Rahman v. State

• Decision Date: 27 May 2009
• Docket Number: No. 37327-1-II.,37327-1-II.
• Citation: 208 P.3d 566,150 Wn. App. 345
• Parties: Rizwana RAHMAN, Appellant, v. STATE of Washington, Respondent, v. Mohammad Shahidur Rahman, individually and Mohammad Shahidur Rahman and Rizwana Rahman, as a marital community, Third Party Defendants.
• Court: Washington Court of Appeals

208 P.3d 566

150 Wn. App. 345

Rizwana RAHMAN, Appellant, v. STATE of Washington, Respondent, v. Mohammad Shahidur Rahman, individually and Mohammad Shahidur Rahman and Rizwana Rahman, as a marital community, Third Party Defendants.

No. 37327-1-II.

Court of Appeals of Washington, Division 2.

May 27, 2009.

Candiss Anne Watson, Law Office of Anne Watson PLLC, Olympia, WA, Karen Marie Kay, Law Office of Harold Carr, PS, Lacey, WA, for Appellant.

John Coulter Dittman, Office of the Attorney General, Olympia, WA, for Respondent.

BRIDGEWATER, J.

¶ 1 Rizwana Rahman was injured while riding in a state vehicle as an unauthorized passenger. She filed suit against the State of Washington for damages associated with her injuries. The trial court summarily dismissed her complaint. We hold that as a matter of law the State is vicariously liable for Rizwana's injuries under the doctrine of respondeat superior. We reverse and remand for further proceedings.

FACTS

¶ 2 Mohammad Shahidur Rahman was employed as a summer intern by the Washington State Department of Ecology (Department) from June 1 to August 31, 2005. He was assigned to the dam safety office. His job duties included assisting with drafting, performing engineering calculations and basic data analysis, accompanying senior engineers on inspections, and helping to write reports.

¶ 3 When Mohammad¹ was hired, he was required to review Department policies including the use of state vehicles. Department of Ecology Policy 11-10 covers the operation of Ecology vehicles. It provides: "Ecology vehicles are not to be used for personal trips unrelated to the state business for which they were assigned, nor to transport passengers that are not on official state business." CP at 155.

¶ 4 Mohammad had been working for about two months when his supervisor, Douglas Johnson, assigned him to travel for an inspection. Mohammad was to drive to Spokane in order to meet a Department hydrologist with whom he would inspect a construction site. Johnson authorized Mohammad to sign out a Department vehicle overnight so that he could leave directly for Spokane the next morning.

¶ 5 The night before Mohammad's scheduled business trip, his wife Rizwana felt ill. She was also lonely and wanted to go with her husband the next day. The couple had been recently married and she had just moved to Washington. Mohammad agreed that Rizwana could ride with him to Spokane the next day. They planned for her to stay in the car during the site visit, and then they would drive directly home so Mohammad could be back at his office the following day. Mohammad did not inform anyone at the Department that Rizwana was going to accompany him.

¶ 6 Mohammad and Rizwana left Olympia about 5 AM on July 26. It was dark and drizzling when they passed Tiger Summit on Highway 18. As Mohammad drove downhill, he failed to negotiate a curve. The vehicle left the roadway, struck a tree, and rolled two or three times. Rizwana was badly injured.

¶ 7 Mohammad called his supervisor from the scene of the accident, explained what had happened, and said that his wife was badly injured. Prior to that call, Johnson did not know that Mohammad's wife was with him. Johnson instructed Mohammad to attend to his wife and tell the state patrol officer at the scene that he worked for the Department. Mohammad later received a letter of reprimand for violating the Department policy that prohibits transporting passengers who are not on official business.

¶ 8 Rizwana filed a complaint for personal injuries in Thurston County Superior Court on June 16, 2006, naming the State of Washington and Mohammad as defendants. The complaint was later amended to name the State of Washington as the sole defendant.

¶ 9 The State filed a third-party complaint, denying its liability and asserting that to the extent it might be found liable for Mohammad's actions, it was entitled to full indemnification from Mohammad and full or partial indemnification from the marital community of Mohammad and Rizwana for any damages, costs, or fees assessed against it.

¶ 10 Rizwana moved for partial summary judgment, seeking an order determining that the State was vicariously liable under the doctrine of respondeat superior for Mohammad's negligence in causing the accident. The State filed a cross-motion, asserting that it was not liable for Rizwana's injuries because, as a matter of law, Mohammad's use of a state vehicle to transport his wife was outside the scope of his employment.

¶ 11 Argument was heard before Thurston County Superior Court Judge Anne Hirsch on March 16, 2007. Summary judgment was denied pending discovery as to whether the State had policies or procedures for authorizing non-employee passengers.

¶ 12 The parties later renewed their motions. Argument was heard before Thurston County Superior Court Judge Chris Wickham on January 25, 2008. The material facts were undisputed:

Everyone agrees that [Mohammad] was working for the State of Washington, that there was a policy that prevented [him] from having a passenger in a state vehicle on state business. Everyone agrees that [he] took his wife on a trip east of the mountains, in violation of the policy. She was injured in an automobile accident....

. . . .

And everyone agrees that [Mohammad's] operation of the vehicle was negligent.

RP (Jan. 25, 2008) at 5.

¶ 13 The court framed the question at issue as "whether the State has a duty to [Rizwana] under the Doctrine of Respondeat Superior." RP (Jan. 25, 2008) at 5. The court granted the State's motion, ruling that "there is no liability under the theory of Respondeat Superior under these circumstances." RP (Jan. 25, 2008) at 18. The court noted that there is no Washington case law directly on point and relied in part on Restatement (Second) of Agency § 242 (1958) to determine that the circumstance presented warranted special treatment and that general principles of respondeat superior do not apply in this context. Rizwana's appeal to this court followed.

ANALYSIS

¶ 14 In reviewing orders on summary judgment, this court engages in the same inquiry as the trial court. Huff v. Budbill, 141 Wash.2d 1, 7, 1 P.3d 1138 (2000). Summary judgment is appropriate when there are no genuine issues of material fact and the moving party is entitled to judgment as a matter of law. CR 56(c); Huff, 141 Wash.2d at 7, 1 P.3d 1138.

¶ 15 Rizwana argues that because Mohammad was performing his job functions at the express direction of his employer when the accident occurred, the State is vicariously liable for her injuries as a matter of law under the doctrine of respondeat superior. Under this doctrine, an employer may be liable for its employee's negligence in causing injuries to third persons if the employee was within the "scope of employment" at the time of the occurrence. Breedlove v. Stout, 104 Wash.App. 67, 69, 14 P.3d 897 (2001). The test for determining if an employee is acting in the scope of employment is "whether the employee was, at the time, engaged in the performance of the duties required of him by his contract of employment, or by specific direction of his employer." Greene v. St. Paul-Mercury Indem. Co., 51 Wash.2d 569, 573, 320 P.2d 311 (1958). While determining the scope of employment is normally a jury question, where there can be only one reasonable inference from the undisputed facts, the issue may be resolved at summary judgment. Breedlove, 104 Wash.App. at 70 n. 5, 14 P.3d 897; Strachan v. Kitsap County, 27 Wash.App. 271, 274-275, 616 P.2d 1251, review denied, 94 Wash.2d 1025 (1980).

¶ 16 Our Supreme Court has further explained:

The general trend of authority is in the direction of holding that, where the employee is combining his own business with that of his employer, or attending to both at substantially the same time, no nice inquiry will be made as to which business the employee was actually engaged in when a third person was injured, and the employer will be held responsible unless it clearly appears that the employee could not have been directly or indirectly serving his employer; also the fact that the predominant motive of the employee is to benefit himself does not prevent the act from being within the course or scope of employment, and if the purpose of serving the employer's business actuates the employee to any appreciable extent, the employer is subject to liability if the act otherwise is within the service.

McNew v. Puget Sound Pulp & Timber Co., 37 Wash.2d 495, 497-98, 224 P.2d 627 (1950). Moreover, the court has rejected the notion that "breaking company ... policy" renders an employee not within the scope of employment. Dickinson v. Edwards, 105 Wash.2d 457, 470, 716 P.2d 814 (1986). The Dickinson court observed that "`[a]n act, although forbidden, or done in a forbidden manner, may be within the scope of employment.'" Dickinson, 105 Wash.2d at 470, 716 P.2d 814 (quoting Restatement (Second) of Agency § 230 (1958)). Accordingly, Dickinson held that an employer may be liable for the negligent acts of its employee, although such act "may be contrary to instructions." Dickinson, 105 Wash.2d at 470, 716 P.2d 814.

¶ 17 Likewise, in Smith v. Leber, 34 Wash.2d 611, 209 P.2d 297 (1949), our Supreme Court dealt with a similar issue. Leber claimed it was not liable for its employee's negligence in causing a car accident, because the employee was driving in a manner contrary to the employer's instructions. Smith, 34 Wash.2d at 618, 622-23, 209 P.2d 297. The employee had been directed to return a rented vehicle. However, his supervisor became aware that the employee had been drinking and told him not to drive it. The employee drove the vehicle anyway and caused an accident. Smith, 34 Wash.2d at 616-18, 209 P.2d 297. The court found Leber liable, stating "`an employer is liable for acts of his employee within the scope of the latter's employment notwithstanding such acts are done in violation of rules, orders, or instructions...