Vellis v. Albertson

• Citation: 72 Cal.Rptr. 841,267 Cal.App.2d 285
• Court: California Court of Appeals
• Decision Date: 08 November 1968
• Parties: Calliope Alexandrides VELLIS, Plaintiff and Appellant, v. Earl David ALBERTSON, Earl David Albertson, Jr., Earl Albertson Farm, Oak Grove Ranch, Defendants and Respondents. Civ. 24950.

Page 841

72 Cal.Rptr. 841

267 Cal.App.2d 285

Calliope Alexandrides VELLIS, Plaintiff and Appellant, v. Earl David ALBERTSON, Earl David Albertson, Jr., Earl Albertson Farm, Oak Grove Ranch, Defendants and Respondents.

Civ. 24950.

Court of Appeal, First District, Division 3, California.

Nov. 8, 1968.

Rehearing Denied Dec. 6, 1968.

Heisler & Stewart, Carmel, for appellant.

Hoge, Fenton, Jones & Appel, Monterey, for respondents.

HAROLD C. BROWN, Associate Justice.

This is an appeal from the judgment of dismissal following the granting of defendants' motion for summary judgment.

Plaintiff on this appeal claims that the trial court erred in ruling that under the facts the proceedings provided by the Workmen's Compensation Act were the sole remedy available to employee injured by a fellow employee.

Decedent died from injuries received when he fell from and under a tractor driven by his fellow employee, Earl David Albertson, Jr., and owned by his employer, Earl David Albertson. Plaintiff-appellant subsequently filed this action for damages for the wrongful death of her son against both Albertsons and concurrently filed a death claim before the Industrial Accident Commission. The latter claim was heard before a referee who made findings and award in favor of plaintiff on February 28, 1967.

In plaintiff's action for damages the charging allegations of the complaint alleged in part as follows: 'That on the 8th day of August, 1966, said EARL DAVID ALBERTSON, JR., In accordance with the permission and authorization of the other Defendants, so negligently, recklessly and carelessly operated the said farm tractor over the road of said farm on which tractor and the balance weight thereof said deceased was transported; that the said deceased fell and said tractor went over him crushing his body, causing his subsequent death. (Emphasis added.)

'As a direct and proximate result of the negligence, carelessness and recklessness of the Defendants and each and all of them, Plaintiff has been deprived of the care, comfort, companionship, society, support * * * of decedent. * * *'

Defendants' answer denies negligence and alleged the affirmative defenses of contributory negligence, assumption of risk and that plaintiff had exhausted her remedies by the proceedings before the Industrial Accident Commission.

Defendants filed a motion for a summary judgment and filed in support of that motion a declaration which related the facts and evidence presented at the Industrial Accident Commission hearing. Plaintiff also filed a declaration but in opposition to the motion for summary judgment. This declaration was also limited to the Industrial Accident Commission referee's summary of the evidence.

The trial court granted defendants' motion for summary judgment.

Plaintiff contends that it was error to grant defendants' motion for summary judgment as the complaint and declaration in opposition to the motion raised triable issues of fact, i.e., (1) that the defendant co-employee's action evidenced a reckless disregard for the safety of the deceased and, therefore, plaintiff's action came within the exception set forth in Labor Code section 3601(a)(3); and (2) that defendant was not acting within the scope of his employment when the accident occurred and that under Labor Code section 3852 the action for damages against the co-employee could be maintained.

The law to be applied in summary judgment is well settled. The court in Stationers Corp. v. Dun & Bradstreet, Inc., 62 Cal.2d 412, 417, 42 Cal.Rptr. 449, 452, 398 P.2d 785, 788, said: 'The matter to be determined by the trial court in considering such a motion is whether the defendant (or the plaintiff) has presented any facts which give rise to a triable issue. The court may not pass upon the issue itself. Summary judgment is proper only if the affidavits (or evidence obtained by discovery proceedings) in support of the moving party would be sufficient to sustain a judgment in his favor and his opponent does not by affidavit show such facts as may be deemed by the judge hearing the motion sufficient to present a triable issue. The aim of the procedure is to discover, through the media of affidavits, whether the parties possess evidence requiring the weighing procedures of a trial. In examining the sufficiency of affidavits filed in connection with the motion, the affidavits of the moving party are strictly construed and those of his opponent liberally construed, and doubts as to the propriety of granting the motion should be resolved in favor of the party opposing the motion. Such summary procedure is drastic and should be used with caution so that it does not become a substitute for the open trial method of determining facts. [Citations.]' (See also Wilson v. Bittick, 63 Cal.2d 30, 34--35, 45 Cal.Rptr. 31, 403 P.2d 159.)

Labor Code section 3601 embodies the legislative intent to make workmen's compensation the exclusive remedy for injury or death of an employee against his employer or fellow employee. Section 3601 provides in part: '(a) Where the conditions of compensation exist, the right to recover such compensation, pursuant to the provisions of this division is, except as provided in Section 3706, the exclusive remedy for injury or death of an employee against the employer or against any other employee of the employer acting within the scope of his employment, Except that an employee, or his dependents in the event of his death, Shall, in addition to the right to compensation against the employer, have a right to bring an action at law for damages against such other employee, as if this division did not apply, in the following cases:

'(1) When the injury or death is proximately caused by the willful and unprovoked physical act of aggression of such other employee.

'(2) When the injury or death is proximately caused by the intoxication of such other employee.

'(3) When the injury or death is proximately caused by an act of such other employee which evinces a reckless disregard for the safety of the employee injured, and a calculated and conscious willingness to permit injury or death to such employee.' (Emphasis added.) It is not contended that defendant's liability comes within the exceptions of section 3601(a)(1) and (2) of the Labor Code as there was no evidence of willful intent to injure or that defendant driver was intoxicated.

Plaintiff's charging allegations in her complaint also fail to state a cause of action under subdivision (3) of section 3601(a) of the Labor Code. The words 'so negligently, recklessly and carelessly' drove the tractor so as to cause decedent's death are insufficient to characterize the defendant's action as 'reckless disregard for the safety of the employee injured' or 'a calculated and conscious willingness to permit injury or death to such employee.' (Lab.Code, § 3601(a)(3).)

Plaintiff's declaration in opposition to the motion for summary judgment likewise fails to allege any facts which would tend to create an issue under Labor Code section 3601(a)(3). This declaration consisted of a statement of the evidence produced at the Industrial Accident Commission hearing and was summarized by the referee. The pertinent parts of that summary are as follows: 'EARL DAVID ALBERTSON, JR. was called by the applicant, sworn and testified substantially as follows: He is seventeen. On August 8, 1966, he was working on his father's farm driving a Ford 2,000 industrial tractor with a back-up forklift and a counterbalance on the front. At the time of the accident at around 5:00 p.m. he was driving the tractor at from five to ten miles per hour. He had met the decedent on his father's fields where decedent had been picking apricots and witness was hauling boxes in and out of the field with the tractor forklift. The counterbalance function is to balance the heavy loads on the forks. The counterbalance is flat, square, and 30 inches wide. Shortly before the accident the decedent Asked for a ride in the field just before the 5:00 p.m. quitting time. [Emphasis ours.] The tractor was stopped as he was loading. It was one-quarter of a mile from the highway and decedent asked for a ride to the corner of the property one-tenth of a mile away. At first witness said no because he had to work late that night so he could go to the fair the next day. The decedent hopped on the counter-balance. There was nothing witness could do and he was going past the point where the decedent wanted to go anyway. He then drove the tractor to the unloading point at the corral and started toward the property line where decedent would get off and walk to get his ride home. When they stopped at the corral for the thirty seconds to unload he did not tell the decedent to get off. The accident occurred 200 feet from the property line on a dirt road between two of his father's fields. Decedent was seated on the counterbalance to the front with his lunch pail on his left. He thinks the decedent dropped his lunch pail and was reaching for it when he fell to his left front and was run over by both wheels of...