Perez v. Van Groningen & Sons, Inc.

• Citation: 719 P.2d 676,227 Cal.Rptr. 106,41 Cal.3d 962
• Decision Date: 23 June 1986
• Docket Number: S.F. 24882
• Court: United States State Supreme Court (California)
• Parties: , 719 P.2d 676 Modesto PEREZ, a Minor, etc., Plaintiff and Appellant, v. VAN GRONINGEN & SONS, INC., Defendant and Respondent.

Page 106

227 Cal.Rptr. 106

41 Cal.3d 962, 719 P.2d 676

Modesto PEREZ, a Minor, etc., Plaintiff and Appellant, v. VAN GRONINGEN & SONS, INC., Defendant and Respondent.

S.F. 24882.

Supreme Court of California.

June 23, 1986.

W.J. Cassette, Stockton, for plaintiff and appellant.

Mackenroth, Seley, Chaffin, Anwyl, Mackenroth, Seley & Anwyl and Claudia Robinson, Sacramento, for defendant and respondent.

REYNOSO, Justice.

When a tractor operator is performing his normal task of disking, but has invited an unauthorized rider onto the tractor, is he still acting within the scope of employment? The answer is "yes."

In this personal injury action, plaintiff Modesto Perez, the rider of the tractor, appeals from a judgment entered on a jury verdict in favor of defendant, Van Groningen & Sons, Inc. Perez contends that the trial court erred in refusing to instruct the jury as a matter of law that Van Groningen's employee, the tractor driver, was acting within the scope of his employment at the time of the accident. We agree and reverse.

I.

At the time of the accident, Perez was living with an uncle. Another of his uncles, Eulalio Garcia, the employee of defendant, had been told to disk defendant's orchard, a process of driving a tractor through an orchard pulling a disking attachment. As he was leaving, Garcia asked Perez to come along to learn how to operate a tractor. While he disked the orchard, Garcia allowed Perez to ride with him on the tractor. Perez sat on a raised toolbox because the tractor had only one seat.

John Van Groningen testified that a company rule forbade anyone but the driver to ride on a tractor because of the potential danger. He had informed Garcia of the no passenger rule two years before the accident when Garcia had started the disking job. Garcia, on the other hand, testified that while Van Groningen was the person from whom he took instructions, nothing had been said about passengers. The accident occurred when a low-hanging branch knocked Perez off the tractor and into the disking attachment. Perez lost the bottom portion of one leg and the use of an arm when he was run over by the disk.

Perez sued defendant under the doctrine of respondeat superior. Based on the evidence, Perez sought an instruction that Garcia was acting within the scope of his employment as a matter of law and that his negligence must be attributed to defendant, his employer. Defendant opposed this instruction, contending that in attempting to teach Perez to drive a tractor, Garcia was not acting in the scope of his employment because he was violating a company rule and acting for totally personal purposes. The trial court refused to instruct the jury that Garcia was acting within the scope of his employment as a matter of law. Instead, the court put the issue to the jury as a factual question. ¹

During its deliberations, the jury asked the court for further instruction on the meaning of "scope of employment" and "scope of authority." The court informed the jury that it had already received adequate instruction on this point and that the two terms in question were synonymous. Next, the jury announced that it had been unable to decide this issue. As the foreman explained: "We're all pretty much in agreement until we come to whether or not Mr. Garcia was within the scope of authority and employment.... Well, we asked for the definitions ... and ... we were given the same things we had when we went in there, which we read, and it comes down to an interpretation of what those things are, and ... some of us feel that Mr. Garcia was outside and some feel that he was inside, and that's our problem, so I'm really not informed enough to know if there's something that's going to change that unless there's something you can give us...." The court requested the jury to deliberate further. Eventually, the jury returned a special verdict on which it answered "no" to the first question: "Was the defendant negligent?" Perez appeals from the judgment entered on that verdict.

II. Respondeat Superior

The issue is whether acceptance of an unauthorized passenger may take Garcia's acts out of the scope of his employment because such an act is not a risk arising out of the employment. Our review of the law convinces us that Garcia was at all times acting within the scope of employment. He was principally engaged in disking, his employer's business.

Under the doctrine of respondeat superior, an employer is vicariously liable for his employee's torts committed within the scope of the employment. This doctrine is based on " 'a rule of policy, a deliberate allocation of a risk. The losses caused by the torts of employees, which as a practical matter are sure to occur in the conduct of the employer's enterprise, are placed upon that enterprise itself, as a required cost of doing business.' " (Hinman v. Westinghouse Elec. Co. (1970) 2 Cal.3d 956, 959-960, 88 Cal.Rptr. 188, 471 P.2d 988, quoting Prosser, Law of Torts (3d ed. 1964) p. 471.) Three reasons have been suggested for imposing liability on an enterprise for the risks incident to the enterprise: "(1) [I]t tends to provide a spur toward accident prevention; (2) it tends to provide greater assurance of compensation for accident victims, and (3) at the same time it tends to provide reasonable assurance that, like other costs, accident losses will be broadly and equitably distributed among the beneficiaries of the enterprises that entail them." (5 Harper, James & Gray, The Law of Torts (2d ed. 1986) § 26.5, p. 21, fns. omitted; see also Johnston v. Long (1947) 30 Cal.2d 54, 64, 181 P.2d 645 ["The principal justification for the application of the doctrine of respondeat superior in any case is the fact that the employer may spread the risk through insurance and carry the cost thereof as part of his costs of doing business."].)

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. (Hinman, supra, 2 Cal.3d at p. 962, fn. 3, 88 Cal.Rptr. 188, 471 P.2d 988.) ² "The proper test [for respondeat superior] bears far more resemblance to that which limits liability for worker's 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." (5 Harper, James & Gray, supra, § 26.7, pp. 28-31.) Thus, under California law, an employer is liable for risks "arising out of the employment." (George v. Bekins Van & Storage Co. (1949) 33 Cal.2d 834, 843, 205 P.2d 1037; Carr v. Wm. C. Crowell Co. (1946) 28 Cal.2d 652, 657, 171 P.2d 5.)

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. [Citation.]" (Rodgers v. Kemper Constr. Co. (1975) 50 Cal.App.3d 608, 619, 124 Cal.Rptr. 143.) Accordingly, the employer's liability extends beyond his actual or possible control of the employee to include risks inherent in or created by the enterprise. (Hinman, supra, 2 Cal.3d at p. 960, 88 Cal.Rptr. 188, 471 P.2d 988.) The enterprise in question, we have noted, is the work--the disking--performed by the employee.

To recover under respondeat superior, plaintiff bears the burden of proof to demonstrate that the employee's tortious act was committed within the scope of his employment. (Ducey v. Argo Sales Co. (1979) 25 Cal.3d 707, 721, 159 Cal.Rptr. 835, 602 P.2d 755.) Under this doctrine, "[t]he cases which have considered recovery against the master for accidents occurring within the scope and during the period of employment have established a general rule of liability with a few exceptions for cases where the employee has substantially deviated from his duties for personal purposes." (Hinman, supra, 2 Cal.3d at p. 960, 88 Cal.Rptr. 188, 471 P.2d 755, italics added.) Generally, the issue of scope of employment is a question of fact. (Ducey, supra, at p. 722, 159 Cal.Rptr. 835, 602 P.2d 755.) However, the issue becomes a question of law when the facts are undisputed and no conflicting inferences are possible. (Hinman, supra, 2 Cal.3d at p. 963, 88 Cal.Rptr. 188, 471 P.2d 988.)

In this case, it was uncontroverted that at the time of the accident, Garcia was driving defendant's tractor in its orchards and was performing an assigned task during working hours. In fact, Garcia had operated tractors the last two years of his three-year tenure with defendant while working in the orchard division. When Perez asked the court to instruct that Garcia was acting within the scope of his employment as a matter of law, however, defendant argued against the proposed instruction. Defendant claimed that Garcia violated company instructions by taking an unauthorized passenger for the purpose of teaching him to drive, and that his conduct benefited only him and not defendant. The trial court ruled that the question of scope of employment was an issue of fact for the jury.

The trial court erred. As long as it is clear that at the time of the injury the employee was following his employer's instructions to disk the orchard, the fact that he was not authorized to take a passenger is immaterial. In Meyer v. Blackman (1963) 59 Cal.2d 668, 31 Cal.Rptr. 36, 381 P.2d 916, for example, plaintiff's decedent was killed in an accident when defendant's employee drove through a red light. Defendants argued that respondeat superior should not apply because the...