Depew v. Crocodile Enterprises, Inc.

• Decision Date: 22 April 1998
• Docket Number: No. B109565,B109565
• Citation: 63 Cal.App.4th 480,73 Cal.Rptr.2d 673
• Court: California Court of Appeals Court of Appeals
• Parties: , 63 Cal. Comp. Cases 385, 98 Cal. Daily Op. Serv. 3061, 98 Daily Journal D.A.R. 4202 Lucy L. DEPEW et al., Plaintiffs and Appellants, v. CROCODILE ENTERPRISES, INC., Defendant and Respondent.

Page 673

73 Cal.Rptr.2d 673

63 Cal.App.4th 480, 63 Cal. Comp. Cases 385,

98 Cal. Daily Op. Serv. 3061,

98 Daily Journal D.A.R. 4202

Lucy L. DEPEW et al., Plaintiffs and Appellants, v. CROCODILE ENTERPRISES, INC., Defendant and Respondent.

No. B109565.

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

April 22, 1998.

[63 Cal.App.4th 483] Julius S. Grush, Los Angeles, for Plaintiffs and Appellants.

Early, Maslach, Price & Baukol, Kemp Richardson, Glendale, Greines, Martin, Stein & Richland, Irving H. Greines, Feris M. Greenberger and Jennifer L. King, Beverly Hills, for Defendant and Respondent.

MASTERSON, Associate Justice.

While driving home from work, one of defendant's employees fell asleep and rear-ended another vehicle, killing its driver. The heirs of the deceased driver brought this action against the employer, alleging that it had acted negligently by subjecting the employee to excessive work hours and then allowing him to drive home in a state of exhaustion. The trial court granted summary judgment for the employer. We affirm on the ground that the employer's conduct did not proximately cause the accident.

BACKGROUND

In May 1994, Jeffery Stivers worked as a general manager at the Crocodile Cafe in Brea, California. On Sunday, May 15, 1994, at 1 a.m., Stivers was driving westbound on the Simi Valley Freeway near Haskell Avenue when he rear-ended a vehicle driven by Diane Depew. Depew died from the injuries she sustained in the accident.

According to the police report, Stivers told the investigating officer that he had fallen asleep at the wheel after having worked a double shift on Friday, May 13, 1994, and a night shift on Saturday, May 14, 1994. As stated in the report: "Mr. Stivers ... related to me at the scene, he was driving ... W/B SR-118 at 55-60 mph. He was unsure of which lane he was in. He had entered the W/B SR-118 from the I-210, and had been on his way home from work in Orange County. He had worked a double shift the day before and had just finished a regular work shift. He was very tired and caught himself dozing a couple of times. He thought he dozed off again, and when he looked up he saw [Depew's vehicle] stopping in front of him. He did not have time to avoid striking [her car] and spun out after the impact. He stated several times 'I just fell asleep.' "

In May 1995, Depew's surviving heirs (her parents and son) filed this action against Stivers, Crocodile Enterprises, Inc. (the owner of the Crocodile Cafe), and the State of California. In September 1995, plaintiffs filed a first amended complaint. The amended pleading contained three causes of action. The first cause of action, for wrongful death, alleged that the State of California had failed to maintain and repair the Simi Valley Freeway, thereby creating a dangerous condition for motorists. The second cause of action, against Stivers, alleged that he had operated his vehicle in a negligent manner. The third cause of action, against Crocodile, alleged that the restaurant had required Stivers to work excessive hours and then allowed him to drive home in an exhausted condition, knowing that his commute exceeded 30 miles. Plaintiffs further alleged that Crocodile knew that employees who work overtime are more likely to become drowsy, fall asleep while driving home, and cause accidents. By requiring managers to work double shifts, Crocodile allegedly acted with reckless disregard for the welfare of other motorists on the highway. Crocodile was also faulted for not Crocodile filed an answer to the complaint. Discovery followed. Plaintiffs served Stivers with a deposition subpoena and obtained a court order compelling his attendance at the deposition. On November 18, 1996, Stivers appeared for his deposition. He refused to answer any questions, invoking his Fifth Amendment right against self-incrimination. ¹

providing sleeping accommodations for employees who work double shifts.

After Stivers's deposition, Crocodile moved for summary judgment on the grounds that it had not breached a duty of care to Depew and that its conduct or omissions had not caused Depew's injuries. The trial court granted the motion. Judgment was entered on April 21, 1997. Plaintiffs appeal from the judgment. ²

DISCUSSION

Summary judgment is appropriate if all the papers submitted show that there is no triable issue as to any material fact and that the moving party is entitled to judgment as a matter of law. (Code Civ. Proc., § 437c, subd. (c).)

" 'A defendant seeking summary judgment has met the burden of showing that a cause of action has no merit if that party has shown that one or more elements of the cause of action cannot be established [or that there is a complete defense to that cause of action].... Once the defendant's burden is met, the burden shifts to the plaintiff to show that a triable issue of fact exists as to that cause of action.... In reviewing the propriety of a summary judgment, the appellate court independently reviews the record that was before the trial court.... We must determine whether the facts as shown by the parties give rise to a triable issue of material fact.... In making this determination, the moving party's affidavits are strictly construed while those of the opposing party are liberally construed.' ... We accept as undisputed facts only those portions of the moving party's evidence that are not contradicted by the opposing party's evidence.... In other words, the facts alleged in the evidence of the party opposing summary judgment and the reasonable inferences therefrom must be accepted as true." (A-H Plating, Inc. v. American National Fire Ins. Co. (1997) 57 Cal.App.4th 427, 433-434, 67 Cal.Rptr.2d 113, citations omitted.)

In 1994, the Crocodile Cafe operated three shifts on Fridays and Saturdays: the "a.m." shift, from 8:30 a.m. to 6 p.m.; the "mid" shift, starting between noon and 2 p.m. and ending at 11 p.m.; and the "p.m." shift, from 6 p.m. to 2 a.m. In moving for summary judgment, Crocodile included in its "separate statement" (see Code Civ. Proc., § 437c, subd. (b)) the following fact: "Defendant STIVERS told the investigating officers that he fell asleep at the wheel after having worked a double shift on Friday, May 13, 1994, and then a night shift on Saturday, May 14, 1994." As support for this fact, Crocodile cited and attached the police report. In their opposition papers, plaintiffs agreed that this fact was undisputed. Accordingly, we assume that Stivers's statement to the police was true: He worked a double shift on Friday, May 13, 1994--from 8:30 a.m. until 2 a.m.--and then the "p.m." shift on Saturday, May 14, 1994--from 6 p.m. until around midnight. ³ We also assume that Stivers was exhausted after working the "p.m." shift on May 14, 1994, and that he fell asleep at the wheel just before the accident. ⁴

Crocodile argues that this case is governed by the general rule that employers are not liable for the conduct of their employees while they are driving to and from work. Plaintiffs counter that this case falls within the "special risk" exception to the general rule. We agree with Crocodile.

"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 [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, ...' This statute has long been held to reflect the common-law doctrine of respondeat superior." (Childers v. Shasta Livestock Auction Yard, Inc. (1987) 190 Cal.App.3d 792, 800, 235 Cal.Rptr. 641; accord, Otis Elevator Co. v. First Nat. Bank (1912) 163 Cal. 31, 39, 124 P. 704.) ⁵

"[U]nder the doctrine of respondeat superior, an employer is vicariously liable for torts committed by an employee within the scope of employment.... The doctrine is based upon a policy that an employer should be responsible for losses caused by the torts of its employees that occur in the conduct of the employer's enterprise.... [p] An employee is not considered to be acting within the scope of employment when going to or coming from his or her place of work. This rule, known as the going-and-coming rule,[ ⁶] has several exceptions. Generally, an exception to the going-and-coming rule will be found when the employer derives some incidental benefit from the employee's trip." (Anderson v. Pacific Gas & Electric Co. 1993) 14 Cal.App.4th 254, 258, 17 Cal.Rptr.2d 534, citations omitted; accord, Ducey v. Argo Sales Co. (1979) 25 Cal.3d 707, 722-723, 159 Cal.Rptr. 835, 602 P.2d 755.) " 'We are not here looking for the master's fault but rather for risks that may fairly be regarded as typical of or broadly incidental to the enterprise he has undertaken.... Further, we are not looking for that which can and should reasonably be avoided, but with the more or less inevitable toll of a lawful enterprise.' " (Hinman v. Westinghouse Elec. Co. (1970) 2 Cal.3d 956, 960, 88 Cal.Rptr. 188, 471 P.2d 988.)

In a series of workers' compensation cases, the courts have recognized an exception to the going-and-coming rule where "an employee suffers injury from a special risk causally related to employment." (General Ins. Co. v. Workers' Comp. Appeals Bd. (1976) 16 Cal.3d 595, 600, 128 Cal.Rptr. 417, 546 P.2d 1361; accord, Santa Rosa Junior College v. Workers' Comp. Appeals Bd., supra, 40 Cal.3d at pp. 353-354, 220 Cal.Rptr. 94, 708 P.2d 673; Johnson v. Stratlaw, Inc. (1990) 224 Cal.App.3d 1156, 1160-1164, 274 Cal.Rptr. 363.) The "special risk" exception applies "(1) if 'but for' the employment the employee would not have been at the location where the injury occurred and (2) if 'the risk is distinctive in nature or quantitatively greater than risks common to the public.' " (Parks v. Workers' Comp. Appeals Bd. (1983) 33 Cal.3d 585, 590, 190 Cal.Rptr. 158, 660 P.2d...