Harris v. Trojan Fireworks Co.

120 Cal. App. 3d 157, 174 Cal. Rptr. 452, 1981 Cal. App. LEXIS 1818

Opinions

Opinion

GARST, J.

*

Statement of the Case

This is an appeal from an order dismissing plaintiffs’ complaint. The order of dismissal was entered at the request of defendant Trojan Fireworks Company after defendant’s demurrer to plaintiffs’ complaint had been sustained. Plaintiffs were granted 30 days to amend their complaint which they declined to do.

Statement of Facts

Since the appeal arose from an order dismissing the complaint, the facts stated are the facts which are alleged in the complaint.

The complaint is brought in four counts. The first count seeks damages for the wrongful death of James Harris and is brought by his parents. Counts 2 and 3 are brought by two minor children for their personal injuries and count 4 is brought by the mother of the minor children, for reimbursement of medical expenses which were incurred for medical care required for the children as a result of the injuries which they sustained. The children were riding in a car driven by James Harris when it was involved in an accident with a car driven by Anthony Barajas (Barajas).

Barajas was an employee of defendant Trojan Fireworks Company (Trojan).

On Friday, December 21, 1979, at the Trojan manufacturing plant in Rialto, commencing at noon and continuing until 4 p.m., Trojan held a Christmas party for its employees at which, it is alleged, the employees were caused to attend and caused to imbibe large quantities of alcoholic beverages.

Barajas attended the party and became intoxicated to the extent that his ability to drive an automobile was substantially impaired. Nevertheless, he attempted to drive home. In this attempt he was involved in the accident which resulted in the death of James Harris and injury to Dawn and Steven Griffin.

Plaintiffs allege the death of Harris and the injuries of Dawn and Steven Griffin were the result of the accident which was proximately caused by the Barajas’ advanced state of intoxication.

Contentions

Plaintiffs contend that their complaint is sufficient. They contend that Barajas’ intoxication, which was the proximate cause of the accident and resulting injuries and death, occurred in the course and scope of his employment so that under the doctrine of respondeat superior his employer, defendant Trojan, is liable for the resulting injuries and wrongful death.

Defendant urges that section 25602 of the Business and Professions Code bars any action against Trojan.¹ Trojan further contends that even if Business and Professions Code section 25602 is not to be interpreted as barring a cause of action based upon principles of respondeat superior, that the respondeat superior doctrine is not here applicable because the accident did not occur until after Barajas had left the defendant’s plant and was on his way home.

The issue presented is whether, as a matter of law, the complaint states facts which would support a judgment against Trojan under any theory of liability.

We are of the opinion that the demurrer should have been overruled.

Discussion

Respondeat Superior

As a general rule, a principal is responsible for the acts of his agent; however, an employer is often exempted from liability for injury caused to or by the employee while the employee is traveling to or from work.

This exemption of employer liability is often referred to as the “going and coming” rule. In workers’ compensation cases where the rule has been applied to relieve an employer or its carrier from liability resulting from injuries to the employee, it is often stated that the injury was not incurred “in the course and scope of the employment.” (2 Witkin, Summary of Cal. Law (8th ed. 1973) Workmen’s Compensation, § 116, p. 947.) In third party liability cases, the negligent employee’s employer is often excused from liability under the “going and coming” rule on the rationale that the employer should not be liable for acts of the employee which occur when the employee is not rendering service to his employer, (Robinson v. George (1940) 16 Cal.2d 238, 244 [105 P.2d 914]) or where the employer has no right of control over the employee (Harris v. Oro-Dam Constructors (1969) 269 Cal.App.2d 911, 915, 917 [75 Cal.Rptr. 544]).

However, there are numerous exceptions to the foregoing rules.² Defendant urges that we should not look to the rationale of workers’ compensation cases in determining an employer’s liability to third persons incurred by a negligent employee, because of the legislative directive favoring liberal construction of the workers’ compensation laws.³ Presumably this liberal construction is to accomplish a shifting of the loss to the employer, who is in a better position to distribute it and who should bear the burden of the loss as a cost of doing business. (See Harris v. Oro-Dam Constructors, supra, 269 Cal.App.2d 911, 915.) While it may be desirable that the employer compensate a negligent employee injured by his own negligence, it is equally desirable that the employer compensate an innocent third person injured by a negligent employee where the risk is inherent in or created by the employment. (See Rodgers v. Kemper Constr. Co., supra, 50 Cal.App.3d 608, 618.)

The propriety of applying the rationale of workers’ compensation cases to third party injury fact situations and vice versa is now well established. “Although the test of workmen’s compensation law of ‘arising out of and in the course of employment’ (Lab. Code, § 3600) is not identical with the test of ‘scope of employment’ under the respondeat superior doctrine [citations omitted], one of the principal considerations under compensation law is the benefit to the employer [citations omitted]; both fields of law are concerned with the allocation of the cost of industrial injury; and the two tests are closely related. [Citations omitted.]” (Hinman v. Westinghouse Elec. Co. (1970) 2 Cal.3d 956, 962 [88 Cal.Rptr. 188, 471 P.2d 988].)

The law now recognizes that the entire subject of torts is a reflection of social policies which fix financial responsibility for harm done. As we depart from liability for one’s own act or conduct and enter into the arena of vicarious liability, the quest of liability is frequently determined by who is best able to spread the risk of loss through the prices charged for its product or liability insurance. (Hinman v. Westinghouse Elec. Co., supra, 2 Cal.3d 956, 959-960; Fields v. Sanders (1947) 29 Cal.2d 834 [180 P.2d 684, 172 A.L.R. 525].) The underlying philosophy which holds an employer liable for an employee’s negligent acts is the deeply rooted sentiment that a business enterprise should not be able to disclaim responsibility for accidents which may fairly be said to be the result of its activity. (Ira S. Bushey & Sons, Inc. v. United States (2d Cir. 1968) 398 F.2d 167; see also Keeton, Conditional Fault in the Law of Torts (1959) 72 Harv.L.Rev. 401.)

In the case of Rodgers v. Kemper Consir. Co., supra, 50 Cal.App.3d 608, this court stated: “Under the modern rationale for respondeat superior, the test for determining whether an employer is vicariously liable for the tortious conduct of his employee is closely related to the test applied in workers’ compensation cases for determining whether an injury arose out of or in the course of employment. [Citations.] This must necessarily be so because the theoretical basis for placing a loss on the employer in both the tort and workers’ compensation fields is the allocation of the economic cost of an injury resulting from a risk incident to the enterprise.” (50 Cal.App.3d at p. 619.)

Thus, we think it can be fairly said that liability attaches where a nexus exists between the employment or the activity which results in an injury that is foreseeable.⁴ Foreseeable is here used in the sense that the employee’s conduct is not so unusual or startling that it would seem unfair to include the loss resulting from it among the other costs of the employer’s business. (Rodgers v. Kemper Constr. Co., supra, 50 Cal.App.3d at p. 619.)

Applying these standards of business purpose or business activity and foreseeability to the facts of the instant case it appears that there is sufficient connection between the employment or the employer’s Christmas party and the employee’s negligent act to justify holding the employer financially responsible for the injuries occasioned by the employee’s accident. Although the accident occurred away from the employer’s premises and presumably after work,⁵ we believe that the operable factors giving rise to the subsequent accident at least make a prima facie showing that the accident occurred in the course of Harris’ employment with defendant.

It may be inferred that the party was for the benefit of the employer. It may be argued that the purpose of the party was to improve employer/employee relations or to increase the continuity of employment by providing employees with the fringe benefit of a party, or to improve relations between the employees by providing them with this opportunity for social contact. (Boynton v. McKales, supra, 139 Cal.App.2d 777, 789.) That Trojan intended for Barajas to attend the party is indicated by the fact that the party was held at work during work hours and Barajas was paid to attend. That Trojan intended for Barajas to consume alcohol is implied from the fact that the employer furnished the alcoholic beverages and it is further alleged that Trojan, its agents and employees caused him to imbibe large quantities of alcoholic beverages. It is further alleged that he became intoxicated at the party, to such an extent that his ability to operate a motor vehicle was substantially impaired. The complaint further alleges that while in this intoxicated condition, and at his place of employment, he entered his automobile and commenced his attempt to drive home.

These facts are very similar to those found in Boynton v. McKales, supra, which defendant seeks to distinguish. The plaintiff in the Boynton case recovered a judgment against the employer of an intoxicated driver who struck the plaintiff while the employee was on his way home from a company banquet. Defendant attempts to distinguish the Boynton case by pointing to the fact that the company banquet in the Boynton case occurred after normal working hours thus requiring the employee to make an additional trip to and from the banquet, thus coming within the “special purpose” exception to the going and coming rule.⁶ Our reading of the Boynton case suggests to us that the pivotal consideration was not whether an extra trip was required to attend the banquet, but whether there was a sufficient business relationship between the employment and the banquet at which the defendant became intoxicated to hold the employer liable for the employee’s negligent driving. We offer the following quotation from the Boynton case: “The only decisive question is therefore whether the character of the banquet and the employer’s relation to it were such that Brooks’ attendance could be reasonably considered within the scope of his employment. If there is any substantial conflict in the evidence in this respect or conflicting inferences can reasonably be drawn from it such is a question of fact for the jury.” [Citations.] (Boynton v. McKales, supra, 139 Cal.App.2d 777, 790.)

We hold that plaintiffs have pleaded sufficient facts, which, if proved, would support a jury’s determination that Barajas’ intoxication occurred at the Christmas party and that his attendance at the party as well as his state of intoxication occurred within the scope of his employment. That he would attempt to drive home while still intoxicated and might have an accident was foreseeable as that term is used in Rogers v. Kemper Const. Co., supra, 50 Cal.App.3d 608, 618-619.⁷

Reversed.

Gardner, P. J., and Morris, J., concurred.

Assigned by the Chairperson of the Judicial Council.

1 Subdivisions (b) and (c) of section 25602 of the Business and Professions Code provide: “(b) No person who sells, furnishes, gives or causes to be sold, furnished, or given away, any alcoholic beverage pursuant to subdivision (a) of this section shall be civilly liable .to any injured person or the estate of such person for injuries inflicted on that person as a result of intoxication by the consumer of such alcoholic beverage.

“(c) The Legislature hereby declares that this section shall be interpreted so that the holdings in such cases as Vesely v. Sager (5 Cal.3d 153), Bernhard v. Harrah’s Club (16 Cal.3d 313) and Coulter v. Superior Court (21 Cal.3d 144) be abrogated in favor of prior judicial interpretation finding the consumption of alcoholic beverages rather than the serving of alcoholic beverages as the proximate cause of injuries inflicted upon another by an intoxicated person.”

Civil Code section 1714 provides: tt

“(b) It is the intent of the Legislature to abrogate the holdings in cases such as Vesely v. Sager (5 Cal.3d 153), Bernhard v. Harrah’s Club (16 Cal.3d 313), and Coulter v. Superior Court (21 Cal.3d 144) and to reinstate the prior judicial interpretation of this section as it relates to proximate cause for injuries incurred as a result of furnishing alcoholic beverages to an intoxicated person, namely that the furnishing of alcoholic beverages is not the proximate cause of injuries resulting from intoxication, but rather the consumption of alcoholic beverages is the proximate cause of injuries inflicted upon another by an intoxicated person.

“(c) No social host who furnishes alcoholic beverages to any person shall be held legally accountable for damages suffered by such person, or for injury to the person or property of, or death of, any third person, resulting from the consumption of such beverages.”

2 ln the field of workers’ compensation the case of Hinojosa v. Workmen’s Comp. Appeals Bd. (1972) 8 Cal.3d 150, 156 [104 Cal.Rptr. 456, 501 P.2d 1176], is illustrative. “[T]he so-called going and coming rule composes no formula of automatic application. We have explained that ‘this rule ... has long been recognized [to be] “subject to many exceptions” [citing cases]. Indeed, one writer in the field of workmen’s compensation has suggested that the exceptions have swallowed the rule. (See Horowitz, Note, 14 NACCA L.J. 36.)’ (Schreifer v. Industrial Acc. Com. (1964) 61 Cal.2d 289, 291 [38 Cal.Rptr. 352, 391 P.2d 832].) No less an authority than Dean Pound urged in 1954, ‘A rule which has developed at least six recognized exceptions since it was announced in England in 1908 is evidently, if not moribund, deserving of overhauling as a whole.’ (Pound, Current Article of Special Interest: Workmen’s Compensation (1954) 14 NACCA L.J. 394, 400.) Commentators have severely criticized it. [Fn. omitted.]”

In cases concerning liability to third persons injured by a negligent employee, courts have found many reasons to impose liability on the employer.

A judgment of nonsuit in favor of the employer was reversed where an employee who was hired to work in Yuma, Arizona, as a cement finisher, struck a bicyclist on his way back to his home in Pasadena, California. On occasion the negligent employee had brought equipment to the jobsite in Yuma in his truck at the employer’s request; however, at the time of the accident he was not transporting any supplies for his employer. He was, however, transporting a fellow employee whom he had hired at the employer’s request. Apparently it had been difficult to obtain cement finishers in Yuma, Arizona, and the employer had requested that he solicit people in Pasadena to come to work in Yuma. Also the employer had furnished gas to the employee for the trip home. Under these circumstances the court held that it was a jury question as to whether or not the trip incidentally or indirectly benefitted the employer so that liability would attach to the employer under the “special errand” exception. (Harvey v. D & L Construction Company (1967) 251 Cal.App.2d 48, 52 [59 Cal.Rptr. 255].)

A jury verdict in favor of two employees of a general contractor was sustained as against a subcontractor based upon an assault committed by the employees of the subcontractor on two employees of the general contractor. The assault occurred at a construction site approximately four hours after the subcontractor’s employees had ter-

minated their shift. Apparently the employees of the subcontractor had remained at the jobsite, and drank beer while they worked on the personal pickup of one of the employees. The employee of the general contractor was assaulted when he refused to give a ride on a bulldozer to one of the employees of the subcontractor. (Rodgers v. Kemper Constr. Co. (1975) 50 Cal.App.3d 608 [124 Cal.Rptr. 143].)

In Boynton v. McKales (1956) 139 Cal.App.2d 777 [294 P.2d 733], an order granting a new trial to the employer was reversed in a case where a verdict was rendered in favor of a third party injured by the employer’s intoxicated employee who was on his way home from a company banquet.

In Richards v. Metropolitan Life Ins. Co. (1941) 19 Cal.2d 236 [120 P.2d 650], a judgment of nonsuit in favor of an employer was reversed where a negligent insurance salesman, on his way to work, injured a third party. The evidence reflected that there were days when the insurance salesman would call on customers, sell policies, collect premiums, deliver policies, etc. before proceeding to work.

Similarly, liability of an employer to an innocent third party for an accident which occurred on an employee’s way to work was upheld in Brelend v. Traylor Eng. etc., Co. (1942) 52 Cal.App.2d 415 [126 P.2d 455]. In that case the employer had sent an employee to California from Pennsylvania to assist in the construction of a kiln. The employer drove, and on the way had an automobile accident, injuring plaintiffs. Travel and subsistence, expenses were paid by the employer while the employee was en route to California and the employer also paid the employee for use of the employee’s personal car while traveling to the jobsite.

3 Church v. Arko (1977) 75 Cal.App.3d 291, 299 [142 Cal.Rptr. 92]; Labor Code, section 3202.

4 In Bonetti v. Double Play Tavern (1954) 126 Cal.App.2d Supp. 848 [274 P.2d 571], the court upheld liability of the Double Play Tavern where the left fielder of a sponsored semiprofessional baseball team, angered at dropping a pop fly, threw the ball out of the field where it hit plaintiff on the head. There, the bar operator selected the manager of the team, furnished uniforms and equipment, and deducted the cost on income tax returns as business expense; however, the players were not otherwise compensated for playing on the team and in no real sense did an employer/employee relationship exist, nevertheless, it was the activity (sponsoring of the team) that led to the injury.

5 While the record reflects that the party occurred during work hours from 12 noon to 4 p.m., during which time Barajas was presumably paid for work, it is not clear whether his normal work day terminated at 4 p.m. when the party broke up or whether he was still on the payroll at 4:30 p.m. when the accident actually occurred.

6 If any distinction were to be made between the facts of the Boynton case and the instant case, the instant case would cut in favor of imposing liability. Here, it is alleged that the party occurred at the employer’s factory, during working hours, and the employee was paid to attend and encouraged to drink excessively.

In the Boynton case, attendance at the party was optional; the party occurred after work, employees were not paid to attend, and presumably the party took place at some location other than the employee’s place of employment.

7 Our holding is not based upon Trojan’s furnishing of alcohol to Barajas as a basis of negligent conduct on the part of Trojan. The furnishing of alcohol by Trojan is merely one of the facts appropriately considered in determining if Barajas’ intoxication occurred within the scope of his employment at Trojan. (Boynton v. McKales, supra, 139 Cal.App.2d 777, 790.)