Rowland v. County of Sonoma

• Citation: 269 Cal.Rptr. 426,220 Cal.App.3d 331
• Decision Date: 15 May 1990
• Docket Number: No. A045188,A045188
• Court: California Court of Appeals
• Parties: Marvin ROWLAND, Plaintiff and Appellant, v. COUNTY OF SONOMA, Defendant and Respondent.

Page 426

269 Cal.Rptr. 426

220 Cal.App.3d 331

Marvin ROWLAND, Plaintiff and Appellant, v. COUNTY OF SONOMA, Defendant and Respondent.

No. A045188.

Court of Appeal, First District, Division 5, California.

May 15, 1990.

Barbara L. Bozman-Moss, Gary V. Judd, Teal & Montgomery, Santa Rosa, for plaintiff and appellant.

Mark D. Peters, Senneff, Bernheim, Emery & Kelly, Santa Rosa, for defendant and respondent.

LOW, Presiding Justice.

Rowland, an inmate in the Sonoma County jail, was being driven from work detail in a county-owned station wagon when the car suddenly lost its right front wheel and abruptly stopped. Rowland was thrown around the car's interior and sustained injuries to his neck and back. The county denied his claim and Rowland filed suit.

The county moved for summary judgment on the grounds that it is generally immune from liability for injuries to prisoners (see Gov.Code, § 844.6), and plaintiff did not establish the exception to immunity for injuries caused by negligent operation of a vehicle (see Gov.Code, § 844.6, subd. (b); Veh.Code, § 17001). The trial court agreed, ruling that plaintiff failed to produce any evidence of negligent operation or maintenance of the vehicle. The court rejected any proof of negligence under the theory of res ipsa loquitur, concluding that plaintiff failed to show that the vehicle was maintained or serviced by a county employee rather than an independent contractor.

We choose not to address the merits of the appeal because the issue of subject matter jurisdiction is yet to be decided. Excerpts of plaintiff's declaration submitted with the motion for summary judgment indicate that he was working at the Sonoma County dumpsite at the time of his injury. There is no indication whether he volunteered for the assignment or if it was required as a condition of incarceration. Plaintiff was not certain if he received sentence credits for the work done. This motion and the declarations raise the issue whether plaintiff was an "employee" of the county as defined by the Workers' Compensation Act. If so, the exclusive workers' compensation remedy would apply and the civil courts would then have no jurisdiction over the matter. (Lab.Code, §§ 3600-3602; Wright v. FMC Corp. (1978) 81 Cal.App.3d 777, 779, 146 Cal.Rptr. 740.) Jurisdiction, once determined, is exclusive and is not concurrent. (Scott v. Industrial Acc. Com. (1956) 46 Cal.2d 76, 83, 293 P.2d 18.)

The issue of jurisdiction was not discussed below, and we are unable to determine from this record whether, as a matter of law, plaintiff/inmate was an "employee" of the county at the time of his injury. An employee injured through the negligence of his employer cannot ordinarily sue in tort. If plaintiff was an employee and was injured, as stated in the declarations, in the course of his employment, he may have a swift and simple remedy before the Workers' Compensation Appeals Board. The parties cannot waive this remedy and confer jurisdiction on the civil courts by stipulation or estoppel. (Summers v. Superior Court (1959) 53 Cal.2d 295, 298, 1 Cal.Rptr. 324, 347 P.2d 668.) It is therefore necessary to remand this matter to the trial court for a determination of this threshold issue.

Labor Code section 3351 provides in relevant part: " 'Employee' means every person in the service of an employer under any appointment or contract of hire or apprenticeship, express or implied, oral or written, whether lawfully or unlawfully employed...." The statute includes persons incarcerated in state penal or correctional institutions while engaged in assigned work, but says nothing about the status of a county inmate. The trial court has the duty to decide in the first instance whether it has jurisdiction of the subject matter and the parties. This process will involve the determination of jurisdictional facts and of jurisdictional questions of law. (Abelleira v. District Court of Appeal (1941) 17 Cal.2d 280, 302, 109 P.2d 942.) The trial court must determine whether a county inmate was an "employee" on a case-by-case basis using the general definition of employee. (See generally, Parsons v. Workers' Comp. Appeals Bd. (1981) 126 Cal.App.3d 629, 636, fn. 3, 179 Cal.Rptr. 88.) In making this decision the trial court should consider the following questions, inter alia: (1) Did the county require plaintiff to work as a condition of incarceration?; (2) Did plaintiff volunteer for the assignment?; and (3) What considerations were received if any, for example, monetary compensation, work-time credits, freedom from incarceration, etc.? (See, e.g., Morales v. Workers' Comp. Appeals Bd. (1986) 186 Cal.App.3d 283, 288-289, 230 Cal.Rptr. 575; Parsons, supra, 126 Cal.App.3d at p. 638, 179 Cal.Rptr. 88; Pruitt v. Workers' Comp. App. Bd. (1968) 261 Cal.App.2d 546, 550-551, 68 Cal.Rptr. 12.)

A separate issue arises concerning the pleading rule that the defendant must raise the exclusive workers' compensation remedy as an affirmative defense or waive the protection of the statute. (Doney v. Tambouratgis (1979) 23 Cal.3d 91, 98-99, 151 Cal.Rptr. 347, 587 P.2d 1160; Popejoy v. Hannon (1951) 37 Cal.2d 159, 173-174, 231 P.2d 484; see also Gillespie v. Rawlings (1957) 49 Cal.2d 359, 361, fn. 1, 317 P.2d 601.) Two Supreme Court cases, Doney and Popejoy (and perhaps the footnote in Gillespie ), stand for the proposition that in a common law action for damages defendant must affirmatively plead the exclusive remedy of workers' compensation. In Popejoy, supra, plaintiff was an employee of Sugarman, and Sugarman conducted a trucking business on defendants' premises while employed as a foreman in defendants' lumber company. Plaintiff sued for damages for personal injuries sustained on defendants' premises. Defendants argued that if plaintiff recovered from them for Sugarman's negligence under the doctrine of respondeat superior, they could recoup from Sugarman. The result would be that Sugarman, as plaintiff's employer, would be required to pay damages instead of compensation, contrary to the policy of the Workers' Compensation Act. The court held that defendants had to specifically plead the affirmative defense. Since defendants failed to plead their relationship as employers of Sugarman, the defense was lost. (37 Cal.2d at p. 173, 231 P.2d 484.)

In Doney, supra, plaintiff sued her employer for intentional assault after her first night of renewed work as a dancer/cocktail waitress. Her complaint did not mention or suggest that plaintiff and defendant had an employment relationship or that the injuries arose out of or were in the course of employment. Only after jury trial and a plaintiff's verdict for general...