Bingener v. City of L. A.

• Decision Date: 16 December 2019
• Docket Number: B291112
• Citation: 257 Cal.Rptr.3d 166,44 Cal.App.5th 134
• Court: California Court of Appeals Court of Appeals
• Parties: Mark BINGENER et al., Plaintiffs and Appellants, v. CITY OF LOS ANGELES et al., Defendants and Respondents.

44 Cal.App.5th 134

257 Cal.Rptr.3d 166

Mark BINGENER et al., Plaintiffs and Appellants,

v.CITY OF LOS ANGELES et al., Defendants and Respondents.

B291112

Court of Appeal, Second District, Division 3, California.

Filed December 16, 2019

Mardirossian & Associates, Garo Mardirossian, Armen Akaragian, Adam Feit, Los Angeles, for Plaintiffs and Appellants.

Michael N. Feuer, City Attorney, Blithe S. Bock, Assistant City Attorney, Hall R. Marston and Jonathan H. Eisenman, Deputy City Attorneys, for Defendant and Respondent.

JONES, J.^*

INTRODUCTION

Mark and Eric Bingener appeal the trial court’s grant of the City of Los Angeles’s (City) motion for summary judgment. The City argued that it was not liable for the injuries caused by Kim Rushton because he was not acting within the course of his employment at the time of the accident. Specifically, the City argued that the coming and going rule insulated it from liability.

It is undisputed that on February 24, 2015, an employee of the City, Rushton, struck and killed pedestrian Ralph Bingener. It is also undisputed that when the accident occurred, Rushton was commuting to work in his own car and on his usual morning route and was not performing work for the City while driving to work. The parties also agree that, on the day of the accident, Rushton was driving to his workplace at the Hyperion Treatment Plant, where he worked in a water quality lab checking water for semi-volatile organic compounds. A self-described "lab rat," Rushton’s job did not require him to be in the field or use his personal automobile for his employment. The City moved for summary judgment on these uncontroverted facts, arguing that because the "going and coming rule" applied, without exception, to this case, the City was not liable under respondeat superior for the accident.

Plaintiffs countered that there was a dispute of fact regarding an exception to the going and coming rule–the "work- spawned risk" exception. This exception applies when an employee endangers other with a risk arising from or related to work. For example, where an employee gets into a car accident on the way home after drinking alcohol at work with his supervisor’s permission, courts have carved out an exception to the going and coming rule. Where, as in such a case, there is a sufficient link between the drinking and the accidents as to make the collisions neither starling nor unusual, the courts have found that the risk was one that may be regarded as typical of or broadly incidental to the employer’s enterprise. ( Childers v. Shasta Livestock Auction Yard, Inc. (1987) 190 Cal.App.3d 792, 235 Cal.Rptr. 641 ; see Bussard v. Minimed, Inc. (2003) 105 Cal.App.4th 798, 803, 807, 129 Cal.Rptr.2d 675 ( Bussard ) [employee’s exposure to pesticides during work hours impaired her ability to safely drive home and, therefore, the going and coming rule did not apply].)

Applying this exception to the facts here, plaintiffs argued that the City knew about Rushton’s health conditions and how it might impair his ability to drive because certain medical expenses were being paid for Rushton’s back injury through the City’s worker compensation program. According to plaintiffs, Rushton’s then-present injuries and medications rendered him unfit to drive. Despite this knowledge, the City allowed Rushton to return to work prematurely without placing any restrictions on his driving. Given that Rushton was impaired and unfit to drive, his driving to work was a foreseeable risk of the City’s activities. The City, should, therefore, be held liable for "a negligently created work-spawned risk endangering the public."

We affirm the judgment. At summary judgment, plaintiffs failed to adduce sufficient facts upon which they could establish a triable issue of fact on their claim that Rushton’s accident was a foreseeable event arising from or relating to his employment for the City at its water plant laboratory. Nothing about the enterprise for which the City employed Rushton made his hitting a pedestrian while commuting a foreseeable risk of this enterprise. The "going and coming rule" was created for precisely the situation presented here and its application in this case precludes plaintiffs’ claim of vicarious liability against the City.

BACKGROUND FACTS

The parties do not dispute the essential facts in this case. All agree that Rushton was employed as a chemist at the Hyperion Treatment Plant for over twenty years. Rushton performed his analysis of water samples only at the lab and rarely left the plant on work-related travel. Rushton’s job did not require him to work in the field and his employer did not require him to use his car at work. Rushton was not compensated for his commute time.

At the time of the accident, Rushton was 68 years old and receiving treatment for chronic health problems, including neuropathy

in his feet, a tremor and occasional seizures, which caused him to have a few seconds of a déjà vu feeling and a "kick in the pit of my stomach." These conditions, including his seizure condition, were well controlled and Rushton testified at his deposition that "[his neurologic condition was] the best I’ve ever been right now." Rushton used a walking stick at the workplace and took various medications.¹

Rushton testified that none of these conditions or medications interfered with his ability to operate a vehicle. Rushton also stated that his health conditions did not contribute to the accident in any way. Rushton testified that he felt great on the morning of the accident and hadn’t taken any medications.²

In December 2014, Rushton had a fall at work when he bent over while carrying paperwork. Rushton was out of work due to that injury until the week of February 2, 2015. Rushton was diagnosed with lower back strain and was prescribed medication. Rushton’s physicians cleared him to return to work on February 2, 2015 with restrictions on standing and/or walking for more than four hours a day, and stooping, bending, kneeling and squatting. The doctors placed no restriction on Rushton driving. On February 20, 2015, Rushton received an epidural injection

of steroids to relieve his back pain.

On the day of the accident, Rushton awoke feeling fine. He had not ingested alcohol the evening before and was not under the influence of any drugs or medications at the time of the accident.

As he was driving through dark streets in Culver City going about 40 to 50 mph, he struck Ralph Bingener, a pedestrian.³ Rushton testified that he had no warning before striking Bingener, who was stepping off the curb into a crosswalk. After hitting Bingener, Rushton was in shock. Rushton stopped his car and went to attend Bingener. Moments later a number of nurses pulled up to the scene and started emergency treatment. The police and paramedics arrived shortly thereafter, and later Rushton went with the police to the station. Rushton did not appear to the officers to be under the influence of any alcohol or drug at the time of the accident and, when PAS tested, Rushton had no alcohol in his system. Officers at the scene described Rushton as fully cooperative. Rushton was not charged criminally as a result of the accident. Later investigation disclosed that the streetlight on the corner that Bingener stepped off from was inoperable.

The Department of Motor Vehicles later suspended Rushton’s driver’s license. At that point in time, Rushton was not driving his car. Rushton later had his driving privileges reinstated and the City returned his parking pass to him.

Ralph Bingener’s surviving brothers filed a timely Government Claims Act claim against the City, then filed a complaint alleging that the City was vicariously liable for Rushton’s negligence in the collision.⁴ The City moved for summary judgment based on the going and coming rule.⁵ The trial court agreed that the rule applied to Rushton, who was engaged in his regular commute at the time of the accident. The trial court entered judgment against the Bingeners on April 18, 2018.⁶

The Bingeners timely appealed.

DISCUSSION

I. Standard of Review

On appeal from the grant of summary judgment, we review the record de novo and apply the same standard as did the trial court. We identify the issues framed by the pleadings and then determine whether " ‘ "the moving party’s showing has established facts which justify a judgment in moving party’s favor" ’ " on those issues. ( Stokes v. Baker (2019) 35 Cal.App.5th 946, 956, 248 Cal.Rptr.3d 174.) If the moving party has made that showing, we then determine whether the opposition has demonstrated " ‘ "the existence of a triable, material factual issue." ’ " ( Ibid . ) In making that determination, we keep in mind that the party opposing the motion is entitled to have any reasonable inferences from the facts drawn in its favor. ( American Alternative Ins. Corp. v. Superior Court (2006) 135 Cal.App.4th 1239, 1245, 37 Cal.Rptr.3d 918.)

II. The City is not vicariously liable.

Under the doctrine of respondeat superior, an employer is liable for the torts of its employees committed within the scope of their employment. ( Ducey v. Argo Sales Co. (1979) 25 Cal.3d 707, 721, 159 Cal.Rptr. 835, 602 P.2d 755.) The burden of proof is on the plaintiff to demonstrate that the negligent act was committed within the scope of employment. ( Ibid. ) But where, as here, the facts relating to the applicability of the doctrine are undisputed, the question of its application is one of law. ( Hinman v. Westinghouse Elec. Co. (1970) 2 Cal.3d 956, 962, 88 Cal.Rptr. 188, 471 P.2d 988 ; Jeewarat v. Warner Bros. Entertainment Inc . (2009) 177 Cal.App.4th 427, 434, 98 Cal.Rptr.3d 837.)

The doctrine is based upon a policy that the employer should be responsible for losses caused by the torts of its employees that occur in the conduct of the employer’s enterprise. ( Depew v. Crocodile Enterprises, Inc. (1998) 63 Cal.App.4th 480, 486, 73 Cal.Rptr.2d 673.) An employee is generally not considered to be acting within the scope...