Driscoll v. Harmon

601 P.2d 1051, 124 Ariz. 15, 1979 Ariz. LEXIS 359

• Court: Arizona Supreme Court
• Decided: October 15, 1979
• Docket: 14165
• Status: Published

Opinions

STRUCKMEYER, Vice Chief Justice.

Charles W. Driscoll appeals from a judgment of the Superior Court dismissing his suit against Lance A. Harmon and Rosita Harmon, his wife. Jurisdiction was acquired pursuant to Rule 19(e), Rules of Civil Appellate Procedure, 17A A.R.S. Reversed.

On July 22, 1972, the appellee, Lance A. Harmon, was an enlisted man on active duty with the United States Air Force at Luke Air Force Base. He had finished a duty shift for the day and was driving on the base to his off-base residence in his personal motor vehicle when he struck Charles W. Driscoll, a civilian employee of the General Electric Corporation. Driscoll was crossing the street from a parking lot to a work building when he was struck by the motor vehicle being driven by Harmon. Vehicular access to and from the base is controlled by the United States Air Force Police and Air Force Base administrative agencies. This action was brought by Driscoll against Harmon to recover for the damages arising out of Harmon’s alleged negligent operation of his motor vehicle.

Harmon moved in the trial court to dismiss Driscoll’s complaint. The motion was based on the premise that Harmon was an enlisted man on active duty in the United States Air Force, acting within the scope of his employment, and that the action was barred by the Federal Drivers Act, 28 U.S.C. § 2679(b). By § 2679(b), a suit against the United States under the Tort Claims Act shall be the exclusive remedy against a federal employee based upon a claim arising out of the employee’s operation of a motor vehicle within the scope of his employment. See, e. g., Henderson v. United States, 429 F.2d 588 (10th Cir. 1970).

Driscoll appealed, and the State Court of Appeals rendered its decision, Driscoll v. Harmon, 116 Ariz. 332, 369 P.2d 274, reversing the trial court’s dismissal of the action. The Court of Appeals remanded to the Superior Court for a determination as to whether Harmon was acting within the scope of his employment at the time of the accident. If so, it directed that the complaint be dismissed; but if Harmon was not within the course of his employment, the lower court should proceed to trial on the issue of Harmon’s personal negligence.

The trial court found on Harmon’s motion for summary judgment that he was acting within the scope of his employment as an employee of the United States Government at the time of the accident. From that judgment, the present appeal has been perfected, the sole issue being whether Harmon on the facts of the case was acting within the scope of his employment for the United States at the time his vehicle struck Driscoll.

Harmon’s position is that since he was on a street on a United States Air Force Base, he was within the principle of going and coming, a rule applied in workmen’s compensation cases to compensate for injuries which occur in the course of the employee’s employment. The rule provides that an employee “going to and from work” is covered by workmen’s compensation while he is on the employer’s premises. 1 Larson, Workmen’s Compensation Law § 15. It is an outgrowth of the principle that course of employment should extend to any injuries which occurred at a point where the employee was within range of dangers associated with the employment. Id. However, we are not convinced that the going and coming rule has application here.

First, injuries incurred by a workman arising out of travel to and from work where not on the employer’s premises are not compensable as occurring in the course of employment in Arizona. Pauley v. Industrial Commission, 109 Ariz. 298, 508 P.2d 1160 (1973); City of Phoenix v. Industrial Commission, 104 Ariz. 120, 449 P.2d 291 (1969); Ebasco Services v. Bajbek, 79 Ariz. 89, 284 P.2d 459 (1955); Strauss v. Industrial Commission, 73 Ariz. 285, 240 P.2d 550 (1952). We do not consider that travel to and from work on what are essentially public streets at the Air Force Base, even though title to the streets is held in the name of the United States, is within the range of dangers to be associated with the duties of enlisted personnel in the Air Force. The mere happenstance that the fee of the street over which Harmon was traveling was in his employer, the United States, is not such a fact which should stretch the going and coming rule to cover this case. We find no distinction between travel over public streets owned by the United States and those owned by the state or any other body politic.

Second, the going and coming rule was largely judicially developed in order to provide compensation to workmen for injuries which were incurred while within the range of dangers associated with their employer’s premises. There can therefore be no reason to apply it to a situation where the recipient of the benefits of the rule is not an injured workman.

Finally, we consider that the liability of the employer, here the United States, should be governed by the application of principles customarily applied to determine the liability of the master for acts of his servants, namely, the doctrine of respondeat superior. Fundamentally, the doctrine is that the act of an employee during the course of his employment is legally the act of the employer. See Larsen v. Arizona Brewing Co., 84 Ariz. 191, 325 P.2d 829 (1958). Whether it has application in any given case depends upon whether the relationship of master and servant exists at the time a wrongful act was committed. Ray v. Tucson Medical Center, 72 Ariz. 22, 33, 230 P.2d 220 (1951).

In State v. Superior Court, 111 Ariz. 130, 524 P.2d 951 (1974), we held that a State National Guardsman while traveling to a training session was not under the control of the State and the State was not liable for his negligence, saying:

“The law is well established in this state that certain facts must appear before an employer can be held liable on the theory of respondeat superior for the negligent acts of his employee occurring in the operation of a motor vehicle. The facts must establish that there is a relationship of employer and employee and that the tortious act of the employee must have occurred during the course and scope of his employment. Hansen v. Oakley, 76 Ariz. 307, 263 P.2d 807 (1953). It is equally well settled that an employer is not liable for the tortious acts of his employee while the employee is going to or returning from his place of employment — the so-called ‘going and coming rule.’ Pauley v. Industrial Commission, 109 Ariz. 298, 508 P.2d 1160 (1973); Burns v. Wheeler, 103 Ariz. 525, 446 P.2d 925 (1968); Butler v. Industrial Commission, 50 Ariz. 516, 73 P.2d 703 (1937); 57 C.J.S. Master and Servant § 507d(4); 52 A.L.R.2d 287, 303.” Id. at 132, 524 P.2d at 953. (Emphasis added.)

We hold that in the instant case Harmon was not acting within the course of his employment with the United States after he had finished his duty shift and was going to his off-base residence in his personal vehicle.

Judgment reversed.

HAYS, HOLOHAN and GORDON, JJ., concurring.