Posted On: December 22, 2011 by Robinson Calcagnie Robinson Shapiro Davis, Inc.

RESPONDEAT SUPERIOR: COURSE AND SCOPE OF EMPLOYMENT

Agustus Vogt v. Herron Construction, --- Cal.Rptr.3d ----, 2011 WL 5142986, 11 Cal. Daily Op. Serv. 13,556

A concrete subcontractor was injured at a construction site when he was run over by a personal vehicle owned and driven by an employee of another contractor. He then filed an action against the driver's employer under the doctrine of respondeat superior, alleging that the employee had accidentally run him over while moving his own pickup truck in order to allow the concrete subcontractor’s employees to begin pouring cement nearby.

The defendant moved for summary judgment, contending that its employee was not acting in the course and scope of his employment at the time of the accident, because he was moving his personal vehicle, which was not required for his job, and was doing so for a non-work-related purpose of preventing damage to the truck from splashing of wet concrete.

The trial court granted summary judgment but the court of appeal reversed, holding that by moving his truck, the worker was furthering the employer’s overall enterprise, and that moving the truck was necessary to “his comfort, convenience and welfare while on the job”:

"In applying these principles to this case, we begin with the fact that Vogt asked Cruz to move his truck for a work-related purpose — so Performance could pour cement. In Herron's view, the fact that Vogt had a work-related purpose is irrelevant. It argues that Cruz had the non-work-related purpose of preventing damage to his personal vehicle. At least for purposes of summary judgment, however, it is reasonably inferable that Cruz was, at a minimum, combining his personal business with that of his employer.
. . .
[B]y agreeing to move his truck, Cruz was furthering the interests of his employer, as well the interests of Vogt's employer. Nor are we in any way diminishing Herron's ability to control its employees. Herron could have told its employees that, if another subcontractor asked them to move their personal vehicles — even to facilitate construction — they were to contact a supervisor and ask permission first. But the very absurdity of such a requirement highlights the fact that it was in Herron's interest for its employees to cooperate voluntarily.

Alternatively, even if the evidence established that Cruz's sole subjective reason for moving the truck was to prevent damage to it, respondeat superior would still apply. “ ‘[T]he fact that an employee is not engaged in the ultimate object of his employment at the time of his wrongful act does not preclude attribution of liability to an employer.’"

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