Brittell v. Young

• Decision Date: 13 March 1979
• Citation: 153 Cal.Rptr. 387,90 Cal.App.3d 400
• Court: California Court of Appeals Court of Appeals
• Parties: Clifton James BRITTELL and Jeannie Brittell, Plaintiffs and Appellants, v. Beauford YOUNG et al., Defendants and Respondents, Pacific Employers Insurance Co., Plaintiff-in-Intervention and Appellant. Civ. 20078.

Page 387

153 Cal.Rptr. 387

90 Cal.App.3d 400

Clifton James BRITTELL and Jeannie Brittell, Plaintiffs and Appellants, v. Beauford YOUNG et al., Defendants and Respondents Pacific Employers Insurance Co., Plaintiff-in-Intervention and Appellant.

Civ. 20078.

Court of Appeal, Fourth District, Division 2, California.

March 13, 1979.

Hearing Denied May 30, 1979.

[90 Cal.App.3d 401] Dunbar & Taylor, Inc., and Douglas R. Taylor, Los Angeles, for plaintiffs and appellants.

Hagenbaugh & Murphy and Everett Hinchcliffe, Los Angeles, for plaintiff-in-intervention and appellant.

Pickell & Brown and Ned A. Kimball, Riverside, for defendants and respondents.

OPINION

TAMURA, Acting Presiding Justice.

This appeal involves the scope of immunity of an employee under Labor Code section 3601, which makes the right to recover workers' compensation for injury or death the exclusive remedy "against any other employee of the employer acting within the scope of his employment, . . ." Plaintiffs (husband and wife) sued husband's coemployee (defendant) and certain others for injuries sustained by the husband at his place of employment. The employer's workers' compensation carrier (Pacific Employers Insurance Co.) filed a complaint-in-intervention to recover workers' compensation benefits paid to husband. The trial court entered a summary judgment dismissing the action as to defendant. Plaintiffs and plaintiff-in-intervention appeal.

The pertinent facts are not in dispute. Plaintiff (husband) and defendant were employed by an automobile sales and service dealership, plaintiff as a line mechanic and defendant as the shop superintendent. On the day in question, the employer had scheduled a service department personnel meeting for 5 p. m. Shortly before 5 p. m., plaintiff was on his way from the wash room to his work area just as defendant was attempting to drive his personally owned van onto the lube hoist. The van went over the lube rack and struck plaintiff, pinning him against a work bench and causing him severe injuries. The employer had authorized defendant to use the shop equipment and facilities to service his own vehicle as part of his compensation.

The sole issue is whether under the foregoing facts, defendant was "acting within the scope of his employment" at the time of the accident and is, therefore, entitled to the immunity provided by section 3601. (Unless otherwise indicated, all statutory references are to the Labor Code. ¹)

The provision making the right to receive workers' compensation benefits the exclusive remedy for injury or death caused by a coemployee "acting within the scope of his employment" was added to section 3601 in 1959. ² Until that time, an employee's common law right to bring an action against a negligent coemployee was deemed to be preserved by section 3852. ³ (Singleton v. Bonnesen (1955) 131 Cal.App.2d 327, 329-330, 280 P.2d 481; see Lamoreux v. San Diego etc. Ry. Co. (1957) 48 Cal.2d 617, 625, 311 P.2d 1; Baugh v. Rogers (1944) 24 Cal.2d 200, 214, 148 P.2d 633.) The scope of an employee's immunity under the 1959 amendment to section 3601 has been considered in three cases: Saala v. McFarland, 63 Cal.2d 124, 45 Cal.Rptr. 144, 403 P.2d 400; McIvor v. Savage, 220 Cal.App.2d 128, 33 Cal.Rptr. 740; and Vellis v. Albertson, 267 Cal.App.2d 285, 72 Cal.Rptr. 841.

In Salla v. McFarland, supra, 63 Cal.2d 124, 45 Cal.Rptr. 144, 403 P.2d 400, an employee was injured in a parking lot provided by the employer for the use of its employees when she was struck by an automobile driven by a coemployee who was leaving for home at the end of the working day. After receiving workers' compensation benefits, the injured employee brought an action against the coemployee to recover damages for the injuries. The trial court granted a summary judgment for defendant but the Supreme Court reversed. The court rejected the argument that the 1959 amendment to section 3601 was intended to exempt employees from civil liability to the same extent as employers. It interpreted the phrase "scope of employment" in section 3601 as expressing a more restrictive concept than the phrase "aris(ing) out of and in the course of the employment," the condition for entitlement to workers' compensation benefits. The court held that since defendant failed to show that she was still serving her employer at the time of the accident, she was not acting within the scope of her employment and hence not exempt from civil liability to plaintiff. The court quoted with approval the admonition in an Industrial Accident Commission decision that the words "acting within the scope of his employment" in section 3601 should be construed " 'so as not to extend the immunity beyond Respondeat superior situations.' " (Saala v. McFarland, supra, 63 Cal.2d 124, 130, 45 Cal.Rptr. 144, 148, 403 P.2d 400, 404, quoting Motal v. Industrial Acc. Com., 29 Cal.Comp.Cases 224, 225.)

Saala relied in part on McIvor v. Savage, supra, 220 Cal.App.2d 128, 33 Cal.Rptr. 740, where the court came to the same conclusion as the Saala court under basically the same factual circumstances. As in Saala, an employee was injured in an automobile accident between coemployees in a company parking lot at the end of the working day. The McIvor court held that section 3601 did not preclude an action by an employee against a coemployee merely because the injuries were compensable under the Workers' Compensation Law. It held that the fact that the injury arose out of and in the course of employment did not per se establish that the injury was caused by an employee acting within the scope of his employment. (Id., at pp. 139-140, 33 Cal.Rptr. 740.)

The third case involving an employee's immunity under section 3601 is Vellis v. Albertson, supra, 267 Cal.App.2d 285, 72 Cal.Rptr. 841. This was a wrongful death action for the death of a farm worker who suffered fatal injuries when he fell from a tractor used by defendant, a coemployee of decedent, to haul apricots from the field to a central point on the ranch. At about 5 p. m. decedent asked defendant for a ride to the corner of the property and got on the tractor. After unloading the boxes of apricots, defendant started towards the property line; decedent fell from the tractor and was run over by the wheels. The trial court granted defendant's motion for summary judgment and the judgment was affirmed on appeal. The court first held that Saala and McIvor were factually distinguishable. The court then observed that absent evidence of a company rule or statute to the contrary, it could be reasonably inferred that defendant was authorized to give a coemployee a ride and that doing so benefited the employer because it promoted harmonious employer-employee relationships. Accordingly, the court concluded that giving decedent a ride was incidental to defendant's duties and was, therefore, within the scope of his employment.

In reaching its conclusion, the Vellis court observed that section 3601 as amended "is a recognition that industrial accidents are a matter of enterprise liability" and stated: "This section eliminates the former rights of an employer for subrogation against a negligent employee causing injuries. It also eliminates actions by the employee against a co-employee except in the specific instances provided in section 3601(, subdivision) (a)(1)(2)(3). Exceptions to the plain wording of the statute should clearly be indicated in either the pleadings or declarations. To rule otherwise would place the risk of loss on fellow employees contrary to the intent of the statute." (Vellis v. Albertson, supra, 267 Cal.App.2d 285, 291, 72 Cal.Rptr. 841, 846.)

The case at bench does not fit into the factual mold of any of the three cases reviewed above. The nexus between the injury and the employment is closer than in Saala and McIvor but the benefit to the employer from the conduct resulting in the injury is more attenuated than in Vellis. Therefore, in order to decide whether this case meets the Respondeat superior test for an employee's immunity under section 3601, as Saala requires us to do, ⁴ it is necessary that we review the rationale for the doctrine of Respondeat superior as developed and applied in this state.

Recently in Rodgers v. Kemper Constr. Co., 50 Cal.App.3d 608, 124 Cal.Rptr. 143, we had occasion to review the modern rationale for the doctrine of Respondeat superior. We there said:

"Under Respondeat superior, an employer is vicariously liable for the torts of his employees committed within the scope of the employment.2 The doctrine, which de--

2 In California the doctrine is codified in Civil Code section 2338 which provides: 'Unless required by or under the authority of law to employ that particular agent, a principal is responsible to third persons for the negligence of his agent in the transaction of the business of the agency, including wrongful acts committed by such agent in and as a part of the transaction of such business, and for his willful omission to fulfill the obligations of the principal.'

parts from the normal tort principle that liability follows fault, is an ancient one but its scope and stated rationale have varied widely from period to period. (See 2 Harper & James, The Law of Torts, pp. 1361-1374; Prosser, Torts (4th ed., 1971) pp. 458-459.) It has been aptly stated that 'Respondeat superior has long been a rule in search of a guiding rationale.' (Note, 82 Harv.L.Rev. 1568, 1569.)

"California has adopted the rationale that the employer's liability should extend beyond his actual or possible control over the employees to include risks inherent in or created by the enterprise because he, rather than the innocent injured party, is best able to spread the risk through prices, rates or liability insurance. (Hinman v. Westinghouse Elec. Co., 2 Cal.3d 956, 959-960, 88 Cal.Rptr. 188, 471 P.2d 988; Johnston v. Long, 30 Cal.2d 54, 63-64, 181 P.2d 645; Fields v. Sanders, 29 Cal.2d 834, 841, 180 P.2d 684; ...