Harless v. Nash

Decision Date19 May 1998
Docket NumberNo. 90085,No. 3,90085,3
Citation959 P.2d 27
Parties1998 OK CIV APP 79 William Jerry HARLESS, Plaintiff/Appellant, v. Dale Frederick NASH, Defendant, and Weatherford U.S., Inc., Defendant/Appellee. Court of Civil Appeals of Oklahoma, Division
CourtUnited States State Court of Criminal Appeals of Oklahoma. Court of Civil Appeals of Oklahoma
OPINION

BUETTNER, Presiding Judge.

¶1 Defendant/Appellee Weatherford U.S., Inc. moved for summary judgment in its favor on the ground that any negligence committed by its employee, Nash, occurred while Nash was returning to work. Under the "going and coming rule," an employer is not liable for damages caused by its employee who is merely going to or coming from work. The court certified the grant of summary judgment pursuant to 12 O.S. Supp.1995 § 994(A), finding no just reason for delay in entering a final judgment. We affirm.

¶2 The motion for summary judgment, as well as the individual responses of Plaintiff William Jerry Harless and Defendant Dale Frederick Nash, depend on Nash's deposition testimony in support of their positions. No party presented any other evidence.

¶3 Nash's deposition reveals that he was off work on the date when he was involved in the car wreck with Harless in November 1994. He stated that he worked out of Weatherford's store in Liberal, Kansas, but had also worked out of stores in Elk City and Woodward. He was in Elk City, his home, because of the Thanksgiving holiday. Some weekends he would go to Elk City. He stated that his job was a 24-hour on-call job, unless there was a holiday. Weatherford did not compensate him for driving from Elk City to Liberal. Weatherford had never sent him from Liberal to Elk City to pick up parts. He never used his own vehicle, a pickup truck, for company business. He was driving his own truck at the time of the wreck. Weatherford had called him one night during the Thanksgiving holiday and asked him to return to work the next day in Liberal because of unavailability of people. If the company had a job for him to do during a holiday, someone would call him and ask him to return to the shop, rather than telling him to go directly to a job site. Although it was still his holiday time, he was not compensated for the day he drove back to Liberal. The wreck occurred at the intersection of Business 40 and Highway 34. His home base store was in Liberal, which is 191 miles from Elk City. He lived in a motel room while in Liberal.

¶4 The basic rule pertaining to employer liability for the torts of an employee is that the "burden is upon the plaintiff to show, not only that the alleged employee was an employee of the defendant, but that at the time the injury was sustained and the property damage suffered he was engaged in the performance of an act which was within the scope of his employment." Elias v. Midwest Marble and Tile Company, 1956 OK 259, 302 P.2d 126 (syllabus by the court). Insofar as commuting time, as "a general rule, a man's employment does not begin until he has reached the place of his employment, and does not continue after he has gone, and where employer's liability for negligent acts of his employee is determined under the doctrine of respondeat superior the rules relating to tasks applied in workmen compensation cases has no application." Id. at 127 (syllabus by the court). In the Elias case, an employee was called into work for a few hours on a Saturday which was his usual day off. The employee was involved in a car wreck that day, while driving home at the end of the two hour job. He was in his own car and he paid its operating costs. The plaintiff in Elias argued that the employee was on a special task for his employer because he had worked on his normal day off at a place different from previous days. The Elias court found that these facts did not show that the employee was engaged in a special task for his employer, which would constitute an exception to the rule, because the test for respondeat superior is whether "at the time of the alleged act of negligence resulting in an injury to a third person, acting in the scope of his employment." Id at 128.

¶5 The plaintiff in Elias relied on two workers' compensation cases in arguing the applicability of the special task exception. The Oklahoma Supreme Court stated:

In Conversions & Surveys v. Roach, 1 Cir., 204 F.2d 499, 501, an attempt to draw the conclusion that because the employee would have been entitled to draw compensation from the employer under the Massachusetts Workmens' Compensation Act, the employee must necessarily be regarded as the servant of the employer in the operation of a car involved in a collision with a third party. The court stated:

This is a complete non sequitur. The liability of an employer to pay workmen's compensation to an injured employee and the liability of an employer to a third person on the doctrine of respondeat superior, depends upon entirely distinct considerations....

Thus, Harless' cite to Stroud Municipal Hospital v. Mooney, 933 P.2d 872 (Okla.1996) is inapposite. Stroud is a workers' compensation case in which the employee was called back from his lunch hour because of an emergency at the hospital. On the way back to the hospital, the employee was involved in an automobile accident and injured. The Oklahoma Supreme Court held that the employee was entitled to workers' compensation under the "special task" exception.

¶6 First, we do not believe Stroud overrules Elias. The cases can be harmonized because of the recognized distinction between workers' compensation and the principle of respondeat superior. 1 For purposes of tort liability, an employee is not in the course of employment going to or coming home from his job even when the hours or place of employment changes. This is the lesson from Elias.

¶7 In Anderson v. Falcon Drilling Company, 1985 OK ----, 695 P.2d 521, the Oklahoma Supreme Court cited Elias in ruling that a Workers' Compensation Court finding of course and scope of employment could not be used in a tort action to support a motion for summary judgment on the issue of respondeat superior. The Court stated:

The nature of the questions involved in finding an injury compensable in workers' compensation cases differ markedly from the questions which must be dealt with in finding an employer liable for tortious injuries to others.

¶8 The Court then cited with approval the following language from Church v. Arko, 75 Cal.App.3d 291, 298, 142 Cal.Rptr. 92, 96 (1977):

* * *

In the light of these conceptual differences, it has been held that the authorities interpreting the words "arising out of and occurring in the course of his employment" for the purpose of determining liability under the workmen's compensation laws are not controlling when the test of liability is in the interpretation of the words "acting within the scope of employment" under the doctrine of respondeat superior. [Citations omitted.]

"Although a healthy symbiosis is possible, precedents developed in one field should not be injected into another without recognition of the separate principles prevailing in each." [Citation omitted.]

"Scope of employment" defines a more restricted area of employee conduct than the phrase "arising out of and in the course of employment." [Citations omitted.] Thus, an employee can suffer a compensable injury under workers' compensation but not be within the scope of employment. [Citation omitted.] If an injury is within the "scope of employment," it will probably be "arising out of and [occurring] in the...

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  • Spencer v. V.I.P., Inc.
    • United States
    • Maine Supreme Court
    • 25 Octubre 2006
    ...of scope of employment, because the two standards serve different purposes and effectuate different policies. See Harless v. Nash, 959 P.2d 27, 29 (Okla.Civ.Ct.App.1998); Jones v. Aldrich Co., 188 Ga.App. 581, 373 S.E.2d 649, 651 (1988); Flanders v. Hoy, 230 Pa.Super. 322, 326 A.2d 492, 494......

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