Harris v. Trojan Fireworks Co.

• Decision Date: 08 June 1981
• Citation: 174 Cal.Rptr. 452,120 Cal.App.3d 157
• Court: California Court of Appeals Court of Appeals
• Parties: Eleanor A. HARRIS, et al., Plaintiffs and Appellants, v. TROJAN FIREWORKS COMPANY, Defendant and Respondent. Civ. 23938.

Page 452

174 Cal.Rptr. 452

120 Cal.App.3d 157

Eleanor A. HARRIS, et al., Plaintiffs and Appellants, v. TROJAN FIREWORKS COMPANY, Defendant and Respondent.

Civ. 23938.

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

June 8, 1981.

Peach, Shapiro & Peach and Timothy W. Peach, San Bernardino, for plaintiffs and appellants.

Morris, Polich & Purdy, Theodore P. Polich and Susan R. Flamm, Los Angeles, for defendant and respondent.

OPINION

GARST, Associate Justice. ^*

STATEMENT OF THE CASE

This is an appeal from an order dismissing plaintiffs' complaint. The order of dismissal was entered at the request of defendant Trojan Fireworks Company after defendant's demurrer to plaintiffs' complaint had been sustained. Plaintiffs were granted 30 days to amend their complaint which they declined to do.

STATEMENT OF FACTS

Since the appeal arose from an order dismissing the complaint, the facts stated are the facts which are alleged in the complaint.

The complaint is brought in four counts. The first count seeks damages for the wrongful death of James Harris and is brought by his parents. Counts 2 and 3 are brought by two minor children for their personal injuries and count 4 is brought by the mother of the minor children, for reimbursement of medical expenses which were incurred for medical care required for the children as a result of the injuries which they sustained. The children were riding in a car driven by James Harris when it was involved in an accident with a car driven by Anthony Barajas (Barajas).

Barajas was an employee of defendant Trojan Fireworks Company (Trojan).

On Friday, December 21, 1979, at the Trojan manufacturing plant in Rialto, commencing at noon and continuing until 4 p. m., Trojan held a Christmas party for its employees at which, it is alleged, the employees were caused to attend and caused to imbibe large quantities of alcoholic beverages.

Barajas attended the party and became intoxicated to the extent that his ability to drive an automobile was substantially impaired. Nevertheless, he attempted to drive home. In this attempt he was involved in the accident which resulted in the death of James Harris and injury to Dawn and Steven Griffin.

Plaintiffs allege the death of Harris and the injuries of Dawn and Steven Griffin were the result of the accident which was proximately caused by Barajas' advanced state of intoxication.

CONTENTIONS

Plaintiffs contend that their complaint is sufficient. They contend that Barajas' intoxication, which was the proximate cause of the accident and resulting injuries and death, occurred in the course and scope of his employment so that under the doctrine of respondeat superior his employer, defendant Trojan, is liable for the resulting injuries and wrongful death.

Defendant urges that section 25602 of the Business and Professions Code bars any action against Trojan. ¹ Trojan further contends The issue presented is whether, as a matter of law, the complaint states facts which would support a judgment against Trojan under any theory of liability.

that even if Business and Professions Code section 25602 is not to be interpreted as barring a cause of action based upon principles of respondeat superior, that the respondeat superior doctrine is not here applicable because the accident did not occur until after Barajas had left the defendant's plant and was on his way home.

We are of the opinion that the demurrer should have been overruled.

DISCUSSION

Respondeat Superior

As a general rule, a principal is responsible for the acts of his agent; however, an employer is often exempted from liability for injury caused to or by the employee while the employee is traveling to or from work.

This exemption of employer liability is often referred to as the "going and coming" rule. In workers' compensation cases where the rule has been applied to relieve an employer or its carrier from liability resulting from injuries to the employee, it is often stated that the injury was not incurred "in the course and scope of the employment." (Witkin, Summary of Cal. Law (8th ed.) Workmen's Compensation, § 116, p. 947.) In third party liability cases, the negligent employee's employer is often excused from liability under the "going and coming" rule on the rationale that the employer should not be liable for acts of the employee which occur when the employee is not rendering service to his employer, (Robinson v. George (1940) 16 Cal.2d 238, 244, 105 P.2d 914) or where the employer has no right of control over the employee (Harris v. Oro Dam Constructors (1969) 269 Cal.App.2d 911, 915, 917, 75 Cal.Rptr. 544).

However, there are numerous exceptions to the foregoing rules. ² Defendant urges that we should not look to the rationale of workers' compensation cases in determining an employer's liability to third persons incurred by a negligent employee, because of the legislative directive favoring liberal construction of the workers' compensation laws. ³ Presumably this liberal construction is to accomplish a shifting of the loss to the employer, who is in a better position to distribute it and who should bear the burden of the loss as a cost of doing business. (See Harris v. Oro-Dam Constructors, supra, 269 Cal.App.2d 911, 915, 75 Cal.Rptr. 544.) While it may be desirable that the employer compensate a negligent employee injured by his own negligence, it is equally desirable that the employer compensate an innocent third person injured by a negligent employee where the risk is inherent in or created by the employment. (See Rodgers v. Kemper Constr. Co., supra, 50 Cal.App.3d 608, 618, 124 Cal.Rptr. 143.)

The propriety of applying the rationale of workers' compensation cases to third party injury fact situations and vice versa is now well established. "Although the test of workmen's compensation law of 'arising out of and in the course of employment' (Lab. Code, § 3600) is not identical with the test of 'scope of employment' under the respondeat superior doctrine (citations omitted), one of the principal considerations under compensation law is the benefit to the employer (citations omitted); both fields of law are concerned with the allocation of the cost of industrial injury; and the two tests are closely related. (Citations omitted.)" (Hinman v. Westinghouse Elec. Co., supra, 2 Cal.3d 956, 962, 88 Cal.Rptr. 188, 471 P.2d 988.)

The law now recognizes that the entire subject of torts is a reflection of social policies which fix financial responsibility for harm done. As we depart from liability for one's own act or conduct and enter into the arena of vicarious liability, the quest of liability is frequently determined by who is best able to spread the risk of loss through the prices charged for its product or liability insurance. (Hinman v. Westinghouse Electric Company, supra, 2 Cal.3d 956, 959-960, 88 Cal.Rptr. 188, 471 P.2d 988; Fields v. Sanders (1947) 29 Cal.2d 834, 180 Cal.Rptr. 684.) The underlying philosophy which holds an employer liable for an employee's negligent acts is the deeply rooted sentiment that a business enterprise should not be able to disclaim responsibility for accidents which may fairly be said to be the result of its activity. (Ira S. Bushey & Sons, Inc. v. United States (2 Cir. 1968) 398 F.2d 167; see also Keeton, A Conditional Fault in the Law of Torts, 72 Harv.L.Rev. 401.)

In the case of Rodgers v. Kemper Constr. Co., supra, 50 Cal.App.3d 608, 124 Cal.Rptr. 143, this court stated:

"Under the modern rationale for respondeat superior, the test for determining whether an employer is vicariously liable for the tortious conduct of his employee is closely related to the test applied in workers' compensation cases for determining whether an injury arose out of or in the course of employment. (Citations.) This must necessarily be so because the theoretical basis for placing a loss on the employer in both the tort and workers' compensation fields is the allocation of the economic cost of an injury resulting from a risk incident to the enterprise." (50 Cal.App.3d at p. 619, 124 Cal.Rptr. 143.)

Thus, we think it can be fairly said that liability attaches where a nexus exists between the employment or the activity which results in an injury that is foreseeable. ⁴ Foreseeable is here used in the sense that the employee's conduct is not so unusual or startling that it would seem unfair to include the loss resulting from it among the other costs of the employer's business. (Rodgers v. Kemper Constr. Co., supra, 50 Cal.App.3d at p. 619, 124 Cal.Rptr. 143.)

Applying these standards of business purpose or business activity and foreseeability to the facts of the instant case it appears that there is sufficient connection between the employment or the employer's Christmas party and the employee's negligent act to justify holding the employer financially responsible for the injuries occasioned by the employee's accident. Although the accident occurred away from the employer's premises and presumably after work, ⁵ we believe that the operable factors giving rise to the subsequent accident at least make a prima facie showing that the accident occurred in the course of Harris' employment with defendant.

It may be inferred that the party was for the benefit of the employer. It may be argued that the purpose of the party was to improve employer/employee relations or to increase the continuity of employment by providing employees with the fringe benefit of a party, or to improve relations between the employees by providing them with this opportunity for social contact. (Boynton v. McKales, supra, 139 Cal.App.2d 777, 789, 294 P.2d 733.) That Trojan intended for Barajas to attend the party is indicated by the fact that the party was held at work during work hours and Barajas was paid to attend. That Trojan intended for Barajas to consume alcohol is implied from the fact that the employer furnished the alcoholic beverages and it is further alleged that Trojan,...