Molino v. Asher

• Decision Date: 29 October 1980
• Docket Number: No. 12116,12116
• Citation: 618 P.2d 878,96 Nev. 814
• Parties: Leona MOLINO, Appellant, v. Wayne ASHER and Emma Asher, Husband and Wife, Respondents.
• Court: Nevada Supreme Court

Page 878

618 P.2d 878

96 Nev. 814

Leona MOLINO, Appellant, v. Wayne ASHER and Emma Asher, Husband and Wife, Respondents.

No. 12116.

Supreme Court of Nevada.

Oct. 29, 1980.

[96 Nev. 815] Jaquette & Kilpatrick, Carson City, for appellant.

Cromer, Barker, Michaelson, Gillock & Rawlings, Cynthia Pyzel and Victor Alan Perry, Reno, for respondents.

OPINION

MANOUKIAN, Justice:

In this second appeal from orders of summary judgment in favor of Wayne Asher and Emma Asher, respondents-defendants, we are required to determine whether the trial court erred in concluding that co-employee statutory immunity insulates respondents from common law liability and whether the doctrine of the law of the case precluded the trial court from considering the scope of the term "highway."

This is an action to recover damages for personal injuries sustained by Leona Molino. She had parked her vehicle in the parking lot of her employer, Lynch Communications Systems, and was preparing to go to work. As she exited her vehicle, it was struck by another car driven by her co-employee, Emma Asher. Molino allegedly sustained personal injuries as a result of the impact. The employer had accepted the provisions of the Nevada Industrial Insurance Act. The complaint alleges negligence of the co-employee as the proximate cause of Molino's injury and damage, and also seeks to impose liability upon Wayne Asher, Emma's husband, by reason of his co-ownership of the car Emma was driving when the accident occurred.

Prior to the first appeal, the trial court had entered summary judgment in favor of respondents, concluding that the Nevada Industrial Insurance Act exempted respondent Emma Asher from suit and that NRS 41.440 was inapplicable to Wayne Asher, notwithstanding his co-ownership of the vehicle. We reversed, holding that: (1) the co-employees grant of immunity extends only to situations where, apart from the compensation act, the employer would be liable under the doctrine of respondeat superior, and (2) the term "highway" for the purpose of imputing negligence to the owner of a car under NRS 41.440, is broad enough to embrace a parking lot. Because the issue of co-employee immunity under NRS 616.560(1) was not addressed by the district court, we reversed the summary judgment and remanded for further proceedings to determine if the co-employee immunity protects Emma Asher from suit. See Molino v. Asher, 95 Nev. 33, 588 P.2d 1033 (1979).

On remand, the district court again granted summary judgment in favor of respondents, finding that because Emma Asher was within "the course and scope of her employment" at the time of the accident, she was immune from suit as a co-employee. NRS 616.560(1). ¹ Furthermore, contrary to our earlier Molino holding, the district court concluded that the privately owned parking lot was not a highway within the context of NRS 41.440, which ruling, if upheld, would have the effect of relieving Wayne Asher of any liability as the co-owner of the automobile. We conclude that the trial court erred in both respects.

1. The Propriety of Summary Judgment.

On the initial appeal, we held that NRS 616.560(1) exempts a co-employee from liability for tortious conduct in situations where the employer would have been liable at common law. Molino v. Asher, 95 Nev. at 36, 588 P.2d at 1035. In that previous appeal the question of common law liability had not been determined and therefore we remanded the case for further proceedings. By granting summary judgment, the district court determined that common law respondeat superior liability would attach as a matter of law to Emma Asher's employer. Furthermore, by granting the summary judgment the court determined that the claimed negligence in parking her vehicle was activity within both the course and scope of her employment. Therefore, Emma Asher would be immune from an independent suit for damages.

Summary judgment is only available to resolve issues of law where the facts are not in dispute. NRCP 56(c). We must therefore determine whether summary judgment in favor of respondents was appropriate, whether in view of appellant-plaintiff's counter motion for summary judgment and the state of the record, appellant was entitled to summary judgment, or whether the issue of course and scope of employment was one for determination by the trier of fact. ²

Ordinarily, respondeat superior liability attaches only when the employee is under the control of the employer and when the act is within the scope of employment. National Convenience Stores v. Fantauzzi, 94 Nev. 655, 657-58, 584 P.2d 689, 691-92 (1978). The tortious conduct of an employee in transit to or from the place of employment will not expose the employer to liability unless there is a special errand which requires driving. Id. at 658, 584 P.2d at 692. Here, it is undisputed that the master-servant relationship existed between appellant Molino and respondent Emma Asher as co-employees and Lynch Communications as employer. The main focus then, is upon whether the alleged tortious conduct of Emma Asher occurred within the scope of employment. The record reflects that the trial court thoroughly detailed the facts allegedly supportive of employer control over both appellant and Mrs. Asher. Nevertheless, the record is devoid of any evidence to show that either party was within the course of employment and under the control of Lynch Communications Systems at the time of the accident in question. Many courts have held, in accordance with our holding, that parking lot accidents under the "coming and going" rule are not sufficiently within the scope of employment to warrant respondeat superior liability. Saala v. McFarland, 63 Cal.2d 124, 45 Cal.Rptr. 144, 403 P.2d 400 (1965); McKelvy v. Barber, 381 S.W.2d 59 (Tex.1964); Ward v. Wright, 490 S.W.2d 223 (Tex.Civ.App.1973); Williams v. Bebbington, 247 S.C. 260, 146 S.E.2d 853 (1966). See also Rest. Agency 2d § 229 comment d.

Clearly, there was no special errand or job responsibility which would have put Emma Asher in her employer's control. See National Convenience Stores v. Fantauzzi, 94 Nev. at 658, 584 P.2d at 692; Ducey v. Argo Sales Co., 25 Cal.3d 707, 159 Cal.Rptr. 835, 848, 602 P.2d 755, 768 (1979). Whether there exists a material conflict in the evidence concerning whether an employee was engaged in the scope of employment when the tortious act occurred was held to be a question of fact for jury determination. National Convenience Stores v. Fantauzzi, 94 Nev. at 659, 584 P.2d at 692; Witt v. United States, 319 F.2d 704 (9th Cir. 1963). Here, however, the evidence was clear that Molino's co-employee, Mrs. Asher, would not be exempt under the common law theory of liability as the common employer could not be responsible for his employees' conduct under the respondeat superior doctrine. Molino v. Asher, 95 Nev. at 36, 588 P.2d at 1035.

Accordingly we...