Blackman v. Great American First Savings Bank

• Decision Date: 20 August 1991
• Docket Number: No. D012746,D012746
• Citation: 233 Cal.App.3d 598,284 Cal.Rptr. 491
• Court: California Court of Appeals Court of Appeals
• Parties: Kent Arthur BLACKMAN, Plaintiff and Appellant, v. GREAT AMERICAN FIRST SAVINGS BANK, Defendant and Respondent.

Page 491

284 Cal.Rptr. 491

233 Cal.App.3d 598

Kent Arthur BLACKMAN, Plaintiff and Appellant, v. GREAT AMERICAN FIRST SAVINGS BANK, Defendant and Respondent.

No. D012746.

Court of Appeal, Fourth District, Division 1, California.

Aug. 20, 1991.

Thorsnes, Bartolotta, McGuire & Padilla and R. Christian Hulburt, San Diego, for plaintiff and appellant.

Kinkle, Rodiger & Spriggs and Richard J. Messer, San Diego, for defendant and respondent.

WORK, Associate Justice.

Kent Blackman appeals a summary judgment granted in favor of Great American First Savings Bank (Great American), stating it was not vicariously liable for injuries Blackman incurred when he was involved in a collision with Sue Petersen-Parker (Petersen), a Great American employee. At the time of the collision, Petersen was leaving the Great American parking lot and intending to drive to San Diego State University. Petersen, a full-time Great American payroll accountant, was pursuing a Business Administration degree with emphasis in accounting under Great American's Educational Assistance Program, which provided her with financial aid. In return, Petersen signed a contract which stated she agreed to remain an employee of Great American for five years, or reimburse a portion of the tuition-related funds provided by her employer. Blackman contends the trial court erred in granting summary judgment for Great American. We disagree and accordingly affirm the judgment.

FACTUAL AND PROCEDURAL BACKGROUND

On December 7, 1988, Blackman was seriously injured when his motorcycle struck Petersen's car which had pulled into his path while attempting to make a left-hand turn. In an all too common motorcycle accident scenario, Blackman struck the side of Petersen's car, was thrown over the car and onto the asphalt, and came to rest beneath and against a parked car. At the time of the accident, Petersen had just completed her work shift and was on the way to San Diego State University. She was using her own car and Great American did not reimburse her for either travel time or mileage expenses.

Through the Educational Assistance Program, Great American agreed to reimburse Petersen for her tuition and book expenses for all relevant courses. The Educational Assistance Program was established by contract language which stated:

"WHEREAS, as a condition of continued, full-time employment at Great American, it is considered desirable by Bank that employees periodically avail themselves of opportunities to augment their educational background...."

Petersen signed this contract which also stated she would pursue a job-relevant degree, maintain passing grades in every class, take no more than two classes per semester, maintain a satisfactory performance rating at work, and remain an employee of Great American for at least five years or be forced to repay Great American's financial assistance.

Petersen was already pursuing her degree at San Diego State University before coming to work for Great American. She testified she would have continued to pursue this degree regardless of whether she received aid through the Educational Assistance Program. Following this accident, her participation in the Educational Assistance Program was renewed; she eventually graduated from college; and she was immediately promoted at Great American. Only one to two percent of all Great American employees ever take advantage of the Educational Assistance Program.

DISCUSSION

I

Under the doctrine of respondeat superior, an employer is liable for those torts committed by employees acting within the scope of their employment. (Felix v. Asai (1987) 192 Cal.App.3d 926, 931, 237 Cal.Rptr. 718.) The going-and-coming doctrine states an employee is outside the scope of his employment while engaged in the ordinary commute to and from his place of work. (Id. at p. 931, 237 Cal.Rptr. 718.) This rule is based on the principle that the employment relationship is suspended from the time the employee leaves his place of work until he returns. (Ibid.)

Generally, whether an employee is within the scope of employment is a question of fact; however, when the facts of a case are undisputed and conflicting inferences may not be drawn from those facts, whether an employee is acting within the scope of employment is a question of law. (Caldwell v. A.R.B., Inc. (1986) 176 Cal.App.3d 1028, 1035, 222 Cal.Rptr. 494.)

II

Exceptions are made to the going-and-coming rule when the employee's trip involves an incidental benefit to the employer, not common to commute trips by ordinary members of the work force. (Felix v. Asai, supra, 192 Cal.App.3d at p. 931, 237 Cal.Rptr. 718.)

The special errand doctrine is an exception to the going-and-coming rule which states an employee is within the scope of his employment while coming from home or returning to it while on a special errand either as part of his regular duties or at a specific order or request of his employer. (Id. at p. 931, 237 Cal.Rptr. 718.)

The trial court found Petersen's attendance of college classes was not a regular duty required of Great American employees; while this program was available and Great American may have encouraged qualified employees to participate, employees were under no specific order or direct request to do so; and thus, Petersen's attendance at college classes did not fall within the special errand exception to the going-and-coming rule.

Here, Blackman's contention that Petersen's college attendance constituted a special errand for Great American is without evidentiary support. Blackman contends participation in the Educational Assistance Program was a mandatory condition of employment. Blackman hinges his argument on the Educational Assistance Program contract language phrase "as a condition," which he asserts indicates a mandatory obligation on the part of the employee to pursue supplementary education. However, this phrase directly precedes the permissive clause, "it is considered desirable," which suggests no mandatory obligations were imposed. It is undisputed that, at most, only one to two percent of all Great American employees ever participate in the program. In addition, there is no requirement that one must enter the Educational Assistance Program, or to continue in it once entered, as a condition of employment. The uncontradicted parameters of the program are contained in Great American's guidelines entitled "Educational Assistance" dated February 10, 1989, a copy of which was incorporated into the materials presented to the trial court.

To be eligible for Great American's Educational Assistance Program, one must first be a full-time employee with either one-year longevity or officer status, and have received a "3" or better rating on his/her latest performance evaluation. To remain eligible for continued tuition aid, the employee must maintain a "C" average. There is no requirement an employee continue in the program to maintain employment or employment status. However, if the employee terminates full-time employment in less than five years after entering the Educational Assistance Program, he/she is obligated to repay an amortized portion of the tuition funds received in proportion to the five-year employment requirement.

Thus, it is undisputed that Petersen would suffer no penalty for discontinuing the program or leaving employment in less than five years. To...