Kang v. Charles Pankow Associates

• Decision Date: 05 January 1984
• Docket Number: No. 8917,8917
• Citation: 675 P.2d 803,5 Haw.App. 1
• Parties: Richard KANG and Nancy Kang, Individually and as Next Friend of Evert Kang and Erik Kang, Minors, Plaintiffs-Appellants, and Industrial Indemnity Insurance Company of Hawaii, Ltd., Plaintiff, v. CHARLES PANKOW ASSOCIATES, Defendant-Appellee, and Glen D. Pluid, Defendant.
• Court: Hawaii Court of Appeals

Page 803

675 P.2d 803

5 Haw.App. 1

Richard KANG and Nancy Kang, Individually and as Next Friend

of Evert Kang and Erik Kang, Minors,

Plaintiffs-Appellants, and Industrial

Indemnity Insurance Company of

Hawaii, Ltd., Plaintiff, v. CHARLES PANKOW ASSOCIATES, Defendant-Appellee, and Glen D.

Pluid, Defendant.

No. 8917.

Intermediate Court of Appeals of Hawai'i.

Jan. 5, 1984.

Syllabus by the Court

1. A motion for summary judgment should be granted only where, from the record, there is no genuine issue of material fact and the movant clearly demonstrates that he should prevail as a matter of law. In the disposition of the motion, the inferences to be drawn from the underlying facts must be viewed in the light most favorable to the non-moving party.

2. Under the doctrine of respondeat superior, the employer is held accountable and liable for the negligent acts of the employee. However, recovery under the doctrine requires that the employee's act complained of must have been within the scope of employment.

3. An employee's conduct is generally within the scope of employment if (1) it is of the kind he is employed to perform, (2) it occurs substantially within the authorized time and space limits, and (3) it is actuated, at least in part, by a purpose to serve the employer.

4. Whether the employee is acting within the scope of employment is a question of fact to be determined in the light of the evidence in each case.

5. Since the Hawaii workers' compensation law accords to the employee a presumption that his "claim is for a covered work injury," which means that the injury arose "out of and in the course of employment," while Hawaii tort law does not include any analogous presumption, the rationale used in determining whether an injury arose "out of and in the course of employment" in workers' compensation cases is not applicable in the resolution of "scope of employment" issues under the respondeat superior doctrine in tort cases.

6. Where the only reasonable inference and conclusion that may be drawn from the facts is that an employee's action at the time of the accident was not within the scope of employment, the employer is entitled to a summary judgment as a matter of law.

Herbert R. Takahashi, Honolulu (Linda K. Goto, Honolulu, with him on briefs; Herbert R. Takahashi, a Law Corporation, Honolulu, of counsel), for plaintiffs-appellants.

Barry M. Kurren, Honolulu (Edmund Burke and Brian Aburano, Honolulu, with him on brief; Burke, Ashford, Sakai, McPheeters, Bordner & Gilardy, Honolulu, of counsel), for defendant-appellee.

Before BURNS, C.J., and HEEN and TANAKA, JJ.

TANAKA, Judge.

Plaintiffs Richard Kang and Nancy Kang, individually and as next friend of Evert Kang and Erik Kang, minors (collectively Appellants), appeal the summary judgment in this negligence action which held that defendant Charles Pankow Associates (Pankow) was not vicariously liable as a matter of law under the doctrine of respondeat superior for the damages suffered by Appellants. We find no error and affirm.

Viewed in the light most favorable to Appellants, the record reveals the following facts. Pankow is a general contractor. Defendant Glen D. Pluid (Pluid) is a carpenter by trade. Pluid first worked for Pankow at Camp Pendleton, California. After being laid off by Pankow, Pluid worked for some small companies and was also self-employed in California.

Subsequently, Pluid wanted to work for Pankow again. He telephoned Tony Giron, a Pankow superintendent, who was then working in Hawaii. About two weeks after being offered a job, Pluid arrived in Hawaii at his own expense. He initially worked for Pankow's Kawaiahao Plaza project and, thereafter, on three other Pankow projects in Honolulu. Pluid was a working foreman on each of these projects.

After the completion of the last project in Honolulu, Jack Parker (Parker), Pankow's superintendent for "The Cliffs at Princeville" condominium project (Princeville project) at Princeville, Kauai, offered Pluid a general foreman's position. Unfortunately, two weeks later on July 31, 1979, his girlfriend, Sandra Yamashiro (Sandra) was murdered. Shocked by the tragedy, Pluid returned to the mainland United States.

Upon returning to Honolulu 20 days later, Pluid learned that the general foreman's position offered him had been filled. However, on September 6, 1979, Parker hired Pluid as a journeyman carpenter for the Princeville project. Pluid considered himself to be a bona fide resident of Oahu. ¹ After two months, Pluid was promoted to working foreman. Pursuant to the union contract, Pluid and all Pankow employees who came to Kauai from Oahu to work on the Princeville project received, in addition to wages, per diem subsistence allowances to cover housing and food expenses. Pankow's Kauai employees were reimbursed for their home to job site travel on a mileage basis.

Pluid's transportation to Kauai was paid for by Pankow. In addition, Pankow permitted its Princeville project employees from Oahu to fly from Kauai back to Oahu on weekends at the company's expense. Pluid took advantage of this benefit on a couple of occasions before it was discontinued. Other than the benefits listed above, Pankow did not pay any of Pluid's living or travel expenses. ²

Pluid's normal working day on the Princeville project was from 7:00 a.m. to 3:30 p.m., Monday through Friday. Pankow paid overtime compensation for work done past 3:30 p.m. Pluid signed daily time cards reflecting the hours worked and was paid from his time of arrival at the job site to the time of leaving. Pankow gave Pluid no responsibilities or duties and "exercised no control over any of [his] activities outside of regular working hours." Affidavit of Glen D. Pluid, attached to Pankow's Motion for Summary Judgment.

Since Pluid considered the Princeville-Hanalei area "remote" and "isolated" (Deposition of Pluid at 71), he shipped a Mazda RX-7 sportscar (the Mazda) to Kauai at his own expense. Pursuant to the terms of the union contract, Pankow provided the employees with a parking lot next to the job site, but did not encourage Pluid to ship over the car. Other than not permitting personal cars on the work location, Pankow never gave directions nor imposed any regulations on the use of the employees' personal cars. Pluid did not use the Mazda for work purposes. Company vehicles were provided for use on the job, and Pluid did not use them when not at work.

On February 15, 1980, Pluid reported to work at the Princeville project as usual. He signed his daily time card at 3:30 p.m., reflecting the end of his work day. Pluid then left the job site to go to the bank. After cashing his paycheck, he went to the nearby Chuck's Steakhouse for a few beers. Pluid left for home at a little past 5:00 p.m., where he showered, "messed around the house ... and got ready to go to town ...." Deposition of Pluid at 86. At about 7:00 p.m., he left his house to drive to the Bullshed restaurant near Kapaa to meet John Wong (Wong), Pluid's friend and co-worker, and their girlfriends. The dinner party was a purely social activity.

While driving the Mazda on Highway 56 towards Kapaa, Pluid collided with a pickup truck driven by Richard Kang (Kang). Due to the impact, Kang was thrown a considerable distance from the truck. Both Kang and his female passenger were seriously injured. The accident rendered Kang a paraplegic.

On November 20, 1980, Appellants and co-plaintiff Industrial Indemnity Insurance Company of Hawaii, Ltd. (Industrial) sued Pluid and Pankow alleging Pluid's negligence as the cause of the accident and Pankow's vicarious liability as Pluid's employer. Appellants sought recovery of special and general damages, and Industrial claimed reimbursement for workers' compensation benefits paid to Kang. On January 6, 1981, Pankow answered, denying liability. Pluid failed to plead and default was entered against him on April 22, 1981.

On June 10, 1981, Pankow moved for summary judgment, which was granted on August 12, 1981.

On June 8, 1982, a default judgment was entered against Pluid in the total amount of $4,705,968.78. On July 2, 1982, Appellants filed their notice of appeal. ³

I.

The standard applicable to an appellate court's review of a summary judgment "is identical to that applicable to the trial court's consideration of the motion." Munoz v. Yuen, 66 Haw. 603, 670 P.2d 825 at 827 (1983). See also Silver v. George, 64 Haw. 503, 644 P.2d 955 (1982); Technicolor, Inc. v. Traeger, 57 Haw. 113, 551 P.2d 163 (1976). Thus, a motion for summary judgment should be granted only "where, from the record, there is no genuine issue as to any material fact and movants clearly demonstrate they should prevail as a matter of law." Hulsman v. Hemmeter Development Corp., 65 Haw. 58, 61, 647 P.2d 713, 716 (1982). See also Iuli v. Fasi, 62 Haw. 180, 613 P.2d 653 (1980); Miller v. First Hawaiian Bank, 61 Haw. 346, 604 P.2d 39 (1979). Additionally, the inferences to be drawn from the underlying facts in the record must be viewed in the light most favorable to the non-moving party. Fernandes v. Tenbruggencate, 65 Haw. 226, 649 P.2d 1144 (1982); Silver v. George, supra; Technicolor, Inc. v. Traeger, supra.

Appellants contend that (1) there are genuine issues of material fact in the record and (2) if the inferences drawn from the undisputed underlying facts are viewed in the light most favorable to them, there is a genuine issue of material fact whether Pluid was acting within the scope of his employment at the time of the accident. Consequently, they claim that summary judgment was improper in this case. We disagree. II.

Initially, Appellants argue that there is a genuine dispute regarding the ownership of the Mazda. ⁴ They contend that if an employee was operating his employer's vehicle at the time of an accident, there is a presumption that he was acting within the scope of his employment and, consequently, the ownership of the Mazda is a material...