Low, Ball & Lynch’s

WEEKLY LAW RESUME

September 15, 2005 Issue   By: Ray Coates

Torts – Employer Liability  – Course and Scope of Employment

Dean Hartline v. Kaiser Foundation Hospitals

Court of Appeal, Third Appellate District

(August 31,  2005)

The application of the doctrine of vicarious liability to injuries caused by an employee during the course and scope of his employment depends on the facts on each particular case.  In this case, the injured party argued the doctrine should be extended to include any injury that occurs on the employer’s premises. 

Ann Collins was employed by Kaiser Permanente Medical Group as a staff physical therapist.  While driving to work on the date of the accident, she turned into the driveway of the Kaiser parking lot and struck Dean Hartline as he was walking across the driveway.  Collins was not paid her transportation costs or her car insurance and the accident occurred before she started work.  Hartline sued Collins and Kaiser.  Kaiser moved for a summary judgment.  Hartline opposed the motion on the basis that the accident occurring on the employer’s premises and, therefore, should be considered within the course and scope of employment.  The trial court granted Kaiser’s motion.  Hartline appealed.

The Court of Appeal affirmed the judgment.  The burden on Hartline was to show that Collins was acting within the course and scope of her employment at the time of the accident.  In worker’s compensation proceedings, going and coming to and from work is normally considered outside the course and scope of employment. Hartline argued the rule did not apply.  He based his argument on a rule that has developed in worker’s compensation cases that states under the “going-and-coming” rule the employment relationship begins when the employee enters the employer’s premises.  This rule has been applied in such cases to hold the injury occurs in the course and scope of employment when the accident occurs in parking lots used by employees or on public property immediately adjacent to the workplace.   The Court noted that no published case had applied this rule outside of the worker’s compensation arena.

The Court of Appeal rejected this approach.  The Court noted that worker’s compensation tests for course and scope of employment are not identical to the tests applied in civil lawsuits.  Thus decisions in that arena are not controlling precedent.  In the civil arena, the definition of course and scope of employment is more restrictive than that of worker’s compensation.  This is based upon different policy considerations.  Worker’s compensation is social insurance designed to protect employees from occupational hazards.  The doctrine of respondeat superior imputes liability to the employer based upon the employee’s fault because of a special relationship.

The Court stated the “premises line” rule did not fit civil suits.  The justification for the rule of respondeat superior liability is an allocation of risk.  The employer accepts risks inherent in or created by the employment enterprise.  A risk is inherent in the enterprise when it is not unfair or startling to include the loss resulting from the employee’s activities in other costs of the employer’s business.  The question is whether it is typical of or broadly incidental to the enterprise undertaken by the employer.  The employer has liability for accidents which are characteristic of its activities. 

An employee’s commute, absent special circumstances, generally is not inherent in, typical of, or created by the work.  The fact that employees have to commute to work does not mean that a commute is part of the enterprise that the employer has agreed to assume as a risk.  The fact that the accident had happened on the premises of the employer did not change the character of that risk.  The Court stated that it would be an arbitrary expansion of employer liability to assign vicarious liability to the employer whenever an accident occurred on their premises or in public areas near their premises, without regard to whether the accident was typical of, or broadly incidental, to the employer’s enterprise.  The Court felt there was an insufficient nexis upon which to attach vicarious liability upon the employer.

The Court therefore held the trial court did not err in granting Kaiser’s motion for summary adjudication of the vicarious liability cause of action against it.  The judgment was therefore affirmed.

COMMENT

This case affirms that commuting to and from work is not within the scope of employment so as to impose vicarious liability on an employer, absent special circumstances.  However, the facts of each case must be examined to make that determination.

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