Filed 10/1/13
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIFTH APPELLATE DISTRICT
HALLIBURTON ENERGY SERVICES, INC.,
F064888
Plaintiff and Respondent,
(Super. Ct. Nos. CV271420,
v. CV271425, CV271803, CV271925
DEPARTMENT OF TRANSPORTATION, & CV273115)
Defendant and Appellant. OPINION
CARLY BAKER,
F064935
Plaintiff and Appellant,
v.
HALLIBURTON ENERGY SERVICES, INC.,
Defendant and Respondent.
MICHAEL BUXBAUM,
F064950
Plaintiff and Appellant,
v.
HALLIBURTON ENERGY SERVICES, INC.,
Defendant and Respondent.
APPEAL from a judgment of the Superior Court of Kern County. William D.
Palmer, Judge.
Law Offices of Martin N. Buchanan, Martin N. Buchanan; Girardi Keese,
Thomas V. Girardi and Shawn J. McCann for Plaintiff and Appellant Carly Baker.
Thorsnes Bartolotta McGuire, Vincent J. Bartolotta, Brett J. Schreiber, Benjamin
Siminou; Higgs, Fletcher & Mack, John Morris and Victoria E. Fuller for Plaintiff and
Appellant Michael Buxbaum.
Ronald W. Beals, Jeanne Scherer, Douglas L. Johnson, Lauren A. Machado, Bruce
D. McGagin and Peter Ackeret for Defendant and Appellant.
Wanger Jones Helsley, Timothy Jones, Michael S. Helsley and Patrick D. Toole
for Plaintiff and Respondent and for Defendant and Respondent.
-ooOoo-
Plaintiffs appeal from summary judgments granted in favor of defendant,
Halliburton Energy Services, Inc. (Halliburton), in these consolidated actions. We
conclude the trial court properly granted summary judgment on the ground the
undisputed facts demonstrated Halliburton cannot be held vicariously liable for the
tortious conduct of its employee. The employee was not acting within the scope of his
employment at the time of the accident; as a result, the requirements for imposing
respondeat superior liability cannot be established. Accordingly, we affirm.
FACTUAL AND PROCEDURAL BACKGROUND
Troy Martinez was employed by Halliburton as a directional driller from
November 2006 to May 2011. In December 2006, Martinez was assigned a company
pickup truck to drive. He had the option of using his personal vehicle or being assigned a
company truck and chose the latter. At the time the truck was assigned, his supervisor,
Steve Mulholland, told Martinez he could use the company vehicle to get to work and
back and to run personal errands en route; Martinez stated Mulholland told him he could
run errands and take care of business as long as he was back in time for his next shift.
Halliburton had a written policy, which Martinez reviewed prior to June 24, 2009, which
stated that company vehicles were not to be used for personal business, but could be used
2
to commute between home and work, “and may make a stop directly en route for
personal reasons while traveling to and from work.”
In September 2009, Martinez lived in Caliente, about 45 to 50 miles from
Bakersfield. He worked about 50 percent of the time in Bakersfield and 50 percent of the
time at other locations around California. In early September 2009, Martinez was
assigned to work on an oil rig in the ocean near Seal Beach; the job was expected to take
two to three weeks. Martinez worked a shift that began at 9:00 p.m. on September 12,
2009, and ended at 9:00 a.m. on September 13, 2009. After his shift on the oil rig ended
that morning, he returned to shore, got in the company pickup, and traveled
approximately 140 miles to Bakersfield, where he met his wife and daughter at a car
dealership to purchase a vehicle for his wife. The deal fell through and Martinez and his
family went to a restaurant and had lunch. Martinez then began the return trip to Seal
Beach. He intended to drive back to his hotel room in Seal Beach, pick up clean
coveralls, stop at Taco Bell and pick up dinner and food for later (because food was not
provided on the oil rig), and eat while he waited for the boat back to the oil rig for his
9:00 p.m. shift. Approximately 20 miles south of Bakersfield, as he began his ascent up
the Grapevine (Interstate Highway 5 (I-5) southbound), he was involved in an accident.
Martinez testified in deposition that he was traveling in the number one lane in heavy
traffic when he saw pebbles or gravel in the road; the truck began to fishtail, then it was
in the air. The pickup struck a vehicle in the northbound lanes of I-5, injuring the six
plaintiffs.
The six injured plaintiffs sued Halliburton, Martinez, and the State of California
Department of Transportation (Caltrans) in three separate actions.1 They alleged
Martinez’s pickup went off the pavement, or lost traction on gravel and went off the
1 Buxbaum did not sue Martinez.
3
pavement, traveled up a mound of dirt in the center divider, and was launched into the
air, landing on the northbound lanes of the freeway, where it collided with plaintiffs’
vehicle. Plaintiffs alleged causes of action for negligence against Martinez and against
Halliburton as his employer; they alleged Caltrans was responsible for a dangerous
condition of public property that contributed to the accident. Halliburton and Martinez
filed separate actions against Caltrans for indemnity and contribution. The cases were all
consolidated. Halliburton moved for summary judgment on the complaints filed by the
six injured plaintiffs, arguing that it was sued on theories of respondeat superior,
negligent supervision, and negligent entrustment, but it could not be held liable on those
theories because Martinez was not acting within the course and scope of his employment
at the time of the accident. The injured plaintiffs and Caltrans opposed the motions. The
trial court granted the motions and entered judgment in Halliburton’s favor in the three
actions. Plaintiffs, Carly Baker and Michael Buxbaum, and defendant, Caltrans, appeal.
DISCUSSION
I. Standard of Review
A grant of summary judgment is reviewed de novo. Summary judgment is
properly granted when no triable issue exists as to any material fact and the moving party
is entitled to judgment as a matter of law. (Code Civ. Proc., § 437c, subd. (c).) In
moving for summary judgment, a “defendant … has met his or her burden of showing
that a cause of action has no merit if that party has shown that one or more elements of
the cause of action … cannot be established, or that there is a complete defense to that
cause of action.” (§ 437c, subd. (p)(2).) Once the moving defendant has met its initial
burden, “the burden shifts to the plaintiff … to show that a triable issue of one or more
material facts exists as to that cause of action or a defense thereto.” (§ 437c, subd.
(p)(2).)
4
“As a summary judgment motion raises only questions of law regarding the
construction and effect of supporting and opposing papers, this court independently applies
the same three-step analysis required of the trial court. We identify issues framed by the
pleadings; determine whether the moving party’s showing established facts that negate the
opponent’s claim and justify a judgment in the moving party’s favor; and if it does, we
finally determine whether the opposition demonstrates the existence of a triable, material
factual issue. [Citations.]” (Tsemetzin v. Coast Federal Savings & Loan Assn. (1997) 57
Cal.App.4th 1334, 1342.) “There is a triable issue of 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.” (Aguilar v.
Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850, fn. omitted (Aguilar).) “The evidence of
the party opposing the motion must be liberally construed, and that of the moving party
strictly construed.” (Johnson v. Superior Court (2006) 143 Cal.App.4th 297, 308.)
II. Respondeat Superior
A. General rule
Halliburton’s motion for summary judgment was based primarily on its contention
that the evidence would not support a finding that Martinez was acting within the scope
of his employment with Halliburton at the time of the accident, and therefore Halliburton
could not be held liable to plaintiffs on a theory of respondeat superior. “Under the
doctrine of respondeat superior, an employer is liable for the torts of his employees
committed within the scope of their employment [citations]. The burden of proof is on
the plaintiff to demonstrate that the negligent act was committed within the scope of
employment. [Citations.]” (Ducey v. Argo Sales Co. (1979) 25 Cal.3d 707, 721-722.)
“Where the facts of the case make it arguable whether the employee has acted within the
scope of his employment, then the scope of employment issue is one properly decided by
the trier of fact. However, where the facts would not support an inference that the
5
employee acted within the scope of his employment and where there is no dispute over
the relevant facts, the question becomes one of law.” (Alma W. v. Oakland Unified
School Dist. (1981) 123 Cal.App.3d 133, 138 (Alma W.).)
“‘[T]he modern justification for vicarious liability 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. They 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.’
[Citation.]” (Hinman v. Westinghouse Electric Co. (1970) 2 Cal.3d 956, 959-960
(Hinman).) “The employer is liable not because the employer has control over the
employee or is in some way at fault, but because the employer’s enterprise creates
inevitable risks as a part of doing business. [Citations.]” (Bailey v. Filco, Inc. (1996) 48
Cal.App.4th 1552, 1559 (Bailey).) Under respondeat superior, an employer is liable for
the “‘risks that may fairly be regarded as typical of or broadly incidental to the enterprise
[the employer] has undertaken,’” that is, “the risks inherent in or created by the
enterprise.” (Hinman, supra, at p. 960.)
Some courts employ a two-prong test to determine whether an employee’s conduct
was within the scope of his employment for purposes of respondeat superior liability,
asking whether “‘1) the act performed was either required or “incident to his duties”
[citation], or 2) the employee’s misconduct could be reasonably foreseen by the employer
in any event [citation].’ [Citation.]” (Alma W., supra, 123 Cal.App.3d at p. 139.) If the
employee’s actions fall within either prong, the employer is liable for the injury. (Ibid.)
6
“‘“[F]oreseeability” in this context must be distinguished from “foreseeability” as a test
for negligence. In the latter sense “foreseeable” means a level of probability which
would lead a prudent person to take effective precautions whereas “foreseeability” as a
test for respondeat superior 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 the other costs of the employer’s business. [Citations.]’”
(Bailey, supra, 48 Cal.App.4th at p. 1559.) Thus, for respondeat superior liability to
attach there must be “a nexus between the employee’s tort and the employment to ensure
that liability is properly placed upon the employer.” (Id. at p. 1560.)
The most common, obvious cases in which respondeat superior liability arises are
those “in which the employee commits a tortious act while performing his or her ordinary
duties for the employer at the employer’s place of business. In such circumstances, the
employer is ordinarily liable for the employee’s tortious act, even if wholly unauthorized
and without benefit to the employer.” (Childers v. Shasta Livestock Auction Yard, Inc.
(1987) 190 Cal.App.3d 792, 801-802.) An exception is made when the employee has
substantially deviated from his duties for personal purposes at the time of the tortious act.
(Perez v. Van Groningen & Sons, Inc. (1986) 41 Cal.3d 962, 968; Bailey, supra, 48
Cal.App.4th at p. 1564.) While a minor deviation is foreseeable and will not excuse the
employer from liability, a deviation from the employee’s duties that is “so material or
substantial as to amount to an entire departure” from those duties will take the
employee’s conduct out of the scope of employment. (Bailey, at p. 1564.) For example,
when the employee leaves the employer’s premises on a lunch break, to get lunch or run
a personal errand, and the employee is not engaged in any errand or task for the
employer, the employee is not acting within the scope of his or her employment. (Id. at
p. 1566; Cain v. Marquez (1939) 31 Cal.App.2d 430, 435 (Cain).)
7
The undisputed evidence indicated Martinez was not performing his ordinary
duties for Halliburton at its place of business or at his assigned worksite at the time of the
accident. The accident occurred when he was between shifts, approximately 120 miles
away from his assigned worksite. Plaintiffs do not contend the basic rule of respondeat
superior—imposing liability on the employer for torts committed by the employee while
the employee is performing his or her ordinary duties for the employer at the employer’s
place of business—applies in this case. Rather, they contend respondeat superior liability
should be imposed because the facts fall within an exception to the going and coming
rule.
B. “Going and coming” rule and incidental benefit exception
“Under the ‘going and coming’ rule, an employee going to and from work is
ordinarily considered outside the scope of employment so that the employer is not liable
for his torts. [Citation.] The ‘going and coming’ rule is sometimes ascribed to the theory
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]. Nevertheless, there are exceptions to the rule.” (Hinman, supra, 2 Cal.3d at
p. 961.) One exception to the going and coming rule has been recognized when the
commute involves “‘an incidental benefit to the employer, not common to commute trips
by ordinary members of the work force.’ [Citation.]” (Jeewarat v. Warner Bros.
Entertainment, Inc. (2009) 177 Cal.App.4th 427, 435-436.) When the employer
incidentally benefits from the employee’s commute, that commute may become part of
the employee’s workday for the purposes of respondeat superior liability. Plaintiffs
contend the incidental benefit exception applies in this case.
The incidental benefit exception has been applied when the employer furnishes, or
requires the employee to furnish, a vehicle for transportation on the job, and the
negligence occurs while the employee is traveling to or from work in that vehicle.
8
(Henderson v. Adia Services (1986) 182 Cal.App.3d 1069, 1073-1074; Huntsinger v.
Glass Containers Corp. (1972) 22 Cal.App.3d 803, 810 (Huntsinger); Lobo v. Tamco
(2010) 182 Cal.App.4th 297, 301 (Lobo) [referring to this as the “required-vehicle
exception”].) The theory is that the employer benefits from the employee driving the
vehicle to and from work because the vehicle is then available for use in the employer’s
business during the working day. It is also available to the employee during off-duty
hours, in case it is needed for emergency business trips or to make business stops on the
way to or from the work place. (Huntsinger, supra, at p. 810; Lobo, supra, at pp. 302-
303.) “[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.” (Huntsinger, at p. 810.)
In opposing Halliburton’s motion for summary judgment, plaintiffs attempted to
show that Halliburton benefited from Martinez’s use of the company truck for his
commute to and from work, in order to invoke the incidental benefit exception to the
going and coming rule and create a triable issue of fact regarding whether Martinez was
acting within the scope of his employment at the time of the accident. We need not
decide whether the evidence presented would be sufficient to support a jury finding of an
incidental benefit to Halliburton, so that Martinez’s commute in the company truck
would be considered to be within the scope of his employment. Even if the incidental
benefit exception applies, Halliburton presented undisputed facts establishing that
Martinez was engaged in purely personal business at the time of the accident, and was not
acting within the scope of his employment for purposes of respondeat superior liability.
Plaintiffs failed to present evidence raising a triable issue of material fact on that issue.
9
Where the incidental benefit exception applies, the employee’s commute directly
between work and home is considered to be within the scope of employment for
respondeat superior purposes. Minor deviations from a direct commute are also included,
but there is no respondeat superior liability if the employee substantially departs from the
employer’s business or is engaged in a purely personal activity at the time of the tortious
injury.
In Hinman, the defendant’s employee was returning home from work at a job site
when his vehicle struck a police officer standing in the center divider of a freeway. The
court concluded the incidental benefit exception to the going and coming rule applied,
because the employee was paid for his travel time and travel expenses, which benefited
the employer because it could “reach out to a labor market in another area or to enlarge
the available labor market by providing travel expenses and payment for travel time.”
(Hinman, supra, 2 Cal.3d at pp. 959, 962.) The court stated: “We are satisfied that,
where, as here, the employer and employee have made the travel time part of the working
day by their contract, the employer should be treated as such during the travel time, and it
follows that so long as the employee is using the time for the designated purpose, to
return home, the doctrine of respondeat superior is applicable. It is unnecessary to
determine the appropriate rule to be applied if the employee had used the time for other
purposes.” (Id. at p. 962, first italics added.) The material facts were undisputed and the
court held the doctrine of respondeat superior applied as a matter of law. (Id. at p. 963.)
In Huntsinger, the plaintiffs’ decedent was killed when his motorcycle collided
with a pickup truck owned and driven by the defendant’s employee, who used it
extensively in carrying out the duties of his employment. (Huntsinger, supra, 22
Cal.App.3d at p. 806.) At the time of the accident, the employee was driving directly
from the employer’s office to the employee’s home. (Id. at pp. 806-807.) The court
concluded the incidental benefit exception to the going and coming rule applied.
10
Consequently, because the employee may have been acting within the scope of his
employment when driving home from the office, the trial court should not have granted
nonsuit in favor of the employer. (Id. at p. 810.) The court added: “We do not deal, of
course, with a case in which the employee was not directly driving home but was
engaged on some errand of his own.” (Ibid.)
In Lazar v. Thermal Equipment Corp. (1983) 148 Cal.App.3d 458 (Lazar), the
court addressed the issue Hinman and Huntsinger expressly did not decide: the effect of
a deviation from the direct route home. The employee was furnished with a company
truck, which he used in responding to customer calls. On the day of the accident, he
finished work and left the employer’s business premises in the company truck. Instead of
heading directly home, however, he proceeded in the opposite direction, intending to stop
at a store to make a purchase, and then go home. (Lazar, supra, at p. 461.) On the way
to the store, he was involved in an accident. The court concluded the incidental benefit
exception to the going and coming rule applied. (Id. at p. 463.) The court reiterated the
policy reason behind the respondeat superior doctrine: to place liability for losses caused
by the torts of employees on the employer whose enterprise generated them and could
absorb them and distribute them throughout the community through prices or insurance.
(Id. at p. 464.) It added that “[c]ategorization of an employee’s action as within or
outside the scope of employment thus begins with a question of foreseeability, i.e.,
whether the accident is part of the inevitable toll of a lawful enterprise.” (Ibid.)
“‘One way to determine whether the risk is inherent in, or created
by, an enterprise is to ask whether the actual occurrence was a generally
foreseeable consequence of the activity. However, “foreseeability” in this
context must be distinguished from “foreseeability” as a test for negligence.
In the latter sense “foreseeable” means a level of probability which would
lead a prudent person to take effective precautions whereas “foreseeability”
as a test for respondeat superior merely means that in the context of the
particular enterprise an employee’s conduct is not so unusual or startling
11
that it would seem unfair to include the loss resulting from it among other
costs of the employer’s business.’ [Citation.]
“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.” (Lazar, supra, 148
Cal.App.3d at pp. 464-465.)
Generally, “[i]f the main purpose of [the employee’s] activity is still the
employer’s business, it does not cease to be within the scope of the employment by
reason of incidental personal acts, slight delays, or deflections from the most direct
route.” (Lazar, supra, 148 Cal.App.3d at p. 465.) “‘[A]cts necessary to the comfort,
convenience, health, and welfare of the employee while at work, though strictly personal
to himself and not acts of service, do not take him outside the scope of his employment.’
[Citation.]” (Ibid.)
The undisputed evidence indicated the employee intended to make a brief stop for
a minor errand “broadly speaking, on the way home.” (Lazar, supra, 148 Cal.App.3d at
pp. 465-466.) The court concluded this was a minor deviation from the employer’s
business, which was necessary to the employee’s comfort and convenience. It was also
foreseeable. “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.” (Id. at p. 466.)
The risk of an accident during such a minor and foreseeable deviation was part of the
inevitable toll of a lawful enterprise. (Ibid.) The court concluded, as a matter of law, the
doctrine of respondeat superior applied. (Id. at p. 467.)2
2 The recent case of Moradi v. Marsh USA, Inc. (Sept. 17, 2013, B239858)
__Cal.App.4th__ [2013 Cal.App.4th Lexis 736], which was cited during oral argument,
followed Lazar in a situation involving a minimal deviation from the employee’s commute
home. An employee, who was required to and did regularly use her vehicle for business
purposes before, during and after work-hours, left the office in her vehicle, planning to stop on
12
When the tortious act occurs while the employee is engaged in purely personal
pursuits, the employee is not acting within the scope of his or her employment and the
employer does not incur respondeat superior liability. (Sunderland v. Lockheed Martin
Aeronautical Systems Support Co. (2005) 130 Cal.App.4th 1, 11 (Sunderland).) This rule
applies when the employee substantially departs from his or her commute or when the
entire trip is a substantial departure from his or her job duties.
In Le Elder v. Rice (1994) 21 Cal.App.4th 1604 (Le Elder), the employee was
driving his own vehicle when he struck the plaintiff as she crossed the street on her
bicycle. The employee used the vehicle in his employment and was reimbursed for
maintenance costs and mileage. (Id. at p. 1606.) At the time of the accident the
employee had driven his children from home to school, and he was returning home; he
intended to make a business call from his home later in the morning. (Ibid.) The court
rejected the plaintiff’s argument that the employer was automatically liable on a
respondeat superior theory because it required the employee to be on call 24 hours a day,
seven days a week. (Id. at p. 1607.) Rather, the court applied the general rule that an
employee’s scope of employment is determined by ascertaining whether the risk involved
was typical of or broadly incidental to the enterprise undertaken by the employer. (Ibid.)
The court concluded the employee’s trip to the children’s school was such a
substantial personal deviation from his employment duties that it would be unfair to hold
the employer vicariously liable for the accident. (Le Elder, supra, 21 Cal.App.4th at
the way home to buy some frozen yogurt, then attend a yoga class before going home. On her
way, as she made a left turn from her route home into the parking lot of the yogurt shop, her
vehicle collided with the plaintiff’s motorcycle, injuring him. The court applied the required-
vehicle exception to the going and coming rule, found the employee’s deviation from her route
home was minor and foreseeable, concluded she was acting within the scope of her employment
at the time of the accident, and reversed the summary judgment in favor of her employer.
(Moradi, supra, at pp. *41, 53-54.)
13
p. 1608.) The plaintiff argued driving the vehicle was a typical part of the employer’s
enterprise, essential to the employee’s duties, and it was the employee’s custom to be on
the road at that time of the day; the possibility of accidents was therefore foreseeable to
the employer. She also argued that the return trip was not part of a personal errand,
because the errand had been completed and the employee was on his way home, a
location from which a business call was to be made. (Ibid.) The court dismissed these
considerations as irrelevant. (Ibid.) It also rejected a proposed totality of the
circumstances analysis, which would have based liability on the employee’s on-call
status, the use of a pager, the annual mileage requirement, and the reimbursement for
travel and maintenance expenses.
At the time of the accident, the employee was engaged in the purely personal
activity of driving his children to school. He planned to eat breakfast and read the
newspaper when he returned home, then make his business call an hour and fifteen
minutes later. The court concluded “[t]he entire trip was a substantial deviation from his
employment duties.” (Le Elder, supra, 21 Cal.App.4th at p. 1608.) As a matter of law,
the employee was not within the scope of employment at the time of the accident, and the
employer was not vicariously liable for the injury. (Id. at p. 1610.)
In Sunderland, the employer, headquartered in Georgia, assigned the employee to
work at Edwards Air Force Base in California for several months; the employee drove his
vehicle from Georgia to California, moved into an apartment, and worked on the base.
(Sunderland, supra, 130 Cal.App.4th at pp. 7-8.) On the employee’s last workday at
Edwards, he cleared out his office, packed his belongings at his apartment, visited his
father-in-law to say good-bye, and then drove to a fast food restaurant to buy dinner. In
the drive-through lane, his vehicle rear-ended the plaintiff’s. The next day, the employee
drove back to Georgia. (Id. at p. 8.)
14
The court rejected the plaintiff’s argument that the “commercial traveler rule,”
applicable in workers’ compensation cases, should apply in determining whether the
employee is acting within the scope of employment for respondeat superior purposes.
(Sunderland, supra, 130 Cal.App.4th at p. 8.) Under that rule, “‘a commercial traveler is
regarded as acting within the course of his employment during the entire period of his
travel upon his employer’s business,’” including while he is procuring food and shelter.
(Id. at p. 10.) The court instead applied the rule that the employer is vicariously liable
only if the employee committed the tortious act within the scope of his employment, and
the act is within the scope of employment when “‘the risk of such an act is typical of or
broadly incidental to the employer’s enterprise’” or “‘inherent in, typical of or created by
the work so that it is a foreseeable risk of the particular employment.’” (Id. at p. 9.) The
court explained: “If an employee’s act is purely personal, it is not ‘typical of or broadly
incidental to the employer’s enterprise.’ [Citation.] If the main purpose of the injury-
producing activity ‘was the pursuit of the employee’s personal ends, the employer is not
liable.’ [Citations.]” (Id. at p. 11.) The court concluded the employee’s trip to the fast
food restaurant was personal and not related to his employment or his employer. The
plaintiff’s assertion that the employee was paid a per diem for housing and transportation
expenses, which covered the cost of transportation to the fast food restaurant, did not
change the outcome; the employee had performed no services for the employer for
several hours before the trip to the fast food restaurant, and that trip was for his own
benefit. (Ibid.) The purpose of the employee’s trip to buy fast food “was a purely private
and personal activity, ‘a substantial personal deviation from his employment duties’
sufficient to make it unfair to hold [the employer] vicariously liable. [Citation.]” (Id. at
p. 12.) This activity did not create a risk typical of or broadly incidental to his
employment. Consequently, the employee was not acting within the scope of his
employment. The court affirmed summary judgment in favor of the employer. (Ibid.)
15
Courts have applied the same rule—distinguishing between activities that are
typical of or broadly incidental to the employer’s enterprise and activities that are purely
personal to the employee—in determining whether activities of the employee during the
workday are within the scope of employment. For example, the general rule is that, when
an employee is traveling to or from lunch, even in the employer’s vehicle, and
performing no services for the employer, he is not acting within the scope of his
employment. (Peccolo v. City of Los Angeles (1937) 8 Cal.2d 532, 539; Gipson v. Davis
Realty Co. (1963) 215 Cal.App.2d 190, 209-210 (Gipson); see also, Cain, supra, 31
Cal.App.2d at pp. 435, 438.) As the Gipson court stated:
“[T]he … employer is not liable for the acts of his … employee while the
latter is pursuing his own ends, even though the injury complained of could
not have been committed without the facilities afforded to the … employee
by his relation to his … employer. [Citation.] Therefore, whether or not
the … employer is responsible for the act of the … employee at the time of
the injury depends upon whether the … employee was engaged at that time
in the transaction of the business of his … employer, or whether he was
engaged in an act which was done for his own personal convenience or
accommodation and related to an end or purpose exclusively and
individually his own.” (Gipson, supra, 215 Cal.App.2d at p. 209.)
Thus, even if the employee was driving a company vehicle at the time the accident
occurred, the employer is not liable if the driving “was done for his own personal
convenience or accommodation and related to an end or purpose exclusively and
individually his own.” (Gipson, supra, 215 Cal.App.2d at p. 209.)
As these cases indicate, the incidental benefit exception to the going and coming
rule may bring the employee’s commute to and from work within the scope of the
employee’s employment, if the employee does not deviate substantially from a direct
commute in order to carry out his own personal business. The exception does not apply,
however, if the employee substantially departs from his or her employment duties during
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the commute. It also does not apply if the employee’s entire trip serves only his or her
own personal purposes.
The undisputed facts presented by Halliburton’s motion for summary judgment
demonstrated that Martinez’s purpose in traveling to and from Bakersfield on September
13, 2009, was entirely personal. He finished his shift and drove the company truck 140
miles to Bakersfield; he intended to meet his wife at a car dealership and sign the papers
to purchase a vehicle for her. Martinez was not performing any services or running any
errands for Halliburton. His supervisor was unaware of the trip until after the accident.
The trip was not made in the furtherance of any business activity of the employer. The
risk of a traffic accident during this personal trip was not a risk inherent in, or “‘“typical
of or broadly incidental to,”’” Halliburton’s enterprise. (Bailey, supra, 48 Cal.App.4th at
pp. 1558-1559.)
Plaintiffs argue Martinez was returning to work at the time of the accident, so the
trip, or at least the return from Bakersfield, was part of Martinez’s commute back to
work. We do not believe the purpose or destination of the return leg of the journey can
be separated from the purpose of the trip as a whole in this manner. Under plaintiffs’
theory, the return leg of any personal trip in the company vehicle, regardless of the length
of time spent, the distance traveled, and the complete lack of connection between the trip
and the enterprise of the employer or the work of the employee, would give rise to
respondeat superior liability, as long as the employee’s ultimate destination on return was
the workplace. We reject such an expansion of the incidental benefit exception to the
going and coming rule.
The purpose of Martinez’s trip as a whole was entirely personal. The trip to
Bakersfield was such a complete and material departure from his employment duties that
it could not reasonably be considered to be an activity in pursuit of the employer’s
business or a minor deviation from the strict course of the employee’s duties. It was such
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a marked turning aside from the employer’s business as to be inconsistent with its
pursuit: driving to a location 140 miles from his assigned worksite, a trip that would take
more than six hours to complete, without asking his employer’s permission or informing
his supervisor that he would be gone, when, according to plaintiffs, Martinez was on call
24 hours, seven days a week, and might be called at any time to proceed to a new
location. This activity would be entirely inconsistent with serving the employer’s
purposes. Consequently, the trip to Bakersfield was, as a matter of law, outside the scope
of Martinez’s employment.
Plaintiffs attempt to characterize the trip to Bakersfield as part of Martinez’s
commute between the oil rig in Seal Beach and his home in Caliente. But the evidence
presented indicated Martinez did not go home, because it was too far out of the way.
Martinez met his wife and daughter at a car dealership in Bakersfield, 45 to 50 miles
from his home, in order to sign the documents necessary to purchase a vehicle for his
wife. The undisputed evidence does not support a contention that Martinez was
commuting between his home in Caliente and the oil rig at the time of the accident.
Plaintiffs argue that the central or critical question in this case is foreseeability;
they attempt to divorce that question from the question whether Martinez was engaged in
a personal errand or a substantial departure from his employment duties at the time of the
accident. The two cannot be separated.
In determining whether an employee’s activity was within the scope of
employment for respondeat superior purposes, some cases have employed a two-prong
test, asking “if the employee’s action is (1) ‘either required or “incident to his duties”’ or
(2) ‘could be reasonably foreseen by the employer in any event.…’ [Citation.]” (Bailey,
supra, 48 Cal.App.4th at p. 1559.) If the employee’s act satisfies either prong of the test,
the employer is liable. (Ibid.) The Bailey court rejected the employee’s argument that
the two-prong test differed from a foreseeability-based test, concluding that, under either
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prong of the two-prong test, or under a general foreseeability test, both foreseeability and
a nexus between the tortious act and the employment are required. (Id. at p. 1561.)
“Respondeat superior liability demands a nexus between the employee’s
tort and the employment to ensure that liability is properly placed upon the
employer. ‘The nexus required for respondeat superior liability—that the
tort be engendered by or arise from the work—is to be distinguished from
“but for” causation. That the employment brought tortfeasor and victim
together in time and place is not enough. We have used varied language to
describe the nature of the required additional link (which, in theory, is the
same for intentional and negligent torts): the incident leading to injury
must be an “outgrowth” of the employment ...; the risk of tortious injury
must be “‘inherent in the working environment’” … or “‘typical of or
broadly incidental to the enterprise [the employer] has undertaken.’” …’
[Citation.] Yet another way to describe the necessary linkage is the
employee’s tort must be ‘foreseeable in light of [the employee’s] duties.’
[Citation.]” (Bailey, supra, 48 Cal.App.4th at p. 1560.)
The court continued:
“Under the first prong of the two-prong test, respondeat superior liability
attaches if the employee’s act is ‘either required or “incident to his
duties”….’ [Citation.] Such an act would not be considered—in the words
of the foreseeability-based test—‘so unusual or startling that it would seem
unfair’ to appropriate the resulting loss to the employer; and any resulting
tort could ‘“‘fairly be regarded as typical of or broadly incidental’ to the
enterprise undertaken by the employer.…”’ [Citations.] In other words,
when the first prong of the two-prong test is satisfied, so are both the nexus
and respondeat superior foreseeability requirements. In addition,
respondeat superior foreseeability involves a nexus requirement for
liability, and not simply a ‘“but for” causation.’ [Citation.] In short, the
foreseeability-based test and the two-prong test are not so much different
tests, but different ways of articulating the same test for scope of
employment.” (Bailey, supra, 48 Cal.App.4th at p. 1561.)
The undisputed facts do not support a nexus between the employee’s activity—
driving to Bakersfield and back to buy a vehicle for his wife—and his employment.
After his shift was over, Martinez left the Seal Beach area, where his employer had
assigned him to work, and traveled 140 miles to a car dealership to purchase a vehicle.
His employer did not send him to Bakersfield; Martinez performed no services for
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Halliburton during the trip. The trip was a purely personal activity, unrelated to his
employment duties. The tort was not engendered by, and did not arise from, Martinez’s
work. The activity leading to the injury was not an outgrowth of Martinez’s
employment; it was the result of Martinez’s pursuit of his personal interests. “Where an
employee pursues his own ends, the use of property or facilities entrusted to him by the
principal is an inadequate basis for imputing liability to the employer.” (Alma W., supra,
123 Cal.App.3d at p. 140.) Thus, where Martinez was engaged in a personal activity, the
fact that he used the company truck to accomplish it was insufficient to establish the
required nexus between his activity at the time of the accident and his employment with
Halliburton. Martinez’s trip to Bakersfield was not a minor, foreseeable deviation from
his work duties, like stopping on the way home to purchase an item at a nearby store. It
was a substantial departure from his employment duties, “so unusual or startling that it
would seem unfair to include the loss resulting from it among other costs of the
employer’s business.” (Id. at p. 142.) There was no nexus between the trip and
Martinez’s employment duties.
Caltrans argues that, if there is proof the vehicle belongs to the employer and it is
being operated by the employee at the time of the accident, “an inference arises sufficient
to support a finding that the employee was operating the automobile (a) by the authority
of his employer, and (b) within the scope of his employment.” (Shields v. Oxnard
Harbor Dist. (1941) 46 Cal.App.2d 477, 487.) It contends this inference is sufficient to
raise a triable issue of fact regarding scope of employment; because these facts were
established, it argues, the inference precluded summary judgment.
In reviewing the grant of summary judgment, “[w]e liberally construe the evidence
in support of the party opposing summary judgment [citation] and assess whether the
evidence would, if credited, permit the trier of fact to find in favor of the party opposing
summary judgment under the applicable legal standards.” (City of San Diego v. Haas
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(2012) 207 Cal.App.4th 472, 487.) The opposing party raises “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.” (Aguilar, supra, 25 Cal.4th 826, 850, fn. omitted.) 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.”
(Id. at p. 843.) Although ownership of the vehicle and employment of the driver may
give rise to an inference that the driver was acting within the scope of employment in
driving the vehicle, such an inference would not be reasonable when the driver was
pursuing his own activities for his own purposes at the time of the accident. An inference
the employee was acting within the scope of employment may be dispelled as a matter of
law by “‘clear, positive and uncontradicted evidence which is not open to doubt.’
[Citation.]” (Meyer v. Blackman (1963) 59 Cal.2d 668, 676.) Considering all of the
evidence presented, including the undisputed evidence that Martinez was engaged in a
purely personal activity when he traveled to Bakersfield intending to buy a vehicle for his
wife, a reasonable trier of fact could not find that Martinez was acting within the scope of
his employment on the return trip from Bakersfield.
The incidental benefit exception to the going and coming rule extends the scope of
employment only to the employee’s commute to and from work. Even where the
exception applies, it brings the commute within the scope of employment only to the
extent the employee does not deviate substantially from the commute to pursue his own
personal business. The undisputed evidence indicates Martinez was departing
substantially from his commute and his job duties at the time of the accident, and there is
no necessary nexus between Martinez’s activities at the time of the accident and
Halliburton’s business enterprise. Consequently, the trial court correctly determined that
Halliburton could not be held liable to plaintiffs on a respondeat superior theory.
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III. Negligent Entrustment or Supervision
Baker’s first amended complaint included allegations of negligent hiring and
supervision of Martinez and negligent entrustment of the vehicle to him. Buxbaum’s
complaint contained a cause of action for negligent supervision of Martinez. By granting
Halliburton’s motion for summary judgment, the trial court adjudicated those claims in
favor of Halliburton. Neither plaintiff has challenged the judgment on those claims in
this appeal. Accordingly, we need not address them.
IV. Appeal by Caltrans
In a footnote in its respondent’s brief, Halliburton asks that we dismiss Caltrans’s
appeal on the ground Caltrans has no standing to appeal. Halliburton asserts only an
aggrieved party may appeal (Code Civ. Proc., § 902), and Caltrans is not a party
aggrieved by the judgments against Baker and Buxbaum and in favor of Halliburton. We
decline Halliburton’s request for dismissal, because it did not serve and file a separate
motion for such relief as required by California Rules of Court, rule 8.54.
DISPOSITION
The judgment is affirmed. Halliburton is entitled to recover its costs on appeal.
_____________________
HILL, P. J.
WE CONCUR:
_____________________
GOMES, J.
_____________________
DETJEN, J.
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