Sherar v. B & E Convalescent Center

• Decision Date: 19 June 1975
• Citation: 122 Cal.Rptr. 505,49 Cal.App.3d 227
• Court: California Court of Appeals Court of Appeals
• Parties: Warren SHERAR, Individually, Kevin Lee Sherar, a minor by his Guardian Ad Litem, Warren Sherar, Plaintiffs and Appellants, v. B AND E CONVALESCENT CENTER, dba Gardena Convalescent Center, a California Corporation, Defendant and Respondent. Civ. 45430.

Page 505

122 Cal.Rptr. 505

49 Cal.App.3d 227

Warren SHERAR, Individually, Kevin Lee Sherar, a minor by his Guardian Ad Litem, Warren Sherar, Plaintiffs and Appellants, v. B AND E CONVALESCENT CENTER, dba Gardena Convalescent Center, a California Corporation, Defendant and Respondent.

Civ. 45430.

Court of Appeal, Second District, Division 2, California.

June 19, 1975.

Rehearing Denied July 11, 1975.

Hearing Denied Aug. 13, 1975.

Roger A. Kander by Lloyd B. Hartman, Long Beach, for plaintiffs and appellants.

Morgan & Roper by Thomas B. Cummings, Los Angeles, for defendant and respondent.

COMPTON, Associate Justice.

Eileen Wampler was a nurse's aide employed by B & E Convalescent Center. At approximately 6:50 in the morning on August 16, 1972, she was backing out of her driveway preparatory to driving to her place of employment. Plaintiffs Warren and Kevin Sherar who were riding on a motorcycle, collided with Eileen Wampler's automobile and suffered injury.

Plaintiffs commenced an action against Eileen Wampler and her employer, B & E Convalescent Center (employer). Employer moved for summary judgment and upon documents which were properly before the court the motion was granted on the grounds that at the time of the accident Eileen Wampler was not in the course and scope of her employment, leaving no triable issue of fact as to the liability of the employer.

The evidence presented no factual dispute. Eileen Wampler's regular duty hours were 7:00 a.m. to 3:00 p.m., and all of her duties were performed at one location--the B & E Convalescent Center at 14819 South Vermont in the City of Gardena. She was never required to travel to any other location to perform any services incident to her employment. No arrangements had ever been made to have her travel time considered as a part of her working day nor was she at any time compensated for travel to and from work.

The entire basis for plaintiffs' contention that the doctrine of respondeat superior would, under the circumstances, impose liability on the employer for the negligence of Eileen Wampler, was the fact that from time to time she was subject to special call to report for work at times other than her regular hours of work although it is conceded that on the date of the accident she was going to her regular work shift.

We conclude as a matter of law that the simple fact that an employee may be subject to call to duty during hours other than their normal duty hours does not without more make their travel to and from work an activity which is within the scope of their employment.

Plaintiffs concede that generally an employee who is going to or coming from work is not, during such times, considered to be acting in the course or scope of his employment. This is the so-called 'going and coming' rule. (Hinman v. Westinghouse Elec. Co., 2 Cal.3d 956, 88 Cal.Rptr. 188, 471 P.2d 988.) The court in Hinman did recognize certain exceptions to the general rule, none of which are present in the case at bench. The underlying basis of those exceptions is the presence of an incidental benefit to the employer which is not common to the regular commuting of the general members of the work force.

Plaintiffs characterize the exception which they contend is applicable to this case as a so-called 'special call' exception. Such characterization, however, is merely an attempt to bring the situation of Eileen Wampler under the exceptions recognized by Hinman, supra. The contest here then is the 'going and coming' rule versus the 'benefit to the employer' rule.

In Harris v. Oro-Dam Constructors, 269 Cal.App.2d 911, at pp. 916--917, 75 Cal.Rptr. 544, at p. 548, the application of the 'going and coming' rule was analyzed as follows: 'First, it is usually invoked when the employee performs services 'at or in a particular plant or upon particular premises . . ..' Second, it has particular application to vehicle accidents of employees Whose jobs do not embrace driving.' (Emphasis added.)

In Huntsinger v. Glass Containers Corp., 22 Cal.App.3d 803, 99 Cal.Rptr. 666, the Court of Appeal undertook to analyze the exceptions to the 'going and coming' rule in light of the underlying philosophy of the doctrine of respondeat superior. Relying on ...