Baptist v. Robinson

• Decision Date: 21 September 2006
• Docket Number: No. H029233.,H029233.
• Citation: 143 Cal.App.4th 151,49 Cal.Rptr.3d 153
• Court: California Court of Appeals Court of Appeals
• Parties: Ronald A. BAPTIST, et al., Plaintiffs and Appellants, v. Thomas ROBINSON, Jr., Defendant, Cross-Complainant and Appellant. Thomas Fogarty Winery, LLC., Defendant, Cross-Defendant and Respondent.

49 Cal.Rptr.3d 153

143 Cal.App.4th 151

Ronald A. BAPTIST, et al., Plaintiffs and Appellants, v. Thomas ROBINSON, Jr., Defendant, Cross-Complainant and Appellant Thomas Fogarty Winery, LLC., Defendant, Cross-Defendant and Respondent.

No. H029233.

Court of Appeal, Sixth District.

September 21, 2006.

Paul B. Kemp, Esq., Law Office of Paul B. Kemp, for Appellant Ronald A. Baptist, et al.

Robert M. Gerhardt, Esq., Benjamin A. Emmert, Esq., Ericksen, Arbuthnot, Kilduff, Day & Lindstrom, Inc., San Jose, for Defendant, Cross-Complainant and Appellant Thomas Robinson, Jr.

Cheryl L. Ferguson, Glaspy & Glaspy, Inc., for Respondent Thomas Fogarty Winery, LLC.

BAMATTRE-MANOUKIAN, Acting P.J.

Just before dawn on October 23, 2003, plaintiff Ronald Baptist was riding his motorcycle on Highway 85 when he struck a large plastic agricultural bin that had fallen from a pickup truck. He sustained serious injuries. The pickup truck was owned and driven by defendant Thomas Robinson, who was employed by defendant Thomas Fogarty Winery, LLC (the Winery). The bin belonged to the Winery. In the ensuing personal injury action, Baptist alleged negligence against Robinson and further alleged that the Winery was both vicariously and directly liable for his injuries. Robinson filed a cross-complaint against the Winery for indemnity and contribution.

The Winery filed a motion for summary judgment on the ground that it could not be vicariously liable for its employee's allegedly negligent conduct because Robinson was not acting within the course and scope of his employment at the time of the accident. Instead, he was on an errand on his own time that was solely for his own benefit, namely picking up grapes to make wine for himself. The Winery also argued that there were no facts showing it was directly negligent. The court granted the motion and entered judgment in favor of the Winery. Baptist and Robinson appeal.

Appellants argue that there were triable issues of fact as to 1) whether Robinson's conduct at the time of the accident was foreseeable in light of his employment responsibilities, in that he was engaged in an activity authorized by the Winery that was reasonably related to his employment and benefited his employer; 2) whether the Winery subsequently ratified Robinson's misconduct; and 3) whether the Winery was negligent in failing to instruct its employees in how to safely secure bins in an open truck and in failing to prevent its employees from making their own private stocks of wine on the Winery premises. After conducting independent review of the record, we find as a matter of law that Robinson was not acting within the course and scope of his employment at the time of the accident. We find further that there were no triable issues of material fact as to the Winery's direct negligence. Accordingly, we affirm the judgment in favor of the Winery.

BACKGROUND FACTS

Robinson was hired by the Winery in 1998. As part of his employment compensation, he lived in a home on the Winery property in Los Gatos. In 2003, at the time of the accident, Robinson was assistant winemaker and cellar master. His immediate supervisor, Michael Martella, was the head winemaker at the Winery. Dr. Thomas Fogarty is a principal of Thomas Fogarty Winery, LLC. He spent approximately eight hours per week at the Winery. Scott Adams was the general manager of the Winery at the time of the accident, but he did not have his office on the Winery property. The day-to-day winemaking activities at the Winery were the responsibility of Martella.

Martella and Dr. Fogarty had an oral agreement that Martella could make up to 1200 cases of his own label of wine using the facilities at the Winery. The Winery wrote off the costs associated with this in lieu of an annual bonus to Martella. Several years after he started work at the Winery, Robinson told Martella that he was interested in making his own wine. Martella encouraged him to make his own wine. Robinson started making small amounts of his own wine at the Winery. He bought his own grapes, used some of the Winery's equipment to process the wine, and bottled the wine at home in his own bottles. In 2000 he made one barrel of wine. In 2001 and 2002, he made two barrels. He did not sell his wine, but instead gave it away to family and friends.

In 2003, Robinson intended to make a slightly larger quantity of his own wine on the Winery premises. He talked with Martella about this and Martella told him that it would be okay. Martella then mentioned it to Adams in May or June of 2003, and told Adams that Robinson already had a few barrels of his own wine on the property from 2002. Adams told Martella that he wanted the barrels removed from the property and wanted Robinson to discontinue using the Winery facilities to make his own personal wine. Adams also discussed the matter with Dr. Fogarty, who agreed that Robinson should not be allowed to make his personal wine on the Winery premises. Martella decided to wait until after the fall harvest of 2003 was complete to tell Robinson he would have to stop making his wine on the Winery premises.

Robinson learned of some Syrah grapes for sale at a vineyard in Gilroy called Coyote Springs Vineyard. He arranged to purchase some of those grapes for his own use. The Winery did not make this type of wine. On the evening of October 22, 2003, after work, Robinson borrowed a T-bin from the supply of bins at the Winery facility, put it in his pickup truck and drove home. T-bins are large agricultural bins that are used on the Winery premises for holding crushed grapes during the fermentation process. They were not intended to be taken off of the property to be used for transporting harvested grapes. Robinson did not ask anyone's permission to use the T-bin and no one saw him put it in his truck. He had never before used a T-bin to transport grapes for his own personal stock of wine.

Robinson got up at 5:00 a.m. the next morning, wedged the T-bin in the back of his truck between the wheel wells and secured it with a bungee cord. He then set out for the Coyote Springs Vineyard. He was traveling south on Highway 85 at approximately 5:30 a.m. when he noticed in his rear view mirror that the T-bin was no longer in the truck. He got off the freeway and doubled back to look for the T-bin. He saw signs that there had been an accident where he thought the bin might have fallen. Emergency vehicles had arrived.¹ He contacted law enforcement and told them that he had lost a bin from the back of his truck. After being interviewed by the police, he proceeded on to Gilroy, loaded the grapes directly into the bed of his truck, and got back to the Winery to start work by 9:30 a.m. He did not tell Martella or anyone else at the Winery about the accident. He did not think it concerned the Winery because he had been picking up grapes for his own use.

Martella noticed that Robinson had purchased some grapes from the Coyote Springs Vineyard. He thought they looked like good grapes and he decided to purchase some for his own stock. Martella picked up some Syrah grapes from Coyote Springs for his personal wine in a Winery truck. He used the Winery's picking bins rather than T-bins for this. Martella also picked up a load of crushed Syrah grapes for Robinson from the Savannah-Chanelle Vineyard in Santa Cruz. This was after the accident but before Martella knew about it. When he got the grapes for Robinson, Martella used his own truck and loaded the crushed grapes into two T-bins in the back of his truck. He secured the T-bins with straps and winches.

In November of 2003, about a month after the accident, Martella learned of the accident when a letter arrived at the winery from the Baptists' attorney. Martella talked to Robinson about it. And he also told Robinson at that time that he had to stop making his own wine at the Winery and that he should remove the barrels of wine that were his.

PROCEDURAL BACKGROUND

Baptist and his wife Irene Baptist filed a complaint for personal injury against Robinson on January 22, 2004. A first amended complaint was filed on July 8, 2004, which named Thomas Fogarty Winery, LLC, as an additional defendant, as well as Macro Plastics, Inc., the maker of the T-bin. The first amended complaint contained causes of action for motor vehicle negligence, general negligence, products liability and loss of consortium. As against the Winery, plaintiffs alleged that the Winery was Robinson's employer and that Robinson was operating the vehicle in the course of his employment at the time of the accident. Plaintiffs further alleged that the T-bin belonged to the Winery and that the Winery was negligent in failing to instruct its employees on the safe means of transporting T-bins. Robinson filed a cross-complaint for indemnity and contribution against the Winery on December 4, 2004.

The Winery filed its motion for summary judgment on February 28, 2005, on grounds that it could not be held vicariously liable because Robinson was not acting within the scope of his employment at the time of the accident, and that the T-bin involved in the accident had been taken and used without the employer's knowledge or consent. Robinson also filed a summary judgment motion, on March 10 2005, on the ground that, when the accident occurred, he was engaging in conduct reasonably related to his employment and was acting within the course and scope of his employment.

The two motions were heard on May 24, 2005. The court granted the Winery's motion and denied Robinson's motion and judgment was entered in favor of the Winery.

STANDARD OF REVIEW

"The purpose of the law of summary judgment is to provide courts with a mechanism to cut through the parties' pleadings in order to determine whether, despite their allegations, trial is in fact necessary to resolve their dispute." (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 843, 107 Cal.Rptr.2d 841, 24 P.3d 493 (Aguilar).) A defendant is...