work-related one is further supported by the fact that
Golich planned to bring her husband along.
Although it seems inevitable that
two former colleagues who had been friends for many years and who plan to have
breakfast together will likely discuss other mutual friends and colleagues at
their planned meeting, and that they might discuss various topics related to
their jobs, it would not be reasonable to conclude that this kind of
interaction is the type of activity that is even broadly incidental to the
enterprise undertaken by an academic institution. The fact that friends and former colleagues
may talk about the goings-on at their respective current workplaces does not
turn a social encounter into a work-related meeting for which an employer may
fairly be held liable for injuries caused by an employee engaged in that
activity.
One of the central purposes for
respondeat superior liability is "to ensure that the victim's losses will
be equitably borne by those who benefit from the enterprise that gave rise to
the injury." (Mary M. v. City of Los Angeles, supra,
54 Cal.3d at p. 209.) Respondeat
superior liability should be imposed when the loss caused by the tort of an
employee is of the type that is "sure to occur in the conduct of the
employer's enterprise," such that it would be fair to ask the employer to
spread the risk through insurance and carry the costs as part of doing
business. (Huntsinger, supra, 22
Cal.App.3d at p. 808.) We conclude that
Guseman would not have been acting within the scope of his employment in
attending the breakfast because the breakfast meeting between Guseman, Golich
and Golich's husband was a personal errand, and was not work-related. In our view, it would be wholly
CSU's business the loss that resulted from Guseman's decision to meet with a
friend and former colleague for a social breakfast on the basis that they might
have engaged in some conversation about CSUSM or its employees during that
meeting.
2. No
triable issue of fact exists as to whether Guseman's personal errand was a
substantial departure from CSUSM's business
Steward contends that even if the
breakfast meeting was a purely personal errand, Guseman's driving to Leann's
that morning should be considered to fall within the scope of his employment
under the "required vehicle" exception to the going and coming rule. Steward maintains that CSU may still be held
liable for Guseman's acts because Guseman was en route to the breakfast meeting
during the course of his commute to work, and this meeting was simply a minor
deviation from his morning commute. We
conclude that even if we were to assume for purposes of this appeal that
Guseman's commute was within the scope of his employment under the
"required vehicle" exception
it would not be reasonable to conclude that Guseman's planned two-hour
breakfast with a friend and her husband to catch up on the latest gossip about
each other's lives and the people and events on the CSUSM campus was merely a
minor deviation from CSUSM's business.
CACI No. 3723 provides the
instruction on substantial deviations from an employer's business. That instruction states:
"If [an employee/a representative] combines his or
her personal business with the employer's business, then the employee's conduct
is within the scope of [employment/authorization] unless the
[employee/representative] substantially deviates from the employer's business.
"Deviations that do not amount to abandoning the
employer's business, such as incidental personal acts, minor delays, or
deviations from the most direct route, are reasonably expected and within the
scope of employment.
"[Acts that are necessary for [an employee/a
representative]'s comfort, health, and convenience while at work are within the
scope of employment.]" (CACI (2013)
No. 3723.)
The
"Directions for Use" of this instruction explain, in part: "This instruction is closely related to
CACI No. 3720, Scope of Employment. It focuses on when an act is not within the
scope of employment."
Steward
contends that there is a material factual dispute regarding whether Guseman's
planned breakfast with Golich and her husband was merely a minor deviation in
which Guseman did not wholly abandon his employer's business (i.e., his
commute).
In
determining whether an employee has completely abandoned his business purpose
in pursuit of a personal objective, we consider such factors as the employee's
intent, the nature of, and the circumstances surrounding, the employee's
conduct, the employee's work generally, the incidental acts that the employer
should reasonably have expected, the freedom that the employee enjoyed, and the
duration of the personal activity. (
In this case, the breakfast meeting that Guseman planned with Golich was
a complete abandonment of his business purpose in commuting to work. The breakfast meeting is readily distinguishable
from the minor personal task undertaken by the employee in Lazar, supra, 148
Cal.App.3d 458, which Steward cites in support of her claim that Guseman's
conduct was a mere incidental deviation from his commute. In Lazar,
the court held that the doctrine of respondeat superior applied where an
accident occurred while the employee was driving his employer's truck on a
personal errand on his way home from work.
The uncontroverted evidence demonstrated that the employer derived a
special benefit from the project supervisor's commute so that the employee's
driving fell within the scope of his employment. (Id.
at p. 463.) According to the
personal errand—a trip to the store on his commute home from work—was "foreseeable"
and therefore, was a minor deviation from the scope of his employment. (Id.
at pp. 464-466.) The
decision to stop at a party, or a bar, or to begin a vacation, might not have
been foreseeable, we can think of no conduct more predictable than an
employee's stopping at a store to purchase a few items on the way home. Where, as here, the trip home is made for the
benefit of the employer, in the employer's vehicle, accidents occurring during
such minor and foreseeable deviations become part of the 'inevitable toll of a
lawful enterprise.' " (
While an
employee's personal errand to stop at a store on the way home from an
employment-related commute may be deemed an incidental deviation from the
employee's commute, and thus, one that an employer could reasonably expect an
employee to undertake, the personal errand in this case, in contrast, was a
planned two-hour social meal with a friend and that friend's husband. No employer, even one that could reasonably
be expected to consider an employee's commute to fall within that employee's
scope of work, could foresee that an employee might undertake such a
commute for a reason so unrelated to the employer's enterprise, such that the
accident that Guseman caused on his way to the breakfast meeting may fairly be
held to be "part of the 'inevitable toll of' " the employer's
"lawful enterprise." (
Guseman's planned breakfast meeting
was more akin to the employee's trip to visit his parent's home after running a
special errand for his employer, as described in Felix, supra, 192
Cal.App.3d at page 933. The employee in
to the post office by his employer at the end of his workday, just prior to the
accident. The employee's journey from
his place of work to the post office, and then from the post office to his
home, would normally have been considered to have been within the scope of his
employment. (Ibid.) However, instead of
heading straight home after doing his business at the post office, the employee
started driving from the post office toward his parents' home. The question faced by the
judgment in favor of the employer was "whether [the employee's] clear and
undisputed intent to go directly to his parents' home in Atwater from the post
office constituted a complete abandonment of his employer's
business." (Ibid.) The
constituted a complete abandonment of the employer's business, such that the
employer could not be held liable for the injuries caused by its employee on
his way to his parents' home. (
The court concluded, "[O]nce he has delivered the mail and leaves
the post office intending to drive directly to his parents' home, he has
completed his employer's business and is pursuing a purely personal
objective. On the facts of this case, we
hold that prior to the accident in which plaintiff, John Felix, was injured,
[the employee] had completed his special errand for H&H Appliances, had
completely abandoned his employer's business, was pursuing a purely personal
objective, and was not in the scope of his employment at the time of the
accident." (Ibid.)
Similarly,
even if Guseman's commute to work were considered to be within the scope of his
employment, when Guseman made a detour from his normal commute in order to meet
a friend and former colleague for breakfast, Guseman was pursuing a purely
personal objective. Guseman wanted to
"catch up" with Golich and her husband, and did not intend to conduct
any business. The breakfast meeting
cannot reasonably be deemed a simple incidental act in which Guseman was going
to engage on his way to work. Rather, it
was a planned two-hour meal during which Guseman intended to socialize and
gossip, prior to starting his work day.
Although Guseman was undoubtedly given a great deal of freedom in
performing his duties as a dean, such freedom should not be so broadly construed
as to turn a lengthy personal errand into an "incidental act" for
which his employer must bear liability.
Under the facts of this case, we
conclude that Guseman was not acting within the scope of his employment at the
time of the accident, as a matter of law.
Even if the "required vehicle exception" applied such that
Guseman's usual commute was within the scope of his employment, he
substantially departed from his commute and completely abandoned his employer's
business in going to attend a breakfast meeting with a friend and former
colleague, such that his employer may not be held vicariously liable under the
doctrine of respondeat superior for damages resulting from the accident that
Guseman caused on his way to that breakfast meeting.
IV.
DISPOSITION
The
judgment is affirmed. Costs are awarded
to CSU.
AARON, J.
I CONCUR:
McINTYRE, Acting P. J.
IRION, J., Dissenting.
Because I
believe that a jury question exists as to whether the required vehicle
exception to the going-and-coming rule applies in this case, I respectfully
disagree with my colleagues' decision to affirm the judgment.
As the
majority explains, Steward presents two separate arguments for reversal of the
summary judgment. Specifically, she
argues that (1) a jury could have found that Guseman's breakfast meeting
with Golich had a work purpose, and thus fell within the scope of Guseman's
employment and gave rise to respondeat superior liability because of the topics
to be discussed and the nature of Guseman's job; and, (2) in the
alternative, a jury could have found that Guseman's drive to the breakfast
meeting was part of Guseman's commute to work in vehicle required for him to
perform his work duties, and thus fell within the scope of his employment.
I am in
complete agreement with my colleagues' analysis of the first issue. Under the undisputed evidence in the record,
a reasonable jury could not find that Guseman was acting within the scope of
his employment by meeting a friend and former coworker for breakfast, even when
he expected that some of their discussion would cover issues related to the
university that interested them both.
Any other conclusion would be unfair to Guseman's employer and create an
unwarranted expansion of the respondeat superior doctrine.
However, as
I will explain, based on the specific facts of this case, I do not agree with
my colleagues' resolution of the second issue, involving the required vehicle
exception to the going-and-coming rule.
"[U]nder
the 'going and coming' rule, employers are generally exempt from liability for
tortious acts committed by employees while on their way to and from work
because employees are said to be outside of the course and scope of employment
during their daily commute. . . . [¶] 'A
well-known exception to the going-and-coming rule arises where the use of
the car gives some incidental benefit to the employer. . . . This exception to the going and coming rule
. . . has been referred to as the 'required-vehicle'
exception. . . . The
exception can apply if the use of a personally owned vehicle is either an
express or implied condition of employment . . . , or if
the employee has agreed, expressly or implicitly, to make the vehicle available
as an accommodation to the employer and the employer has 'reasonably come to
rely upon its use and [to] expect the employee to make the vehicle available on
a regular basis while still not requiring it as a condition of employment.' " (Lobo
v. Tamco (2010) 182 Cal.App.4th 297, 301, citations omitted (
"[W]hen a business enterprise requires an employee to drive to and
from its office in order to have his vehicle available for company business
during the day, accidents on the way to or from the office are statistically
certain to occur eventually, and, the business enterprise having required the
driving to and from work, the risk of such accidents are risks incident to the
business enterprise." (
(1972) 22 Cal.App.3d 803, 810.)
In my view,
the evidence in the record is sufficient to support a jury finding that Guseman
normally drove to work in a required vehicle.
Specifically, the record contains evidence that an important part of
Guseman's job responsibilities involved interacting with community members and
that he drove his car to numerous off-campus meetings and events every month,
averaging 500 miles per month of job-related driving, for which he was
reimbursed by his employer. Based on
those facts, a reasonable jury could find that "the employer ha[d]
'reasonably come to rely upon' "
the use of Guseman's personal vehicle and to " 'expect [Guseman] to make the vehicle available
on a regular basis.' " (Lobo,
supra, 182 Cal.App.4th at
p. 301.)
When an
employee is involved in an accident while driving a required vehicle, the employee's
actions "may yet be found outside the scope of his employment if at the
time of the accident he has completely abandoned his employer's business for
personal reasons. [Citations.] To constitute an abandonment, however, the
deviation or departure from the employer's business to pursue a personal errand
must be substantial and complete.
[Citation.] A mere deviation for
personal reasons will be insufficient.
Where the employee may be deemed to be pursuing a business errand and a
personal objective simultaneously, he will still be acting within the scope of
his employment." (
932 (Felix).)
For the
purposes of assessing respondeat superior liability, the factual issue to be
determined when an employee interrupts a commute in a required vehicle to
attend to personal business is whether the employee's "personal errand was
a foreseeable deviation from the scope of his employment, or whether evidence
or inferences therefrom have been presented which would lead a jury to believe
that this errand was an unforeseeable, substantial departure from his
duties." (Lazar v. Thermal Equipment Corp. (1983) 148 Cal.App.3d 458, 465 (
A finding on whether the employee has substantially departed from his
duties in an unforeseeable manner involves consideration of several
factors. "Such factors may include
the intent of the employee, the nature, time and place of the employee's
conduct, the work the employee was hired to do, the incidental acts the
employer should reasonably have expected the employee to do, the amount of
freedom allowed the employee in performing his duties, and the amount of time
consumed in the personal activity."
(Felix, supra, 192 Cal.App.3d at pp. 932-933.)
Under this
standard, courts have concluded that even when an employee interrupts his
commute or course of travel to attend to personal business — such as
stopping at a store or stopping for a meal — such departures could be
found to be foreseeable deviations, with any torts involving the vehicle
falling within the scope of employment.
(Lazar, supra, 148 Cal.App.3d at p. 466 ["While a decision to
stop at a party, or a bar, or to begin a vacation, might not have been
foreseeable, we can think of no conduct more predictable than an employee's stopping
at a store to purchase a few items on the way home."];
430, 432, 442-443) [issue for the jury whether an employee was driving his
vehicle within the scope of employment when heading towards work after making a
stop at his parents' house to pick up tools and then making another stop for a
meal]; Gipson v. Davis Realty Co.
(1963) 215 Cal.App.2d 190, 212 [evidence supported a finding that employee was
driving his vehicle within the scope of his employment when traveling to his
home to eat lunch]; State Farm Mut. Auto.
Ins. Co. v. Haight (1988) 205 Cal.App.3d 223, 228 [employee in company
vehicle on way home after stopping for groceries was acting in a foreseeable
manner within the scope of his employment].)
Taking into
account all of the factors set forth in Felix,
supra, 192 Cal.App.3d 926, 932-933, a
reasonable juror could find that Guseman's detour for the breakfast
meeting — even though made for purely personal reasons — was a
foreseeable deviation during his daily commute in a required vehicle. Among other significant facts, the meeting
was in the morning during commuting hours, the restaurant where Guseman planned
to meet Golich was between Guseman's home and the university, Guseman intended
to continue his commute to the university directly after stopping for
breakfast, and Guseman did not have any set hours when he was required to be
working. Under the circumstances,
Guseman's employer might reasonably foresee that Guseman would stop for
breakfast on the way to work while transporting the required vehicle between
his home and the university.
The facts
of this case fall squarely within the confines of well-established case law,
cited above, holding that the required vehicle exception may be applied when an
employee combines his personal errands with his commute in a required vehicle
by stopping for a meal or to buy something at a store. I dissent because, in my view, the
applicability of the required vehicle exception in the instant case is a
factual question that should have been submitted to jury, not decided as a
matter of law.
IRION, J.
name="_ftn1" title="">[1] Guseman's driver's license was suspended in May 2010 as
result of the accident. The suspension
lasted for one year. During this time,
Guseman was not permitted to operate a vehicle for any purpose. Guseman continued to fulfill his duties as
dean of the College of Business Administration at CSUSM while his license was
suspended.
name="_ftn2" title="">[2] Although the original plan apparently was that Guseman,
Baldwin and Golich would meet for breakfast, it later became clear that Baldwin
would not be joining Guseman and Golich, and Golich indicated that she would
bring her husband along to the breakfast meeting.
