Miller v. Stouffer, B055890

CourtCalifornia Court of Appeals
Writing for the CourtKLEIN; CROSKEY, J., and DANIELSON
Citation11 Cal.Rptr.2d 454,9 Cal.App.4th 70
PartiesEsther MILLER, Plaintiff and Respondent, v. Cecilia P. STOUFFER, Defendant and Appellant, Maria Barrientos, Defendant and Respondent.
Docket NumberNo. B055890,B055890
Decision Date31 August 1992

Nelson, Draper & Teuber, Hollywood, and Vincent W. Heublein, Los Angeles, Horvitz & Levy, David M. Axelrad and Christine T. Hoeffner, Encino, for defendant and appellant.

Musick, Peeler & Garrett, C. Donald McBride and Brian E. Shear, San Francisco, for defendant and respondent.

Mazursky, Schwartz & Angelo, Charles J. Mazursky, Watkins & Stevens and Steven B. Stevens, Los Angeles, for plaintiff and respondent.

KLEIN, Presiding Justice.

Defendant and appellant Cecilia P. Stouffer (Stouffer) appeals a judgment and an order denying her motion for judgment notwithstanding the verdict (JNOV) following a jury verdict in a personal injury case in favor of plaintiff and respondent Esther Miller (Miller). (Code Civ.Proc., § 904.1, subds. (a), (d).)

The issues presented include (1) whether Stouffer's housekeeper, Maria Barrientos (Barrientos), was acting within the scope of her employment in driving Stouffer's automobile so as to make Stouffer liable for Miller's injuries under the doctrine of respondeat superior; and (2) whether Proposition 51, 1 which eliminated joint and several liability for noneconomic damages, allows Stouffer to avoid liability for Miller's noneconomic damages.

We uphold the jury's determination Stouffer is vicariously liable because we cannot say as a matter of law Barrientos was not serving her employer at the time of the accident.

Further, because the basis of Stouffer's liability is the doctrine of respondeat superior, which imputes the employee's negligence to the employer, Stouffer's reliance on Proposition 51 is misplaced. Proposition 51 modified the doctrine of joint and several liability but did not abrogate the doctrine of respondeat superior, which imposes vicarious

                liability on the employer by virtue of the employer's status.   The judgment therefore is affirmed

In May 1984, Stouffer hired Barrientos as a live-in housekeeper. Barrientos's usual working hours were 8 a.m. to about 5 p.m., and she slept at Stouffer's home five nights per week.

Stouffer has never driven an automobile. She and her adult son Gregory co-owned a 1975 Dodge Colt. The only insurance policy covering Stouffer as a co-owner of the vehicle provided $25,000 in policy limits per injured person. Stouffer's adult daughter Lisah was authorized to drive the vehicle.

Since September 1987, Lisah had been stationed at March Air Force Base. When Lisah returned home to visit Stouffer, Lisah usually did Stouffer's grocery shopping.

On the morning of November 18, 1987, the date of the accident, Stouffer prepared a grocery list and requested Lisah to do the marketing. Lisah took Barrientos along to assist her with the grocery shopping. Lisah drove the Dodge Colt.

Lisah and Barrientos went shopping at the Giant, a supermarket, and Andre's, a deli. At the Giant, Barrientos helped Lisah select Stouffer's groceries and loaded them into the car. Next, they stopped at Andre's to buy some items for Lisah. The accident occurred about 1:30 p.m. that afternoon on the way back to Stouffer's house.

After shopping at Andre's, Lisah asked Barrientos if she would like to drive on the trip home. Barrientos had a valid learner's permit and had decided to obtain a driver's license to enable her, inter alia, to assist Stouffer with various errands that required driving.

Barrientos struck Miller, a pedestrian in a crosswalk near Andre's, seriously injuring her. Miller sustained a cerebral contusion, a subdural hematoma, brain damage, a fractured pelvis and a fractured right knee.

Miller sued Barrientos, Stouffer, Lisah and Gregory. Following an initial court trial, the judgment was reversed by stipulation as to all parties except Gregory on the ground the trial court denied defendants their right to a jury trial. The judgment against Gregory from the first trial was not challenged. Gregory was found liable under the permissive user statute (Veh.Code, §§ 17150, 17151) and faced a judgment of $15,000 in compensatory damages plus costs.

The case was retried to a jury. The jury found Barrientos liable for negligence, found Barrientos acted within the scope of her employment, and awarded Miller $174,000 in economic damages and $260,000 in noneconomic damages. Although the jury was not asked to allocate negligence to Stouffer, it did so on its own by writing in her name and assigning her 40 percent of the fault. The jury also assigned 60 percent of the fault to Barrientos and 0 percent to Lisah. It further found Lisah was Stouffer's agent at the time of the accident.

Following the verdict, the trial court directed Miller's counsel to prepare the judgment. Miller's counsel filed a motion for JNOV to modify the verdict to allocate 100 percent of the fault to Barrientos and to find Stouffer vicariously liable for Barrientos's entire liability. The trial court granted Miller's motion.

Stouffer appealed from the resulting judgment and from the order denying her motion for JNOV.


Stouffer contends: (1) respondeat superior liability cannot be imposed upon her because (a) she was not running a business enterprise, (b) the going and coming rule precludes liability because Barrientos was driving to her work location at the time of the accident, (c) the special errand rule does not apply, (d) there was no benefit Stouffer does not challenge the sufficiency of the evidence to support the damage award.

from Barrientos's accompanying Lisah substantial enough to justify finding Stouffer liable, and (e) the purpose of the doctrine would not be served by holding her liable; (2) Proposition 51 limits liability for noneconomic damages to a defendant's percentage of fault, and because Stouffer was found to be only vicariously liable, she was not at fault for the accident and cannot be held liable for noneconomic damages; and (3) the verdict is hopelessly ambiguous and Stouffer therefore is entitled to a new trial.

1. Substantial evidence supports the determination Barrientos was acting within the scope of her employment so as to give rise to respondeat superior liability.
a. General principles underlying employer's vicarious liability.

"Under the doctrine of respondeat superior, an employer may be held vicariously liable for torts committed by an employee within the scope of employment. [Citation.] ... The doctrine is a departure from the general tort principle that liability is based on fault. [Citation.] It is a rule of policy, a deliberate allocation of a risk. [Citations.] Respondeat superior is based on a deeply rooted sentiment that it would be unjust for an enterprise to disclaim responsibility for injuries occurring in the course of its characteristic activities. [Citations.]" (Mary M. v. City of Los Angeles (1991) 54 Cal.3d 202, 208-209, 285 Cal.Rptr. 99, 814 P.2d 1341, internal quotation marks omitted.) 3

Three reasons have been given for applying the doctrine of respondeat superior: "(1) to prevent recurrence of the tortious conduct; (2) to give greater assurance of compensation for the victim; and (3) to ensure that the victim's losses will be equitably borne by those who benefit from the enterprise that gave rise to the injury. [Citations.]" (Mary M., supra, 54 Cal.3d at p. 209, 285 Cal.Rptr. 99, 814 P.2d 1341.)

Our Supreme Court has observed 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. [Citation.] [Fn. omitted.] 'The proper test [for respondeat superior] bears far more resemblance to that which limits liability for workers' 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.' [Citation.] Thus, under California law, an employer is liable for risks 'arising out of the employment.' [Citations.]" (Perez v. Van Groningen & Sons, Inc. (1986) 41 Cal.3d 962, 967-968, 227 Cal.Rptr. 106, 719 P.2d 676.)

For the doctrine of respondeat superior to apply, the plaintiff must prove the employee's tortious conduct was committed within the scope of the employment. (Mary M., supra, 54 Cal.3d at p. 209, 285 Cal.Rptr. 99, 814 P.2d 1341.) "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." (Ibid., internal quotation marks omitted.)

Whether an employee was acting within the scope of the employment is a question of fact for the jury, unless the facts are undisputed and no conflicting inferences are possible, in which case the issue becomes one of law. (Perez, supra, 41 Cal.3d at p. 968, 227 Cal.Rptr. 106, 719 P.2d 676.)

In determining whether the employee was acting within the scope of the employment, factors to be considered include the intent of the employee, the nature, time and place of his or her conduct, the employee's actual or implied authority, the work the employee was hired to do, the incidental acts the employer reasonably should have expected would be done, and the amount of freedom allowed the employee in performing his or her duties. (Loper v....

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    ...for noneconomic damages to a proportion of such damages equal to that tortfeasor's comparative fault." (Miller v. Stouffer (1992) 9 Cal.App.4th 70, 82, 11 Cal.Rptr.2d 454.) The relevant statute provides as follows: "In any action for personal injury, property damage, or wrongful death, base......
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    ...the Second District which found that Proposition 51 does not apply in cases based on vicarious liability. (Miller v. Stouffer (1992) 9 Cal.App.4th 70, 11 Cal.Rptr.2d 454; [63 Cal.App.4th 1197] Rashtian v. BRAC-BH, Inc. (1992) 9 Cal.App.4th 1847, 12 Cal.Rptr.2d 411; Srithong v. Total Investm......
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1 books & journal articles
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