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Rogers v. Criterion Catalyst Co., LLP

California Court of Appeals, First District, Second Division
Sep 18, 2009
No. A121886 (Cal. Ct. App. Sep. 18, 2009)

Opinion


BILLY ROGERS, Plaintiff and Appellant, v. CRITERION CATALYST COMPANY, LLP, Defendant and Respondent. A121886 California Court of Appeal, First District, Second Division September 18, 2009

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

Contra Costa County Super. Ct. No. C06-01968.

Lambden, J.

In the afternoon of August 15, 2006, Michael Glowner was driving to his job with Criterion Catalyst Company LLP (Criterion) when his vehicle collided with a motorcycle driven by Billy Rogers. On his way to work, Glowner intended to pick up a meal from a restaurant where Criterion had an account. Criterion was contractually obligated to provide Glowner with a meal that day because Glowner was going to attend a TAC (training and communication) meeting on his employer’s premises prior to working his regular 12-hour shift.

Rogers sued Glowner for the injuries he suffered from the accident. Subsequently, Rogers amended his complaint to add Criterion as a defendant under the doctrine of respondeat superior. Criterion filed a motion for summary judgment against Rogers’s complaint. The trial court granted summary judgment, finding that Criterion was not liable for the accident involving Glowner under the doctrine of respondeat superior because an employer is not liable for an employee’s torts committed while the employee is commuting to and from work (going and coming rule) and an exception to this rule did not apply. Rogers appeals and argues that a triable issue of fact exists as to whether Glowner’s commute falls under the special errand exception to the going and coming rule. We uphold the lower court’s ruling.

BACKGROUND

On August 15, 2006, Billy Rogers suffered severe injuries when the motorcycle he was driving collided with a truck driven by Glowner in an unincorporated part of Contra Costa County. On September 15, 2006, Rogers filed a complaint against Glowner for damages for the personal injuries he suffered as a result of the accident. Almost one year later, in April 2007, Glowner filed an amendment to the complaint to name Criterion as a defendant.

Rogers actually named Shell Chemical, LP as the defendant. Criterion, the correct party name, answered the complaint on June 11, 2007.

Criterion filed a motion for summary judgment on November 13, 2007. Criterion argued that the going and coming rule barred any claim of liability under respondeat superior against it for Glowner’s negligence. Rogers opposed the motion and asserted that the facts presented at least an inference that an exception to the going and coming rule applied.

Much of the evidence presented by the parties was not in dispute. The facts presented by the parties established that, at the time of the accident, Glowner was driving his own truck and was commuting from his home to work in Contra Costa County. On his way to work, he planned to stop at Martini’s Liquors & Deli (Martini’s Deli) to pick up his meal to be eaten later that evening at a time of his choosing. Criterion maintained an account at Martini’s Deli to pay for overtime meals for its employees.

The accident involving Rogers and Glowner occurred about four blocks from Glowner’s home while Glowner was making a left turn from Palm Avenue onto Pacheco Avenue. Glowner testified that he had traveled that route “hundreds if not thousands of times” before. Martini’s Deli is located on Pacheco Boulevard, about 50 yards west of the intersection of Palm Avenue and Pacheco Boulevard.

Glowner worked as an operator in Criterion’s plant, and his job description did not include any duty to pick up a meal. Marjorie Leeds, the plant manager at Criterion, stated that Glowner’s tasks included taking readings and adjusting gauges at the plant, moving materials so that they fed into the plant, adjusting temperatures and measures, mixing chemicals, making catalysts, and doing some lab analysis.

It was undisputed that Glowner was not paid for any of the time he spent on his trip from home to work on August 15, 2006; he also was not reimbursed for any expenses incurred in connection with his drive to work that day. Glowner testified that he was not doing anything that was work-related at the time of the accident. Leeds stated that Glowner never worked from his home and his duties did not include driving.

On the day of the accident, Glowner was going to attend a TAC session at 3:00 p.m. The TAC meetings were held in a building on the employer’s premises, but not in the plant where Glowner regularly worked. TAC meetings were held pursuant to the “Supplemental Agreement between Shell Chemical Company––Martinez Chemical Plant and 12-Hour Shift Employees Oil, Chemical and Atomic Workers International Union” (supplemental agreement). Following the TAC session, Glowner was going to perform his regular 12-hour work shift, which began at 6:00 p.m. Leeds acknowledged that Criterion was contractually obligated to provide Glowner with a meal because the TAC meeting preceded a 12-hour shift.

Leeds stated that the employees were compensated for their time at the TAC session and characterized attendance at the meetings as “normal work.” She asserted that the training at the meetings was part of their jobs. The TAC meetings were designed to, among other things, give the employees knowledge to help them perform their jobs safer and better. Glowner’s entire team was scheduled to attend the TAC meeting on the day of the accident.

Although Criterion was contractually obligated to provide a meal when an employee worked overtime, Criterion did not have a cafeteria on the plant premises where Glowner worked. Criterion, however, maintained accounts with four restaurants, including Martini’s Deli. Martini’s Deli did not deliver meals but two of the other restaurants delivered to the plant. Leeds declared that no supervisor sent Glowner to buy his meal at the restaurant on the night of the accident. Rogers presented evidence that, if Glowner had gone to the plant, checked in, and then left to pick up his meal at Martini’s, he would have been compensated for the time it took to drive to the restaurant.

The trial court held a hearing on Criterion’s summary judgment motion on March 13, 2008. On April 14, 2008, the court filed its order granting Criterion’s motion for summary judgment.

Rogers filed a timely notice of appeal.

DISCUSSION

Rogers sued Criterion for damages resulting from the motor vehicle accident under the theory that the doctrine of respondeat superior made Criterion liable for Glowner’s negligence in causing the vehicle accident. Thus, the sole question before the trial court was whether Glowner’s trip to work on August 15, 2006, which included the picking up of his meal that Criterion was contractually obligated to provide, was within the scope of Glowner’s employment. The trial court concluded that it was not and, for the reasons set forth below, we agree.

I. Respondeat Superior Doctrine

Under the doctrine of respondeat superior, an employer may be held vicariously liable for torts committed by an employee within the scope of employment. (Felix v. Asai (1987) 192 Cal.App.3d 926, 931.) The doctrine is justified as “ ‘... 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....’ ” (Hinman v. Westinghouse Elec. Co. (1970) 2 Cal.3d 956, 959-960 (Hinman).)

In deciding whether to hold an employer vicariously liable, the inquiry should be whether the risk may fairly be regarded as typical of, or broadly incidental to, the employer’s business. (Perez v. Van Groningen & Sons, Inc. (1986) 41 Cal.3d 962, 968 (Perez).) The risk arising out of the employment should not be 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.)

Generally, an employer is not responsible for torts committed by an employee who is going to or coming from work, which is referred to as the going and coming rule. “The reason for this ‘going and coming’ rule is 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].’ [Citations.]” (Tryer v. Ojai Valley School (1992) 9 Cal.App.4th 1476, 1481.) “[E]xceptions will be made to the ‘going and coming’ rule where the trip involves an incidental benefit to the employer, not common to commute trips by ordinary members of the work force.” (Hinman, supra, 2 Cal.3d at p. 962.) However, “although an exception to the going-and-coming rule will be made when the trip involves an incidental benefit to the employer, the benefit must be sufficient enough to justify making the employer responsible for the risks inherent in the travel.” (Blackman v. Great American First Savings Bank (1991) 233 Cal.App.3d 598, 604 (Blackman).) At trial, the plaintiff has the burden of proving that an exception to the going and coming rule applies. (See, e.g., Bailey v. Filco, Inc. (1996) 48 Cal.App.4th 1552, 1558.)

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. (Felix v. Asai, supra, 192 Cal.App.3d at p. 931.) Courts have also created an exception for 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.)

“Thus, it is necessary to determine the main purpose of the injury-producing activity: If it was the pursuit of the employee’s personal ends, the employer is not liable. [Citation.]” (Le Elder v. Rice (1994) 21 Cal.App.4th 1604, 1607.) The determination as to whether an employee acted within the scope of employment ordinarily presents a question of fact; but it becomes a question of law when the facts are undisputed and no conflicting inferences are possible. (Lisa M. v. Henry Mayo Newhall Memorial Hospital (1995) 12 Cal.4th 291, 299.)

II. Workers’ Compensation Cases and the Law on Respondeat Superior

In arguing that the lower court erred in granting summary judgment in Criterion’s favor, Rogers primarily relies on workers’ compensation cases. Rogers points to a footnote in Hinman, supra, 2 Cal.3d 956, stating that both workers’ compensation law and respondeat superior “are concerned with the allocation of the cost of industrial injury; and the two tests are closely related [citation].” (Id. at p. 962, fn. 3.) The two areas of law have similar concerns, but the Supreme Court in Hinman pointed out that the test under workers’ compensation law is different from the one under respondeat superior doctrine. (Ibid.)

Not only are the tests for workers’ compensation and respondeat superior not identical, they have different policy considerations. “Although the California courts often cite tort and workmen’s compensation cases interchangeably, the latter are not controlling with respect to exceptions to the ‘going-and-coming’ rule when liability is predicated upon respondeat superior principles.” (Caldwell v. A.R.B., Inc. (1986) 176 Cal.App.3d 1028, 1035 (Caldwell).) The “scope of employment” requirement of the respondeat superior doctrine is not identical to the “ ‘ “arising out of and in the course of employment” ’ ” test of workers’ compensation law. (Perez, supra, 41 Cal.3d at p. 967, fn. 2.)

Whether an employer is liable under respondeat superior is not truly a legal question, but one of public policy. (Caldwell, supra, 176 Cal.App.3d at p. 1042.) “Workers’ compensation and respondeat superior law are driven in opposite directions based on differing policy considerations. Workers’ compensation has been defined as a type of social insurance designed to protect employees from occupational hazards, while respondeat superior imputes liability to an employer based on an employee’s fault because of the special relationship. [Citation.] Further, courts heed statutory admonitions for a liberal construction favoring coverage in workers’ compensation cases which are not present in respondeat superior law.” (Blackman, supra, 233 Cal.App.3d at p. 605; accord, Munyon v. Ole’s Inc. (1982) 136 Cal.App.3d 697, 702 [Workers’ Compensation Act is a shield protecting injured workers; vicarious tort liability is a sword extending tort liability beyond those directly and immediately negligent]; Anderson v. Pacific Gas & Electric Co. (1993) 14 Cal.App.4th 254, 259-260.)

Thus, workers’ compensation cases represent a more liberal allocation of liability to an employer for commute injuries and are not controlling in respondeat superior cases. They are, however, instructive to the extent they are based on the principle of identifying an extraordinary employee benefit from the commute of a particular employee. (See Hinman, supra, 2 Cal.3d at p. 962, fn. 3; Anderson v. Pacific Gas & Electric Co., supra, 14 Cal.App.4th at pp. 259-260; Blackman, supra, 233 Cal.App.3d at p. 605.)

III. Standard of Review

We review an order granting summary judgment de novo. (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 860 (Aguilar).) We independently review the record and apply the same rules and standards as the trial court. (Zavala v. Arce (1997) 58 Cal.App.4th 915, 925.) The trial court must grant the motion if “all the papers submitted show that there is no triable issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” (Code Civ. Proc., § 437c, subd. (c).)

A defendant moving for summary judgment has the initial burden of showing that a cause of action lacks merit because one or more elements of the cause of action cannot be established or there is an affirmative defense to that cause of action. (Code Civ. Proc., § 437c, subd. (o); Aguilar, supra, 25 Cal.4th at p. 850.) If the defendant fails to make this initial showing, it is unnecessary to examine the plaintiff’s opposing evidence, and the motion must be denied. However, if the moving papers make a prima facie showing that justifies a judgment in the defendant’s favor, the burden shifts to the plaintiff to make a prima facie showing of the existence of a triable issue of material fact. (Code Civ. Proc., § 437c, subd. (p)(2); Aguilar, supra, at p. 849.)

In determining whether the parties have met their respective burdens, the court must “consider all of the evidence” and “all of the inferences reasonably drawn therefrom,” and “must view such evidence [citation] and such inferences [citations]... in the light most favorable to the opposing party.” (Aguilar, supra, 25 Cal.4th. at pp. 844-845.) “There is a triable issue of material fact if, and only if, the evidence would allow a reasonable trier of fact to find the underlying fact in favor of the party opposing the motion in accordance with the applicable standard of proof.” (Id. at p. 850, fn. omitted.) Consequently, a defendant moving for summary judgment must “present evidence that would require... a trier of fact not to find any underlying material fact more likely than not.” (Id. at p. 845.)

In the present case, the parties do not agree on each party’s burden of proof. Rogers contends that Criterion has the burden of establishing that respondeat superior does not apply and that no exception exists. Criterion argues that an exception is not an affirmative defense and Rogers has the burden of proving that the going and coming rule is inapplicable.

It is axiomatic under the summary judgment law that Criterion has the burden of negating every theory of liability (see, e.g., Ramona Convent of the Holy Names v. City of Alhambra (1993) 21 Cal.App.4th 10, 19) and establishing that a defense exists as a matter of law. Here, Rogers’s theory is that Criterion is liable for Glowner’s negligence under the doctrine of respondeat superior. As already noted, the question whether this doctrine applies is a question of fact. (See, e.g., Lisa M. v. Henry Mayo Newhall Memorial Hospital, supra, 12 Cal.4th at p. 299.) Thus, Criterion has the initial burden of furnishing prima facie evidence of no liability under this theory.

In the present case, Criterion satisfied its burden by presenting evidence to support the going and coming rule and evidence that the special errand exception does not apply. It therefore became Rogers’s burden to present evidence sufficient to create a triable issue of fact that Criterion is liable under the respondeat superior doctrine. (See Aguilar, supra, 25 Cal.4th at pp. 849-850.) Rogers could meet this burden by presenting some credible evidence that Glowner was not commuting to work when the accident occurred so that the going and coming rule was inapplicable or he could present facts sufficient to provide a reasonable inference that an exception to the going and coming rule applies.

For purposes of summary judgment, Rogers only needs to provide sufficient credible evidence to raise a triable issue of fact that Criterion is liable under the doctrine of respondeat superior. At trial, Rogers has the burden of proving that Glowner was acting within the course and scope of his work (Harris v. Trojan Fireworks Co. (1984) 155 Cal.App.3d 830, 835) and that an exception to the going and coming rule applies (Bailey v. Filco, Inc., supra, 48 Cal.App.4th at p. 1558).

One additional consideration is that the trial court overruled all of Criterion’s objections to evidence submitted by Rogers. On appeal, Criterion does assert that some of Rogers’s evidence is inadmissible, but it fails to present any legal argument challenging the lower court’s rulings. Although our review of a summary judgment motion is de novo, we review the trial court’s final rulings on evidentiary objections by applying an abuse of discretion standard. (Carnes v. Superior Court (2005) 126 Cal.App.4th 688, 694.) Since Criterion failed to present any legal argument objecting to the lower court’s evidentiary rulings, it has waived any challenge on this basis.

IV. Respondeat Superior Doctrine and the Facts of This Case

In the present case, as already stressed, Rogers did not allege that Criterion was liable to him for any negligence it directly committed, but asserted that Criterion was negligent for Glowner’s negligence under the doctrine of respondeat superior. As already noted, an employer is not generally liable for torts committed by an employee commuting to work. (See, e.g., Felix v. Asai, supra, 192 Cal.App.3d at p. 931.) Here, the undisputed evidence established that Glowner was driving to work in his own truck at the time of the accident involving Rogers and that he was not compensated for the time he spent on this trip to work. It was also undisputed that Glowner was not reimbursed for any expenses incurred in connection with his drive to work on August 15, 2006. Further, the evidence established that no supervisor ordered Glowner to pick up his meal at Martini’s Restaurant. Glowner’s uncontradicted testimony was that he was not doing anything that was work-related at the time of the accident. Moreover, the evidence was that Glowner’s job duties did not require him to use his car to do his job and that he performed all of his work on Criterion’s premises.

Although the parties do not dispute the above mentioned facts that establish Glowner was commuting to work, the parties disagree about whether an exception to the going and coming rule exists. Rogers maintains that the facts support an inference that the special errand exception applies. Specifically, he maintains that Glowner’s drive to work to attend the TAC meeting was a special errand and his picking up his meal at Martini’s on the way to work was also a special errand.

In a respondeat superior case, “[i]f the employee is not simply on his way from his home to his normal place of work or returning from said place to his home for his own purpose, but is coming from his home or returning to it on a special errand either as part of his regular duties or at a specific order or request of his employer, the employee 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.” (Boynton v. McKales (1956) 139 Cal.App.2d 777, 789.) In addition, the special errand exception may apply if the trip involves an incidental benefit to the employer sufficient enough to justify making the employer responsible for the trip. (See, e.g., Hinman, supra, 2 Cal.3d at p. 962; Blackman, supra, 233 Cal.App.3d at p. 604.)

Thus, we consider whether Criterion established as a matter of law that Glowner’s commute to pick up his meal at a restaurant and to attend the TAC meeting on August 15, 2006, did not satisfy the special errand exception to the going and coming rule.

A. Driving to Attend the TAC Meeting

In support of its motion for summary judgment, Criterion presented evidence that the TAC meetings were not special events because they were regularly scheduled for the first Tuesday of the month. Leeds characterized attendance at the meetings as “normal work” and every other member of Glowner’s department was also required to attend the TAC meetings. Attendance was not at a special request by Criterion, but was required pursuant to the supplemental contract between Glowner’s union and Criterion. Criterion also presented evidence that the TAC meetings were held on the premises of Criterion and not at some off-site location.

The TAC meetings were in an administrative office rather than at the plant, but it is undisputed that the meetings were not at an off-site location.

Additionally, Criterion presented evidence that the TAC meeting was not an incidental benefit to it sufficient enough to justify making it responsible for the trip. (See, e.g., Hinman, supra, 2 Cal.3d at p. 962.) Glowner testified that the TAC meetings were to benefit “us.” When asked what he meant by “us,” he responded, “employees.” When asked whether Criterion received any benefit, Glowner answered: “Well, they get the knowledge that they’ve taught you something. They get the knowledge that––or hopefully wishful that you’ll work safer, you’ll work more knowledgeable in what you’re doing.”

In response, Rogers maintains that the TAC sessions were separate and not a normal part of Glowner’s job duties. The TAC meetings were held outside of the regular work shift and in a building separate from the operations unit. He points out that the TAC meeting only occurred about six or seven times a year while the regular safety meetings occurred once every week. He contrasts the TAC sessions with the regular on-site safety meetings that were held on a routine basis at the beginning of a normal work shift. Further, Rogers declares that Glowner’s attendance at the TAC meeting benefited Criterion. Rogers claims that Glowner’s drive to Martini’s Deli to pick up his meal benefited Criterion as it helped Glowner be able to attend the meeting and then perform his regular job shift.

When arguing that the foregoing facts fall under the special errand exception, Rogers relies on workers’ compensation cases (e.g., Schreifer v. Industrial Acc. Com. (1964) 61 Cal.2d 289 (Schreifer).) These cases, as already discussed, are not binding. Although these cases may be relevant, our review of them establishes that they do not benefit Rogers.

Rogers first emphasizes the undisputed evidence that the TAC meetings occurred prior to Glowner’s 12-hour shift. However, if the employee is simply called in to work different hours than usual or is called in to perform tasks that are not extraordinary in comparison with his or her usual duties, the special errand exception does not apply. (Caldwell, supra, 176 Cal.App.3d at p. 1039.) “ ‘The employee’s conduct is “special” if it is “extraordinary in relation to routine duties, not outside the scope of employment.” [Citation.] The special mission rule “is ordinarily held inapplicable when the only special component is the fact that the employee began work earlier or quit work later than usual.” [Citation.]’ ” (Id. at pp. 1038-1039, italics omitted.) Here, Rogers provides no evidence that Glowner performed some extraordinary duty at the meeting.

Rogers points to Schreifer, supra, 61 Cal.2d 289 and the cases cited in this opinion to support his argument that performance of regular job duties requested outside the employee’s normal shift can constitute a special errand. In Schreifer, the court held that the special errand exception applied to the deputy sheriff’s drive to work because he was coming earlier than previously scheduled and in response to a telephonic order from a superior to come to work immediately. (Id. at pp. 294-295.) The court concluded that the “telephonic order from his superior to report early was not the usual manner of scheduling duty hours [and therefore there] must have been some special need for [the deputy sheriff’s] services.” (Id. at p. 294.)

The Supreme Court in Schreifer made it clear that it was the trip into work earlier than the time assigned on the previous day that brought the injury within the special mission exception. (Schreifer, supra, 61 Cal.2d at p. 294.) Here, Glowner did not present any evidence that he received any unusual or last minute notice of the meeting. Rather, it is undisputed that Glowner was planning to attend the TAC session. As already emphasized, the TAC meeting was regularly scheduled for the first Tuesday of the month pursuant to the supplemental agreement between Glowner’s union and the employer.

Rogers also stresses the fact that the TAC meetings occurred only six or seven times a year as supporting an inference that the special errand exception applies. The question, however, is not how often the meetings occurred, but whether attendance at the meeting involved an extraordinary duty outside the scope of employment. Here, the evidence was that Glowner had to attend a mandatory TAC meeting that was scheduled pursuant to a supplemental contract for the first Tuesday of each month. Simply because Criterion cancelled the TAC meeting when it was not needed so that it actually occurred only six or seven times a year did not make these meetings extraordinary.

“[T]here was nothing special about [Glowner’s] trip to and from [his place of employment]; it was simply a normal commute no different in kind than the normal commute to perform the regular duties of his employment....” (See C.L. Pharris Sand & Gravel, Inc. v. WorkersComp. Appeals Bd. (1982) 138 Cal.App.3d 584, 593.) Glowner’s attendance at the TAC meeting “did not provide a special benefit to [Criterion] different than his commute to [the plant] to report for [work].” (See City of San Diego v. Workers’ Comp. Appeals Bd. (2001) 89 Cal.App.4th 1385, 1389.)

An additional factor stressed by Rogers is his claim that Glowner’s attendance at the TAC meeting benefited Criterion. The evidence was that the TAC meetings primarily benefited the employees. Although it can be presumed that Criterion derived some benefit from its employees’ attending the meeting, there is no evidence that their attendance at the TAC meeting provided Criterion with a special benefit. An employer will always benefit in some respect from an employee’s attendance at a meeting, otherwise there would be no reason to have the meeting or to pay the employee for attending the meeting. Rogers pointed to no special or extraordinary benefit that Criterion received as a result of Glowner’s attendance at the TAC meeting.

Finally, Rogers argues that the trial court seemed to accept Criterion’s argument that the drive had to be for a one-time event to be within the special errand exception to the going and coming rule. He asserts that this is erroneous and cites McGinty v. Workmen’s Comp. App. Bd. (1968) 266 Cal.App.2d 280, 281-283 (court held that the employer should compensate the employee for the injury he suffered while driving home after attending a required monthly evening sales meeting that began at the employer’s plant and continued at a restaurant). The trial court, however, did not base its decision on the fact that the TAC meetings occurred more than once. Rather, the court pointed out that the TAC meeting was not a special meeting because it was conducted at Glowner’s regular workplace, rather than an off-site location. Moreover, the court stressed that TAC meetings were required since 1998 and Glowner “had long been aware that attending TAC meetings was a requirement of his job.” The court also noted that Glowner was not reporting to work at a special time, and explained: “While Mr. Glowner did not ordinarily report to work at 3:00 p.m., his job required him to report at 3:00 p.m. the first Tuesday of each month, unless the meeting was cancelled.” The court concluded: “[Rogers] does not cite to any authority that suggests that extra hours that are regularly scheduled and are a required part of the job fall into the special errands category. Nor has [Rogers] cited any authority that employee safety meetings are so extraordinary in their nature that attendance at a regularly-scheduled safety meeting should be considered a special errand.”

Thus, other than reporting to work at 3:00 p.m., rather than at 6:00 p.m., deciding to pick up his own meal prior to coming to the meeting, and attending the meeting at a different building at the Criterion plant, there was nothing special about Glowner’s commute to work on the day of the accident. Of significance, was the undisputed evidence that the meetings were regularly scheduled, were considered part of Glowner’s regular job duties, were to be attended as a result of a supplemental agreement between Glowner’s union and the employer, and were held to benefit the employees as well as Criterion. Accordingly, we conclude that the lower court correctly found that as a matter of law the drive to attend the TAC meeting did not satisfy the special errand exception to the going and coming rule.

B. Driving to Pick up a Meal at Martini’s Deli

Rogers argues that Glowner’s commute that included his picking up a meal at Martini’s Deli falls under the special errand exception. He maintains that Criterion benefited and encouraged him to pick up his meal and that Glowner’s picking up his meal required him to turn left on Pacheco Boulevard, which created a special risk.

In arguing that the drive to pick up the meal satisfies the special errand exception, Rogers cites workers’ compensation cases that have held such trips may fall under the “meal exception” or “special risks” exception to the going and coming rule. We are not aware of the application of either of these exceptions to a respondeat superior case. With regard to the special risk exception, one court has commented: “[T]he ‘special risk’ exception to the going-and-coming rule is a creation of the workers’ compensation system. As far as we can tell, it has not been applied outside that context, i.e., to third party claims against an employer based on respondeat superior. (See [Caldwell, supra, ] 176 Cal.App.3d [at pp.] 1035-1036... [assuming, without deciding, that ‘special risk’ exception applies to third party claims against employer]; Flahavan et al., Cal. Practice Guide: Personal Injury (The Rutter Group 1997) ¶ 2:319, p. 2-93, rev. 1, 1997 [‘the only known cases to apply this [“special risk”] theory to date have been in the workers’ compensation (not respondeat superior) context’ (italics in original) ].)” (Depew v. Crocodile Enterprises, Inc. (1998) 63 Cal.App.4th 480, 487.)

In his opening brief, Rogers states that Glowner was turning left into the parking lot of Martini’s Deli. However, the undisputed evidence in the record establishes that Glowner was making a left turn from Palm Avenue onto Pacheco Avenue when the accident occurred. Martini’s Deli is located on Pacheco Boulevard, about 50 yards west of the intersection of Palm Avenue and Pacheco Boulevard.

Under respondeat superior doctrine, the essential question is whether Glowner’s trip to get the meal encompassed a risk typical of or broadly incidental to Criterion’s business or Glowner’s duties. (See Bailey v. Filco, Inc., supra, 48 Cal.App.4th at pp. 1562 -1564.) In Bailey, the court held there was no liability under respondeat superior when the cashier at an appliance store left on a paid break to purchase cookies for herself and another employee and was involved in a car accident. (Id. at pp. 1557-1558.) The court emphasized that the employer never instructed the employee to buy cookies or to run any type of errand. (Id. at p. 1558, fn. 1.) The court concluded that the employee’s trip to purchase cookies on her morning break “did not encompass risks typical of or broadly incidental to [the employer’s] business or [the employee’s] duties.” (Id. at p. 1564.)

In the present case, the undisputed evidence established that Glowner had not been directed by the employer to pick up his meal at Martini’s Deli; nor was he paid for the time he spent driving from his home to the restaurant or to work. Further, as already emphasized, the undisputed evidence showed that Glowner’s work duties did not include picking up meals. Further, the evidence in the record was that Glowner did not have to pick up his meal since Criterion had an account with two restaurants that delivered meals to the plant.

Rogers claims that Criterion encouraged Glowner’s trip to Martini’s Deli because Criterion maintained an account there. Further, Rogers highlights that Glowner’s picking up his meal fulfilled Criterion’s obligation to provide Glowner with a meal. He further alleges that this action helped Glowner be able to attend the TAC meeting since he did not have to leave work to get a meal. To support this argument Rogers cites the workers’ compensation case of Dimmig v. Workmen’s Comp. Appeals Bd. (1978) 6 Cal.3d 860 (Dimmig).

In Dimmig, supra, 6 Cal.3d 860, the court held that a special errand exception applied to the employee’s commute home from night school class because the employee was attending the class at the employer’s encouragement. (Id. at pp. 864-866.) The employer had established a policy of encouraging its employees to attend college and, upon successful completion of a particular course, the employer would reimburse the entire cost of tuition and books for courses directly related to the employee’s job and 50 percent of such costs for courses not directly related to the job but required for the degree being sought. (Id. at p. 862.) The court concluded that the fact that the employee was being reimbursed by the employer 100 percent for the costs of the course indicated that the course directly related to the employee’s performance on the job. (Id. at p. 866.) The court contrasted this direct benefit to the employer from an “indirect benefit received by the employer who provides a vacation or health plan for his employees. Such benefits are not directly related to the employee’s actual job function, as is the case with the benefit involved here, but only serve to indirectly aid the employee’s ability to perform by keeping him healthy and, hopefully, happy.” (Ibid.) The court further noted that school attendance was extraordinary in that it was not a part of the employee’s routine duties. (Ibid.) Further, the travel to college was not to the same location as the job and was in the evening and therefore not at the regular time for work. (Id. at p. 869.) The court explained “that when the employee engages in a special activity which is within the course of his employment, and which is reasonably undertaken at the request or invitation of the employer, an injury suffered while traveling to and from the place of such activity is also within the course of employment and is compensable.” (Id. at p. 868.)

The facts of the present case do not resemble those in Dimmig, supra, 6 Cal.3d 860. First, Rogers presented no evidence that Glowner’s picking up his meal was within the course of his employment. As already noted, the undisputed evidence was that picking up his meal was not one of Glowner’s job duties. Second, the undisputed evidence was that no supervisor directed Glowner to pick up his meal. Rogers insists that Criterion’s keeping an account at Martini’s Deli was sufficient evidence to raise a triable issue of fact that it requested Glowner to pick up his meal. We disagree. Simply having an account at Martini’s Deli does not support an inference that Criterion encouraged Glowner to pick up his meal there. To support such an inference, Rogers would have had to present, at a minimum, some evidence that Criterion expressed a preference to Glowner that he pick up his meal from Martini’s Deli rather than receive his meal from one of the two restaurants that delivered to the plant.

Rogers stresses that Criterion would have been liable under respondeat superior if Glowner had come to work and then left to purchase his meal and the result should not be different simply because he picked up the meal on his way to work. In this latter situation, however, the employer authorizes and pays for the time of the trip. In the present situation, neither factor is present. Determining when to cut off liability may sometimes seem inequitable or arbitrary, but Rogers has presented no compelling policy for expanding liability to a situation where the employer neither authorizes nor compensates the employee for the trip to pick up the meal.

Rogers also attempts to buttress his assertion that Glowner’s trip to get his meal was a special errand by citing workers’ compensation cases that have recognized an exception to the going and coming rule where “an employee suffers injury from a special risk causally related to employment.” (See, e.g., General Ins. Co. v. Workers’ Comp. Appeals Bd. (1976) 16 Cal.3d 595, 600 (General Ins.); Johnson v. Stratlaw, Inc. (1990) 224 Cal.App.3d 1156, 1160-1164.) The “special risk” exception applies “(1) if ‘but for’ the employment the employee would not have been at the location where the injury occurred and (2) if ‘the risk is distinctive in nature or quantitatively greater than risks common to the public.’ ” (Parks v. Workers’ Comp. Appeals Bd. (1983) 33 Cal.3d 585, 590.) To be “subjected peculiarly” to a danger on a public road, an employee generally must be using that road to access his or her employer’s place of business. (See, e.g., Greydanus v. Industrial Acc. Com. (1965) 63 Cal.2d 490.)

Even if we consider the factors set forth in the workers’ compensation cases on special risk relevant, these cases are unavailing. With regard to the first prong of the special risk test, “ ‘but for’ the employment the employee would not have been at the location where the injury occurred[,]” the evidence established that Glowner was not entering or leaving the premises of his work. Further, even if the “special risk” exception is expanded to include an accident occurring more than one mile away from Glowner’s place of work, Rogers presented no evidence to establish any causal connection between his job and turning left from Palm Avenue onto Pacheco Boulevard. Rogers claims that Martini’s Deli was “the business at which the employer maintained an account[,] which was one of four that employees were required to use.” However, as already stressed, he presented no evidence that Criterion encouraged Glowner to go to that delicatessen before he came to work.

Further, as the trial court found, there was no evidence that, “but for” Glowner’s employment, Glowner would not have been at the location where the injury occurred. The accident occurred four blocks from Glowner’s house, at an intersection with a major thoroughfare. Thus, this evidence did not raise an inference that, but for, his job, Glowner would not have been turning left at the intersection of Palm Avenue and Pacheco Boulevard. (See Parks v. Workers’ Comp. Appeals Bd., supra, 33 Cal.3d at p. 590.)

Additionally, the record does not contain any evidence that Glowner’s drive to Martini’s Deli exposed him “to a greater risk from passing motorists than” was greater than risks to the common public (General Ins., supra, 16 Cal.3d at p. 601). Glowner was driving in the middle of the afternoon and was turning left from a public street onto another public street when the incident occurred. Glowner testified that he had traveled that route “hundreds if not thousands of times” before.

Finally, Rogers cites to the meal break exception cases in the workers’ compensation law (Duncan v. Workers’ Comp. Appeals Bd. (1983) 150 Cal.App.3d 117 (Duncan); McFadden v. Workers’ Comp. Appeals Bd. (1988) 203 Cal.App.3d 279 (McFadden)) and claims that these cases support the conclusion that he presented evidence of a triable issue of fact that picking up his meal falls under the special errand exception. Under workers’ compensation law, “the going and coming rule generally precludes compensability for off-premises injuries sustained during an uncompensated meal break. However, an employee’s injuries while traveling to or from a compensated meal break are compensable whether the employee is paid at an hourly rate, or is salaried.” (Wood Pontiac Cadillac v. Superior Court (1992) 5 Cal.App.4th 810, 812.) Thus, in Duncan, supra, 150 Cal.App.3d 117, the court concluded that a salaried employee is paid during an authorized but unscheduled lunch break and therefore the injury she sustained when she fell while walking to lunch off her employer’s premises was compensable. (Id. at p. 121.) Similarly, in McFadden, supra, 203 Cal.App.3d 279, the court concluded that a salaried salesman injured while returning to work from an off-premises lunch with other company employees where they discussed company business was entitled to workers’ compensation benefits. (Id. at p. 283.)

Here, the undisputed evidence was that Glowner was not compensated for any part of his commute and therefore the accident did not occur during a compensated meal break. Rogers protests that there is no rule that the compensation has to be payment of the employee’s time during the meal and suggests that compensation can simply be the fact that Criterion paid for the meal. Rogers cites no authority or policy reason to expand the meal break exception in this fashion and we therefore reject this argument.

In sum, the undisputed facts establish that the going and coming rule applies and that the special errand exception based on either Glowner’s attending the TAC meeting or picking up his meal on the way to work does not apply. Accordingly, the lower court did not err in granting Criterion’s motion for summary judgment.

DISPOSITION

The judgment is affirmed. Criterion is awarded the costs of appeal.

We concur: Kline, P.J., Haerle, J.

On appeal, Rogers clarifies that he is not arguing that the meal or special risks exception applies by itself. Rather, he is contending that the factors stressed in these workers’ compensation cases are apparent in the present case and that these additional factors considered with the other facts warrant imposing respondeat superior liability on Criterion.


Summaries of

Rogers v. Criterion Catalyst Co., LLP

California Court of Appeals, First District, Second Division
Sep 18, 2009
No. A121886 (Cal. Ct. App. Sep. 18, 2009)
Case details for

Rogers v. Criterion Catalyst Co., LLP

Case Details

Full title:BILLY ROGERS, Plaintiff and Appellant, v. CRITERION CATALYST COMPANY, LLP…

Court:California Court of Appeals, First District, Second Division

Date published: Sep 18, 2009

Citations

No. A121886 (Cal. Ct. App. Sep. 18, 2009)