Childers v. Shasta Livestock Auction Yard, Inc.

• Decision Date: 25 March 1987
• Citation: 235 Cal.Rptr. 641,190 Cal.App.3d 792
• Court: California Court of Appeals
• Parties: Mike CHILDERS, Plaintiff, Cross-Defendant and Appellant, v. SHASTA LIVESTOCK AUCTION YARD, INC., Defendant, Cross-Complainant and Respondent. Civ. C000474.

Page 641

235 Cal.Rptr. 641

190 Cal.App.3d 792

Mike CHILDERS, Plaintiff, Cross-Defendant and Appellant, v. SHASTA LIVESTOCK AUCTION YARD, INC., Defendant, Cross-Complainant and Respondent.

Civ. C000474.

Court of Appeal, Third District, California.

March 25, 1987.

T. James Fisher and Fisher & Wyatt for plaintiff, cross-defendant and appellant.

Matthew J. McAlerney and Weintraub, Genshlea, Hardy, Erich & Brown for defendant, cross-complainant and respondent.

SIMS, Associate Justice.

In this case, we consider whether an employee can sue his employer in tort on a theory of respondeat superior for injuries caused by another employee's consumption of alcoholic beverages in the scope of her employment. We conclude that where an employee consumes alcohol in the scope of his or her employment, the employer is liable for injuries proximately caused to members of the public by the consumption of alcohol. Neither Civil Code section 1714 nor Business and Professions Code section 25602 immunizes the employer from respondeat superior liability. However, we also conclude the present tort action is barred by the exclusive remedy provisions of the Workers' Compensation Act. (Lab.Code §§ 3600-3602; all further nondescript statutory references are to the Labor Code.)

PROCEDURAL HISTORY AND FACTS

Plaintiff Mike Childers appeals from a summary judgment granted his employer defendant Shasta Livestock Auction Yard (Shasta) in plaintiff's action for personal injuries. Plaintiff seeks damages from Shasta on the theory of respondeat superior, asserting Shasta is vicariously liable for the torts of another employee, Toni JoAnn Abbott. The trial court entered summary judgment in favor of Shasta. Plaintiff contends there are triable issues of material fact with respect to whether Abbott was acting within the scope of her employment so as to make Shasta vicariously liable for her torts. Plaintiff also asserts his cause of action is not barred by the Workers' Compensation Act.

With immaterial exceptions the facts are undisputed.

On Friday, September 7, 1984, plaintiff, Vern Smith, and Toni JoAnn Abbott were employees of Shasta working at the auction yard. John Suther, Shasta's yard foreman, was to be married the next day. After work at about 6 p.m. on September 7, Suther, who was on his way to his wedding rehearsal, took plaintiff and Smith from the auction yard to his house, where he gave Smith a set of keys to the yard premises, so plaintiff and Smith could be in charge of the yard the next day. Suther also told plaintiff and Smith, "Go have a beer." Plaintiff and Smith knew Suther intended they get the beer from Shasta's office.

Plaintiff and Smith returned to the auction yard and went with another employee to the office where liquor was kept. They got some six packs of beer from the office and went outside where they met Toni Abbott who was off work. Abbott took some beer from the six packs and began drinking. Later, plaintiff, Abbott and Smith went into the office and began drinking Shasta's hard liquor with one of Shasta's customers, Mike Roston.

At about 10 p.m., plaintiff, Smith and Abbott left the auction yard in Abbott's truck to go feed Abbott's horses. Abbott drove the truck off the road; she was killed and plaintiff was injured.

It was a regular practice for Shasta to furnish alcoholic beverages on the premises to customers of the auction yard. Most of Shasta's employees had consumed alcoholic beverages in the office where they were kept, particularly on Friday nights. During the year before the accident, Toni Abbott had drunk alcoholic beverages furnished by the auction yard on the premises on at least 10 occasions with the knowledge, permission and participation of Shasta management.

DISCUSSION

I

Defendant has failed to show it is not liable for Toni Abbott's negligence on a theory of respondeat superior unless plaintiff's exclusive remedy is under the workers' compensation laws.

Plaintiff first contends the evidence was sufficient to survive summary judgment on the question whether Shasta is liable for Toni Abbott's negligence.

Our review of the summary judgment is governed by rules recently summarized by our Supreme Court in Mann v. Cracchiolo (1985) 38 Cal.3d 18, 210 Cal.Rptr. 762, 694 P.2d 1134: "The summary judgment procedure, inasmuch as it denies the right of the adverse party to a trial, is drastic and should be used with caution. [Citation.] Summary judgment is properly granted only when the evidence in support of the moving party establishes that there is no issue of fact to be tried. [Citations.] [p] 'The moving party bears the burden of furnishing supporting documents that establish that the claims of the adverse party are entirely without merit on any legal theory.' [Citation.] 'The affidavits of the moving party are strictly construed and those of his opponent liberally construed, and doubts as to the propriety of summary judgment should be resolved against granting the motion.' [Citation.] '... [I]ssue finding rather than issue determination is the pivot upon which the summary judgment law turns.' [Citation.]" (Pp. 35-36, 210 Cal.Rptr. 762, 694 P.2d 1134.)

A. Toni Abbott was within the scope of her employment at the time of the accident.

Here, plaintiff has expressly disavowed reliance on a theory that Shasta was liable to him because it negligently furnished alcohol to Toni Abbott. Plaintiff's sole claim is that Shasta is liable to him for Abbott's negligence on the theory of respondeat superior. Putting aside for the moment the question whether plaintiff has an exclusive remedy under the workers' compensation laws, we agree with plaintiff.

An employer's liability without fault for the acts of his employees is imposed by Civil Code section 2338, which provides in relevant part that "a principal is responsible to third parties 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, ..." This statute has long been held to reflect the common law doctrine of respondeat superior. (Bank of California v. Western Union Tel. Co. (1877) 52 Cal. 280, 287-289.)

In Perez v. Van Groningen & Sons, Inc. (1986) 41 Cal.3d 962, 227 Cal.Rptr. 106, 719 P.2d 676, our Supreme Court recently discussed the underpinnings of the respondeat superior doctrine as follows: "Under the doctrine of respondeat superior, an employer is vicariously liable for his employee's torts committed within the scope of the employment. This doctrine is based on ' "a rule of policy, a deliberate allocation of a risk. The losses caused by the torts of employees, which as a practical matter are sure to occur in the conduct of the employer's enterprise, are placed upon that enterprise itself, as a required cost of doing business." ' (Hinman v. Westinghouse Elec. Co. (1970) 2 Cal.3d 956, 959-960 [88 Cal.Rptr. 188, 471 P.2d 988], quoting Prosser, Law of Torts (3d ed. 1964) p. 471.) Three reasons have been suggested for imposing liability on an enterprise for the risks incident to the enterprise: '(1) [I]t tends to provide a spur toward accident prevention; (2) it tends to provide greater assurance of compensation for accident victims, and (3) at the same time it tends to provide reasonable assurance that, like other costs, accident losses will be broadly and equitably distributed among the beneficiaries of the enterprises that entail them.' (5 Harper, James & Gray, The Law of Torts (2d ed. 1986) § 26.5, p. 21, fns. omitted; see also Johnston v. Long (1947) 30 Cal.2d 54, 64 [181 P.2d 645] ['The principal justification for the application of the doctrine of respondeat superior in any case is the fact that the employer may spread the risk through insurance and carry the cost thereof as part of his costs of doing business.'].)

"In some respects, the rationale underlying respondeat superior is similar to that underlying the Workers' Compensation Act. Both fields of law allow recovery for the injured party irrespective of proof of the employer's fault. Both are concerned with the allocation of the cost of industrial injury. (Hinman, supra, 2 Cal.3d at p. 962, fn. 3 [88 Cal.Rptr. 188, 471 P.2d 988] ) 'The proper test [for respondeat superior] bears far more resemblance to that which limits liability for worker's compensation than to the test for negligence. The employer should be held to expect risks, to the public also, which arise "out of and in the course of" his employment of labor.' (5 Harper, James & Gray, supra, § 26.7, pp. 28-31.) Thus, under California law, an employer is liable for risks 'arising out of the employment.' (George v. Bekins Van & Storage Co. (1949) 33 Cal.2d 834, 843 [205 P.2d 1037]; Carr v. Wm. C. Crowell Co. (1946) 28 Cal.2d 652, 657 [171 P.2d 5].)

"A risk arises out of the employment when 'in the context of the particular enterprise an employee's conduct is not so unusual or startling that it would seem unfair to include the loss resulting from it among other costs of the employer's business. [Citations.] In other words, where the question is one of vicarious liability, the inquiry should be whether the risk was one "that may fairly be regarded as typical of or broadly incidental" to the enterprise undertaken by the employer. [Citation.]' (Rodgers v. Kemper Constr. Co. (1975) 50 Cal.App.3d 608, 619 [124 Cal.Rptr. 143].) Accordingly, the employer's liability extends beyond his actual or possible control of the employee to include risks inherent in or created by the enterprise. (Hinman, supra, 2 Cal.3d at p. 960 [88 Cal.Rptr. 188, 471 P.2d 988].)" (Id., at pp. 967-968, 227 Cal.Rptr. 106, 719 P.2d 676; see also Mesler v. Bragg Management Co. (1985) 39 Cal.3d 290, 302, 216 Cal.Rptr. 443, 702 P.2d 601.)

But how is it determined that an employee's tortious act is a risk "aris[ing] out of the employment" or "inherent in or created by the enterprise"? (Ibid.)

Whether the risk of an employee's...