Rahman v. State

J.M. Johnson, J.

¶26 (dissenting) — The majority holds the State of Washington liable for injury to Mohammad Shahidur Rahman’s wife (Rizwana Rahman), even though he was prohibited from taking her in the state vehicle and he negligently drove off the road, causing the injury. Faithful application of this court’s precedent, including McNew, Smith, Poundstone, and Dickinson,7 however, requires the conclusion that Mr. Rahman was outside the scope of state employment. The question under Washington state law should turn on the issue of whether Mr. Rahman was authorized to transport his wife in this state-owned vehicle. Because Mr. Rahman was not so authorized, and indeed was specifically prohibited from doing so, and because the majority’s ruling legislates new policy to extravagantly expand state liability, I dissent.

Facts

¶27 Mr. Rahman temporarily worked as an intern with the Washington State Department of Ecology (Department) from June 1, 2005, until August 31, 2005. When he was hired, Mr. Rahman completed a new employee orientation, during which employee policies were reviewed with him, specifically including the use of state-owned vehicles, Policy 11-10. That policy reads, in relevant part, “Ecology vehicles are not to be used for personal trips unrelated to the state *826business for which they were assigned, nor to transport passengers that are not on official state business.” Clerk’s Papers at 155 (emphasis added). The secretary specifically remembers reviewing this policy with Mr. Rahman and directing him to the Department intranet site to review all policies. Mr. Rahman and his supervisor also signed a checklist form to show that the policy had been reviewed with him. Nevertheless, Mr. Rahman later claimed that he “had no ... idea” about the vehicle policy because it “was my very first job in the U S [sic] and unfortunately I did not go through all the documents.” Id. at 117.

¶28 Mr. Rahman’s duties at the Department included accompanying senior engineers on site inspections. In late July, Mr. Rahman was directed to travel to Spokane for one such inspection. He received permission to check out a state-owned vehicle and to drive it home the night before the trip, since he was leaving early the next morning. Mr. Rahman signed another form acknowledging that he was “responsible for reading and being in compliance with all Department of Ecology vehicle-related policies” when he checked out the vehicle. Id. at 77.

¶29 The evening before his trip his wife, Rizwana, apparently asked to ride with Mr. Rahman because she was ill and lonely. Mr. Rahman admitted, responding, “Well, I don’t know if . . . it’s going to be a good idea” because “I wasn’t sure if that was ... a rule or if I was supposed to tell somebody about it.” Id. at 166. However, Mr. Rahman eventually consented and took his wife with him in the state vehicle across the state. He did not inform anyone at the Department that he was taking his wife with him nor did he ask for permission. His supervisor later testified that permission to take Mrs. Rahman would not have been granted had Mr. Rahman asked.

¶30 The Rahmans left their home in Olympia and headed for Spokane early on July 26, 2005. It was dark and drizzly when they reached the summit of Tiger Mountain on State Route 18. Mr. Rahman lost control of the vehicle, and *827it veered off the highway, struck a tree, and rolled. Mrs. Rahman was seriously injured during the crash.

¶31 The parties agree that Mr. Rahman was driving negligently at the time of the accident and that he violated state policies by allowing Mrs. Rahman to ride with him in the vehicle. Mr. Rahman’s supervisor formally reprimanded him for violating the Department’s policy against transporting unauthorized passengers in state vehicles. Mrs. Rahman initially filed a personal injury action against both her husband and the State, but later amended her complaint, dropping her husband and naming the State as the sole defendant.

Analysis

¶32 The majority asserts that the question of vicarious liability in this unfortunate case must be resolved by the analysis applied in McNew, Smith, Poundstone, and Dickinson. Majority at 822-23. These cases actually reveal that this court has held that the determination of whether an employee is within the scope of employment turns first on the employee’s scope of authority. Far from leading to the majority’s conclusion, under our precedent, whether Mr. Rahman was outside the scope of employment for determining the State’s liability turns on whether he had implied or apparent authority to transport his wife in the state-owned vehicle. He did not. Indeed, such conduct was expressly prohibited.

A. The Majority Misreads Dickinson and Smith

¶33 I agree with the majority that an employee’s disobedience of certain workplace rules does not automatically take the employee out of the scope of employment. I do not agree, however, that unauthorized employee action should always result in employer liability, just as I do not agree that an employer is never liable when an employee acts contrary to instructions. Our case law is more intricate and precise than that.

*828¶34 In Dickinson, this court affirmed the test we have adopted for determining whether an employee is, at a given time, acting within the scope of his employment:

“[W]hether the employee was, at the time, engaged in the performance of the duties required of him by his contract of employment, or by specific direction of his employer; or, as sometimes stated, whether he was engaged at the time in the furtherance of the employer’s interest.”

Dickinson, 105 Wn.2d at 467 (quoting Elder v. Cisco Constr. Co., 52 Wn.2d 241, 245, 324 P.2d 1082 (1958) (citing Greene v. St. Paul-Mercury Indem. Co., 51 Wn.2d 569, 573, 320 P.2d 311 (1958))). Greene, in turn, cites to Smith, in which the court had elaborated and held that “ ‘[a]n act, although forbidden, or done in a forbidden manner, may be within the scope of employment’ ” and that an employer may be liable for some negligent acts of his employee, although such an act may be contrary to instructions. Dickinson, 105 Wn.2d at 470 (emphasis added) (alteration in original) (quoting Restatement (Second) of Agency § 230 (1958)); see also Greene, 51 Wn.2d at 573. The reason for this language (“may” instead of “is”) reflects the true nature of our careful inquiry, which is expressly spelled out in the Smith case. Smith, 34 Wn.2d at 623-24.

¶35 In Smith, we stated, “ ‘[A]s a general rule, an employer is liable for acts of his employee within the scope of the latter’s employment notwithstanding such acts are done in violation of rules, orders, or instructions of the employer.’ ” Id. at 623 (emphasis added) (quoting 35 Am. Jur. Master and Servant § 559, at 993 (1941)). But general rules come with exceptions:

“In short, when it is asserted that the employee acted without the knowledge of the employer and without his approval, or in violation of his orders and instructions, the question of liability, as in other cases, is determined by whether the employee was in fact acting within the scope of his implied or apparent authority. If he was not, the employer is not to be held liable, although a prohibition by the employer may be a factor in determining, in a doubtful case, whether the act of the employee was *829incidental to the employment so as to be within the scope thereof.”

Id. at 623-24 (emphasis added) (quoting 35 Am. Jur., supra, § 559, at 993).8 Smith correctly captures the essence of Washington law. Therefore, the majority’s conclusion is not the logical consequence it posits. Instead, whether the Department is liable in this case should turn on whether Mr. Rahman had the implied or apparent authority to transport Mrs. Rahman.9 The act of transporting his wife, moreover, was not incidental to Mr. Rahman’s employment but was instead an independent (and personal) decision not arising as a consequence of his employment.

B. The Majority Misreads McNew and Poundstone

¶36 As the language in Dickinson and Smith implicates, our scope of employment analysis requires consideration of whether there has been an authorized or unauthorized act on the part of the employee. A thorough reading of McNew and Poundstone, and the cases they cite, confirms that whether Mr. Rahman was authorized to transport Mrs. *830Rahman is dispositive of the Department’s liability in this case.

¶37 In McNew, we again noted that “[i]f the work of the employee creates the necessity for travel, he may be in the course of his employment though he is serving at the same time some purpose of his own.” McNew, 37 Wn.2d at 499 (emphasis added). This statement is made after the court observed that “[t]he general trend of authority is in the direction of holding that, where the employee is combining his own business with that of his employer ... no nice inquiry will be made as to which business the employee was actually engaged in when a third person was injured . . . .” Id. at 497; majority at 817. In making this statement, the court in McNew cites to several cases in which “[t]hese principles have found expression.”McNew, 37 Wn.2d at 498. Careful reading of these cases reveals yet again that whether an employee’s action was authorized goes hand in hand with a complete analysis of the scope of employment. Although an unauthorized action does not always take the employee outside the scope of employment, it is not the irrelevant inquiry that the majority asserts (see majority at 822). E.g., Carlson v. P.F. Collier & Son Corp., 190 Wash. 301, 317, 67 P.2d 842 (1937) (employer was vicariously liable in a case involving an automobile accident; the applicable rule hinged on whether the employee’s use of the vehicle was either expressly or impliedly authorized by the employer); Carmin v. Port of Seattle, 10 Wn.2d 139, 152, 116 P.2d 338 (1941) (another case involving an automobile accident, affirming Washington precedent that the person injured will not be precluded from recovering from the employer “ ‘if the servant’s use of the vehicle was, either expressly or impliedly, authorized by the employer’ ” (emphasis added) (internal quotation marks omitted) (quoting R.P.D., Annotation, Employer’s Liability for Negligence of Employee in Driving His Own Car or Other Vehicle in Employer’s Business, 87 A.L.R. 787 (1933) and citing Rice v. Garl, 2 Wn.2d 403, 408, 98 P.2d 301 (1940))); Leary v. Dep’t of Labor & Indus., 18 Wn.2d 532, 542-43, 140 P.2d 292 *831(1943) (holding defendant was in the course of his employment in using his car in an attempt to remove another car so that it would not block the entrance to the gate where defendant was authorized to employ a usual or suitable means to accomplish the employer’s purpose). Cf. Church v. Dep’t of Labor & Indus., 179 Wash. 443, 38 P.2d 234 (1934) (action was within scope of employment, but whether employee had authority to act was not an issue before the court); Poundstone, 189 Wash, at 499 (action was within scope of employment although it was unauthorized in that case, with the majority relying on McQueen v. People’s Store Co., 97 Wash. 387, 166 P. 626 (1917)); Leuthold v. Goodman, 22 Wn.2d 583, 594-95, 157 P.2d 326 (1945).

¶38 In Leuthold, the court noted that we have held that a driver’s deviation from his authorized line of travel was so marked and continuous as to take him outside the scope of his authority. Leuthold, 22 Wn.2d at 594-95; Savage v. Donovan, 118 Wash. 692, 694, 204 P. 805 (1922). Although the court in Leuthold held that the employee was acting within the scope of his employment when he used his employer’s truck to deliver his own rubbish to the dump and to make a trip to his own home, the court so held because the employer had authorized the employee to take the truck the night before and had instructed him to transport a load of the employer’s rubbish to the dump and to work on the vehicle over the weekend at the employee’s home. Leuthold, 22 Wn.2d at 587-88, 595-96.

¶39 In sum, the majority patches together parts of McNew, Smith, Dickinson, and Poundstone to support its conclusion. However, as this court cautioned in McNew, “[i]f we should take out of their settings some of the statements made by the foregoing authorities, as well as many others along the same line which might be cited, and apply them literally . . . this would extend the doctrine of liability beyond its true scope.” McNew, 37 Wn.2d at 498. Unlike the majority, I would heed this cautionary note.

*832¶40 In Poundstone, moreover, we looked to persuasive authority from the Wisconsin Supreme Court, which had reasoned:

“If it were true that a servant is outside the scope of his employment whenever he disobeys the orders of his master the doctrine of respondeat superior would have but scant application, for the master could always instruct his servant to use ordinary care under all circumstances. The servant’s negligence would therefore always be contrary to orders and the nonliability of the master would follow. But such is not the law. The servant [in this case] is within the scope of his employment when he is engaged in the master’s service and furthering the master’s business though the particular act is contrary to instructions.”

Poundstone, 189 Wash, at 501 (emphasis added) (quoting Smith v. Yellow Cab Co., 173 Wis. 33, 180 N.W. 125 (1920)). This is true enough. But the fine point that may be gleaned from the persuasive reasoning in Poundstone, however, is that the rule of law applicable in instances where the employee did not have the authority to act has two parts.

¶41 First, it is not the case that an employer should always avoid liability where the employee disregards his employer’s instructions, as such a rule could eviscerate the sound doctrine of respondeat superior as the majority in Poundstone suggests.10 Second, however, it is not the case that an employer is always vicariously liable where the employee disregards his employer’s instructions, especially where those instructions specifically define the scope of the employee’s authority and define the boundaries and extent of the employer’s control over the employee.

*833¶42 An employer cannot avoid all liability simply by instructing his employees to avoid negligence while maintaining the actual control of the employee, which is the fundamental premise behind respondeat superior.11 In the same way, it is a misapplication of the doctrine to hold that an employer is always liable whenever an employee engages in an unauthorized act.12

¶43 A full reading of our precedent removes two foundations of the majority’s argument: first, that the analysis under McNew, Smith, Poundstone, and Dickinson necessarily results in vicarious liability in this case (it does not) and, second, that the Restatement (Second) of Agency § 242 (1958),13 relied upon by the trial court, speaks only to the question of apparent authority, not to the scope of employment. These are in fact interrelated issues, as revealed by our case law.

C. The Majority Wrongfully Dismisses Long-Established Precedent: McQueen, Gruber, and Fischer14

¶44 A third foundation of the majority’s argument — that McQueen, Gruber, and Fischer are not dispositive here — is removed when the implications of our precedent play out. Majority at 821-22. To use the majority’s language, “look-ting] behind the language [to] understand the principles at *834issue” in Dickinson, Smith, McNew, and Poundstone actually reaffirms that McQueen, Gruber, and Fischer continue as controlling precedent. Id. at 822.

¶45 In Fischer, a railroad company was held not liable for injuries sustained by a man riding on a passenger train’s engine with the permission of the train’s engineer. The court so held because the engineer had no real or apparent authority to invite the man to ride. Fischer, 52 Wash, at 471.

¶46 In Gruber, a man rented a moving truck belonging to a Spokane moving company to transport some of his household goods across town. Gruber v. Cater Transfer Co., 96 Wash. 544, 544-45, 165 P. 491 (1917). Although not engaged in the business of carrying passengers, the driver of the truck agreed to allow the man to ride along on the back of the truck, so as to give the employees directions about where to put his things when they arrived (both the driver and passenger seats were occupied). Id. at 545. Unfortunately, the man fell off or was thrown from the back of the truck and was injured. Id. at 546. The court denied the man’s claim seeking recovery from the company on the grounds that the “driver did not have authority to invite or permit [the man] to ride upon the truck.” Id. at 547.

¶47 In McQueen, a deliveryman invited two “young ladies” to ride on the running board of his employer-owned delivery vehicle. McQueen, 97 Wash, at 387-88. One of the ladies was injured when she jumped or was thrown from the vehicle; she sued the deliveryman’s employer for her injuries under the doctrine of respondeat superior. Id. at 388. As in Gruber, the court held that the employer was not liable for the injury because the deliveryman, in inviting the ladies to ride, “was not acting within the scope of his employment, there being no question that he had no authority to invite or permit persons to ride with him while delivering merchandise for [his employer].” Id. at 389-90. It is unclear whether the deliveryman was expressly told not to have guests in the vehicle, as Mr. Rahman was here, but the court nevertheless noted:

*835[The deliveryman] was engaged in furthering his own pleasure and not in furthering his master’s business. His employment was to drive the truck. In inviting [the ladies] to ride with him, he was neither doing it as a means nor for the purpose of performing that work. It had no connection with his work, either directly or indirectly. In extending this invitation, [the deliveryman] was acting without any reference to the business in which he was employed.

Id. at 390. In so holding, the court carefully described how we go about determining the scope of employment in any given case:

While no decisive test can be given for determining whether or not a given act is within the scope of a servant’s employment, it is apparent from all the authorities that the act complained of must have been done while the servant was engaged in doing some act under authority from his master; not that, while engaged in the act, he is employed in the master’s business; but the act must have been in the furtherance of the master’s business and such as may be fairly said to have been either expressly or impliedly authorized by the master.

Id. at 388-89; see also Robinson v. McNeill, 18 Wash. 163, 164, 51 P. 355 (1897) (railroad company was not liable for injuries to boys who fell off a handcar because employee was not authorized to loan them the handcar; therefore, “his act... was entirely outside of and exceeded the scope of his employment”).

¶48 The majority asserts that these cases do not address the circumstances here because McQueen, Gruber, and Fischer dealt with cases in which the plaintiffs were allowed by an employee to ride on a part of a vehicle not designed to transport passengers. Majority at 820 (citing Pierson v. United States, 527 F.2d 459, 463 n.2 (9th Cir. 1975)).15 This distinction is not justification for a change in the rule of law and was not relied on by this court in these *836decisions.16 Whether a vehicle is engineered in a particular fashion does not distinguish these cases from the core issue: regardless of a vehicle’s design, both these cases and this case involve a situation in which the employee was not authorized to invite passengers onto a vehicle. Even assuming the majority’s distinction is relevant, Mrs. Rahman, like the injured parties in McQueen, Gruber, and Fischer, is also a plaintiff allowed by an employee (Mr. Rahman) to ride on a part of a vehicle not designed [i.e., intended by the employer] to transport unauthorized persons. To be sure, the issue of liability does not pivot on whether Mr. Rahman was authorized to drive the vehicle, but on his lack of authority to transport unauthorized persons. See majority at 820-21.

¶49 As articulated above, Fischer, Gruber, and McQueen all support the conclusion that an employee’s authority to act is part of the scope of employment analysis, as do Dickinson, Smith, McNew, and Poundstone. All that remains, then, is the majority’s teetering claim that its result reflects sound policy, which itself is not strong enough to justify overruling these cases. In re Rights to Waters of Stranger Creek, 77 Wn.2d 649, 653, 466 P.2d 508 (1970) (requiring “a clear showing that an established rule is incorrect and harmful before it is abandoned”).

D. The Majority’s Result Does Not Reflect Sound Policy

¶50 Consider the policies. First, underlying the doctrine of respondeat superior is the notion of authority or control over the alleged wrongdoer. 57B Am. Jur. 2d Negligence § 1096 (2001). As the majority puts it, respondeat superior *837“rests upon the relationship between an employer and employee, which is characterized by a right of control.” Majority at 818. This makes sense: whenever an employee causes some avoidable delay or inconvenience to a new, loyal, or potential customer, for example, it is often good business for the employer to correct his employee’s mistakes without charge.

¶51 Likewise, in circumstances where the employer retains control over the employee, it makes sense to hold an employer liable for injuries to third parties caused by the employee. Not only is the injured party more likely to be compensated for the injuries (because the employer is more likely to have “deep pockets”), but the employee also remains a direct extension of the employer, such that the injured party could expect the employer to take responsibility for the employee’s actions. It makes sense to hold the employer liable where the employer has made an objective representation to the employee or the injured party that the employee is controlled by the employer. But where the employee is not acting with actual or apparent authority, the employer has no control over the employee, and there is no objective manifestation from which such control could be presumed. Without control, therefore, the fundamental justification for respondeat superior is absent.

¶ 52 Second, although the imposition of workplace rules reflects some control of the employee’s actions, this alone does not justify a policy of liability per se. Cf. majority at 818. The existence of rules does not mean the employee is in fact controlled, especially where such rules define the scope of employment and are not merely to avoid legal responsibility. Here, Mr. Rahman’s scope of employment included accompanying other employees on site inspections and driving a state-owned vehicle to effect that purpose. His employment emphatically did not include transporting unauthorized passengers. While an employer cannot avoid all liability simply by enacting a rule against negligence, neither may the courts impose expansive liability on the taxpayers of this state. Such a policy decision should be left *838to the legislature to decide and is contrary to our case law as faithfully applied.

Conclusion

¶53 Mr. Rahman was prohibited from taking his wife on a trip with him in a state vehicle. His unauthorized action caused all resulting injuries. The question of the State’s liability under Washington state law should turn on the issue of whether Mr. Rahman was authorized to transport his wife in this state-owned vehicle. Faithful application of this court’s precedent (including McNew, Smith, Pound-stone, Dickinson, Fischer, Gruber, and McQueen requires the conclusion that Mr. Rahman was outside the scope of employment. Because Mr. Rahman was not authorized to transport his wife as a passenger in the state-owned vehicle, and indeed was specifically prohibited from doing so, and because the majority’s ruling legislates new policy of broad state liability, I respectfully dissent.

Madsen, C.J., and Alexander, J., concur with J.M. Johnson, J.

McNew v. Puget Sound Pulp & Timber Co., 37 Wn.2d 495, 224 P.2d 627 (1950); Smith v. Leber, 34 Wn.2d 611, 209 P.2d 297 (1949); Poundstone v. Whitney, 189 Wash. 494, 65 P.2d 1261 (1937); Dickinson v. Edwards, 105 Wn.2d 457, 716 P.2d 814 (1986).

Importantly, the Ninth Circuit Court of Appeals in Pierson v. United States quotes Smith to support its argument that “Washington case law clearly indicates that an act done in violation of an express prohibition of the master can be within the scope of the servant’s employment ‘where such an act was done in conjunction with other acts which were within the scope of the duties an employee has been instructed to perform.’ ” 527 F.2d 459, 464 (9th Cir. 1975) (emphasis added) (quoting Smith, 34 Wn.2d at 623). Again, using the language “can” instead of “is,” the Ninth Circuit’s reading of Washington case law is consistent with the law requiring an inquiry as to the scope of authority as part of the analysis necessary to determine whether a given act was within the scope of employment.

When an agent has actual authority to act on behalf of the principal, the agent’s exercise of the authority binds the principal. Blake Sand & Gravel, Inc. v. Saxon, 98 Wn. App. 218, 223, 989 P.2d 1178 (1999). Actual authority may be express or implied. King v. Riveland, 125 Wn.2d 500, 507, 886 P.2d 160 (1994). Implied actual authority depends upon an objective manifestation from the principal to the agent. Id. Here, the Department objectively manifested to Mr. Rahman that he did not have authority to transport unauthorized passengers. Mr. Rahman did not have implied authority. Mr. Rahman also did not have apparent authority, which exists only when the principal makes objective manifestations of the agent’s authority to a third person. Ranger Ins. Co. v. Pierce County, 164 Wn.2d 545, 555, 192 P.3d 886 (2008) (quoting King, 125 Wn.2d at 507). Mr. Rahman did not have apparent authority to transport unauthorized passengers because the Department did not make any objective manifestations to Mrs. Rahman.

I would also argue that a workplace rule such as the one posited in the Wisconsin Yellow Cab case is qualitatively different from the type of rule at issue in this case. That is, a blanket rule meant simply to avoid liability, such as “don’t be negligent,” is qualitatively different from a specific rule or policy that is meant to define the scope of the agent’s authority and is imposed for reasons other than mere avoidance of liability (such as ensuring the safety of the employee and of others, regulating the proper use of state-owned property ultimately owned by the taxpayers of Washington State, etc.). Therefore, it strains logic to apply the majority’s reading of Poundstone to all workplace rules.

For a history of the development of respondeat superior, see O.W. Holmes, Jr., Agency, 4 Haev. L. Rev. 345 (1891) and John H. Wigmore, Responsibility for Tortious Acts: Its History. — II., 7 Haev. L. Rev. 383 (1894).

Both the Court of Appeals and the majority of this court noted that the dissent in Poundstone relied in part on McQueen-, what they do not mention is that the majority in Poundstone also relied on McQueen in holding that “the employer is liable if the act complained of was incidental to the acts expressly or impliedly authorized or indirectly contributed to the furtherance of the business of the employer.” Poundstone, 189 Wash, at 499; majority at 823 n.5. As noted by the majority, McQueen describes apparent authority in terms of scope of employment. Majority at 821-22; McQueen, 97 Wash, at 390. There can be no doubt, given the case law, that this is because the two concepts are inextricably linked and are not independent inquiries.

Restatement (Second) of Agency § 242 was not carried over into the Restatement (Third) of Agency. Washington State has not adopted either restatement position.

Fischer v. Columbia & Puget Sound R.R., 52 Wash. 462, 100 P. 1005 (1909).

See supra note 8.

The Gruber court did note the nature and purpose of the moving truck in discussing its case. The court stated, “It seems to us that the presumption [that persons riding on certain parts of a vehicle are not lawfully there] is equally strong in this case [where the] driver did not have authority to invite or permit respondent to ride upon the truck, especially in the position which he did ride.” Gruber, 96 Wash, at 547. In other words, where the employee does not have authority to transport a passenger, the employer is presumed not to be legally obligated for any resulting injuries to the unauthorized passenger because the unauthorized passenger’s presence is completely outside of the master’s control— the very foundation of respondeat superior. Cf. majority at 818-19.