Henriksen v. City of Rialto

20 Cal. App. 4th 1612, 25 Cal. Rptr. 2d 308, 93 Cal. Daily Op. Serv. 9262, 93 Daily Journal DAR 15871, 1993 Cal. App. LEXIS 1248

• Court: California Court of Appeal
• Decided: December 14, 1993
• Docket: E008993
• Status: Published

Opinions

Opinion

RAMIREZ, P. J.

Ray Henriksen appeals from the trial court’s grant of summary judgment in favor of the City of Rialto (hereinafter Rialto) on his cross-complaint arising out of an accidental injury inflicted by Henriksen, an off-duty police officer, on another off-duty officer. Appellant argues that Rialto was obligated as a matter of law to indemnify him for any damages recovered against him. We agree with the trial court and we affirm.

Facts

On January 29, 1989, Chris Masotto filed suit against appellant Ray Henriksen and Rialto to recover damages for injuries Masotto suffered on March 26, 1988, when the service revolver in the possession of appellant Henriksen accidentally discharged and wounded Masotto. In his complaint Masotto set forth two theories of negligence against Rialto: first, that the city negligently failed adequately to screen applicants for police positions and that it hired and gave a weapon to Henriksen who was unsuitable and who negligently used the weapon in such a manner as to inflict a gunshot wound upon plaintiff; and, second, that the city failed adequately to train and supervise Henriksen.¹

Rialto answered the complaint denying liability. Henriksen also filed an answer in which he denied liability and stated that he was employed by Rialto, that he was acting within the course and scope of his employment at the time the injury occurred, and that if he was found to be negligent Rialto should be held responsible under the doctrine of respondeat superior.

At that same time Henriksen filed a cross-complaint ágáinst Rialto for indemnification for any damages awarded against Henriksen and for the costs of his defense. Rialto denied the allegations in the cross-complaint and then filed a motion for summary judgment on the cross-complaint. As the basis for the motion Rialto argued that, under Government Code section 995.2, Rialto was not obligated to provide a defense to the civil action brought against Henriksen if Rialto determined that the act or omission complained of was “not within the scope of [Henriksen’s] employment . . . .” Similarly, under Government Code section 825, subdivision (a), Rialto would be required to indemnify Henriksen for judgment entered against him only if the judgment was based on “an injury arising out of an act or omission occurring within the scope of his employment. . . .”

Rialto argued that under the uncontroverted facts of the case as established at the deposition of Henriksen, the actions which served as the basis for the complaint against Henriksen were, as a matter of law, not within the scope of Henriksen’s employment as a police officer.

Declaration and deposition testimony of Henriksen established that at the time of the incident Henriksen was employed by Rialto in the police department and had been assigned as a supervising sergeant with the department for approximately three years. One of his functions was to be in charge of firearms training.

On the evening of March 25, 1988, Henriksen concluded his shift at approximately 11:30 p.m. A short time later Henriksen and another officer arranged to meet at a local establishment called the B & B Rancho. Before going to the B & B Rancho Henriksen took off his gun belt and radio and put on a tan cover-up windbreaker over his uniform shirt. Henriksen acknowledged that under written department rules, an off-duty officer was required to remove not only the gun belt but also the uniform shirt worn by that officer.

Henriksen stated his belief that there was a written department policy which encouraged off-duty officers to carry their service weapons although no such written policy is included in the record in this appeal. Upon leaving the police station Henriksen placed his service weapon, a .45-caliber automatic pistol, in his waistband. Henriksen arrived at the B & B Rancho sometime before midnight where he socialized with other officers and with plaintiff Chris Masotto until the B & B Rancho closed about 1 a.m. on March 26. Henriksen stated that he had been drinking light beer at the B & B Rancho and he believed that he had consumed three beers during the time he was there. He stated that he did not consider himself intoxicated at the time he left the B & B Rancho, and that he did not easily become intoxicated.

When the B & B Rancho was about to close, Henriksen and others agreed to chip in some money to buy beer and to meet again at the house of plaintiff Masotto. Henriksen drove the few blocks to Masotto’s house, arriving just after Masotto but before Masotto had entered his house. Henriksen and Masotto had been friends and had socialized together for many years. As Henriksen was walking through the front yard of Masotto’s house he began to move his gun from his waistband where it had slid down and had become uncomfortable. Masotto was walking ahead of him. As Henriksen moved his gun, it discharged, wounding Masotto in the arm.

Following a brief hearing the trial court granted the summary judgment motion of Rialto and judgment was entered in favor of the cross-defendant in that proceeding. In its minute order the court stated: “The Court finds that there is no triable issue as to any material fact. Specifically it is found that Cross defendant Hendrickson [íz'c] was not acting within the scope of his employment.” Cross-complainant Henriksen filed this appeal.

Discussion

On appeal Henriksen does not contend that there are disputed issues óf material fact; the sole issue raised in this appeal is whether the trial court correctly ruled, as a matter of law, that Henriksen was not acting within the scope of his employment at the time Masotto was injured.² “Whether a tort was committed within the scope of employment is ordinarily a question of fact; it becomes a question of law, however, where the undisputed facts would not support an inference that the employee was acting within the scope of his employment. [Citation.]” (John R. v. Oakland Unified School Dist. (1989) 48 Cal.3d 438, 447 [256 Cal.Rptr. 766, 769 P.2d 948].)

Henriksen argues that California law imposes on police officers an obligation to act in emergency situations whether on or off duty and imposes a penalty for failure to do so. (Pen. Code, §§ 410, 142, 726.) Another provision of the law “exempts police officers from the prohibition on carrying loaded firearms.” (Pen. Code, § 12031.) Henriksen concludes that since Rialto expected the loaded weapon to be on his person, Rialto is responsible under the doctrine of respondeat superior for the accidental discharge.

The California Supreme Court has recently considered the doctrine of respondeat superior in the context of abuse of authority by an on-duty police officer. (Mary M. v. City of Los Angeles, supra, 54 Cal.3d 202.) The court there held the city liable for a rape committed by a police officer while on duty. Despite the factual differences between that case and the one before us, the court’s analysis in that case is instructive here.

The court reviewed the doctrine of respondeat superior: “Under the doctrine of respondeat superior, an employer may be held vicariously liable for torts committed by an employee within the scope of employment. [Citation.] . . . The doctrine is a departure from the general tort principle that liability is based on fault. [Citation.] It is ‘ “a rule of policy, a deliberate allocation of a risk.” ’ [Citations.] Respondeat superior is based on ‘ “a deeply rooted sentiment” ’ that it would be unjust for an enterprise to disclaim responsibility for injuries occurring in the course of its characteristic activities. [Citations.]” (Mary M. v. City of Los Angeles, supra, 54 Cal.3d at p. 208.)

Having recognized the policy underpinnings of the doctrine, the court then articulated three policy reasons for imposing liability under the doctrine: “(1) to prevent recurrence of the tortious conduct; (2) to give greater assurance of compensation for the victim; and (3) to ensure that the victim’s losses will be equitably borne by those who benefit from the enterprise that gave rise to the injury. [Citation.]” (Mary M. v. City of Los Angeles, supra, 54 Cal.3d at p. 209.)

The court went on to state that “For the doctrine of respondeat superior to apply, the plaintiff must prove that the employee’s tortious conduct was committed within the scope of employment. [Citation.] ‘A risk arises out of the employment when “in the context of the particular enterprise an employee’s conduct is not so unusual or startling that it would seem unfair to include the loss resulting from it among other costs of the employer’s business. [Citations.] In other words, where the question is one of vicarious liability, the inquiry should be whether the risk was one ‘that may fairly be regarded as typical of or broadly incidental’ to the enterprise undertaken by the employer. [Citation.]” ’ ” (Mary M. v. City of Los Angeles, supra, 54 Cal.3d at p. 209.)

A review of significant cases in which employers have been held liable under the doctrine of respondeat superior reveals a number of variables which are evaluated by courts in reaching their decisions. In Mary M. v. City of Los Angeles, supra, 54 Cal.3d 202, the court held the city liable for a rape committed by an on-duty police officer who stopped the plaintiff for erratic driving, gave her a field sobriety test, then drove her to her house and forcibly raped her. (Id., at p. 207.) The court acknowledged that the rape was a specific violation of official duties and did not in any way benefit the city, but nonetheless held the city vicariously liable after it determined that the offense was within a series of acts that were authorized by the employer and that it was accomplished by using the authority the officer had as a result of his employment. (Id., at pp. 218, 219.)

In Perez v. Van Groningen & Sons, Inc. (1986) 41 Cal.3d 962 [227 Cal.Rptr. 106, 719 P.2d 676], the court found the defendant employer vicariously liable for injuries received by plaintiff when he fell off the back of a disking machine being run by one of the defendant’s employees notwithstanding the fact that the employee had been told not to let anyone ride on the machine. The court concluded that “As long as it is clear that at the time of the injury the employee was following his employer’s instructions to disk the orchard, the fact that he was not authorized to take a passenger is immaterial.” (Id., at p. 969.)

Liability has not been limited to situations in which an employee was on duty at the time the injury occurred. In Rodgers v. Kemper Constr. Co. (1975) 50 Cal.App.3d 608 [124 Cal.Rptr. 143], liability was found under respondeat superior for injuries inflicted by off-duty employees of defendant construction company in the course of a fight. The evidence showed that the employees had been drinking alcohol after hours on the defendant’s jobsite and with the tacit approval of defendant’s supervisors, that the participants in the fight had not known each other prior to the employment relationship, and that “. . . the dispute which was the proximate cause of the assault arose out of the employment.” (Id., at pp. 621-622.)

In Childers v. Shasta Livestock Auction Yard, Inc. (1987) 190 Cal.App.3d 792 [235 Cal.Rptr. 641], the court determined that an after-hours automobile accident occurred in the scope of employment once it was established that the employee who drove the car off the road had been drinking beer and hard liquor provided by the employer and on the employer’s auction yard. The court agreed with plaintiff’s contentions that the negligent employee “consumed alcohol in the scope of her employment, that [her] consumption created a risk of danger, and that the risk was a proximate cause of the accident and of plaintiff’s injuries, so that [defendant] is properly liable . . . .” (Id., at pp. 802-803.)

The case before us contains none of the factors deemed critical in the cited cases: the incident did not occur during working hours, was not accomplished by use of Henriksen’s authority as a police officer, did not occur in the course of acts that Henriksen was carrying out under his employer’s instructions or on his employer’s behalf. The injury to Masotto did not occur after Henriksen had drunk alcohol provided by the employer or permitted by the employer on the employer’s premises. Even the relationship between Henriksen and Masotto predated Henriksen’s employment by many years and did not arise out of the employment relationship.

The only factor which would weigh in favor of the imposition of vicarious liability in the present case is the fact that Henriksen was carrying a gun which had been issued to him by his employer and which he was authorized to carry when he was off duty so that it would be available for his use in emergency situations.

Henriksen argues that the risk of harm in the present case was the risk associated with carrying a weapon, and that, since Rialto stood to benefit from the fact that Henriksen had the gun available for emergency use, Rialto should also beat the risk of harm resulting from the presence of the gun. We recognize the social benefit which may follow from having armed and trained police officers in the community during their off-duty hours. However, we do not agree with Henriksen’s conclusion that any harm resulting from his possession of the weapon must therefore be borne by Rialto.

The risk which existed in the present case was the risk inherent in having an officer carry a gun while engaged in activities other than active law enforcement. In an effort to minimize that risk Rialto provided special weapons training to its police officers so that they would know how to handle their weapons both on and off duty.

The question presented here is, to the extent the risk of harm coüld not be eliminated, who should bear the cost of the risk and any resulting injury? In our opinion a weapon should be treated like another potentially dangerous instrumentality, the automobile. Decisions construing the scope of employment in automobile accident cases involving government employees have held that in order to hold the employer liable, the employee must be driving the automobile on employer business and not for the employee’s own benefit. (See Brindamour v. Murray (1936) 7 Cal.2d 73 [59 P.2d 1009] [city not liable for injuries resulting from negligent driving of city car by police captain who was involved in accident as he drove home with his wife from dinner]; cf. Megowan v. City of Los Angeles (1936) 7 Cal.2d 80 [59 P.2d 1012] [use of city-owned vehicle to drive president of the board of fire commissioners on inspection tour was authorized municipal purpose permitting recovery against city for injuries inflicted in car accident involving city employee who was on his way to pick up commissioner].)

We believe that those decisions appropriately delineate the scope of employment of a police officer who is carrying a weapon while he is off duty. As with automobiles, when weapons are used for law enforcement purposes, liability for harm which results would properly extend to the employer. The mere presence of the weapon, however, without more is not sufficient to impose liability on the employer for all of the employee’s actions. We conclude that in the present case Henriksen was not acting within the scope of employment at the time of Masotto’s injuries.

Having reached that conclusion, we must still consider the policy factors enumerated above to see whether they would compel a different result under the facts presented.

The first of the policy objectives identified by the court in Mary M. v. City of Los Angeles, supra, 54 Cal.3d 202, is “to prevent recurrence of the tortious conduct.” (Id. at pp. 214-215.) In the present case that factor would argue against imposition of liability on Rialto. Requiring Rialto to indemnify Henriksen might help to prevent recurrence of the conduct complained of if it induced Rialto to reverse its policy of permitting off-duty officers to carry loaded weapons. The negative impact of such a policy would be apparent because off-duty officers would be unable to appropriately respond to emergencies. Furthermore, requiring indemnification would provide no incentive to the off-duty officers to take more care in handling their weapons in casual social situations. Requiring Rialto to indemnify Henriksen might have the effect of improving officer training in handling of weapons to minimize incidents such as the one before us, but in view of Henriksen’s status as officer in charge of firearms training it is unlikely that further training would have altered the result in the present case.

The second policy reason cited by the Supreme Court was “to give greater assurance of compensation for the victim.” That factor is particularly inapplicable to the case before us because the question of compensating the victim is not directly presented in this appeal; the issue is only one of indemnification of an individual who might be held liable for the injury. The relationship between indemnification of Henriksen and compensation to Masotto is one on which we can only speculate, and we decline to do so.

The final policy consideration is “the appropriateness of spreading the risk of loss among the beneficiaries of the enterprise.” (Mary M. v. City of Los Angeles, supra, 54 Cal.3d at p. 216.) We have discussed the nature of the risk in the present case and the fact that Rialto, by training its officers, has taken steps to reduce the risk of harm. Moreover, the risk in the present case was substantially altered by Henriksen’s activities once he was no longer on duty, in particular by his consumption of alcohol. In Childers v. Shasta Livestock Auction Yard, Inc., supra, 190 Cal.App.3d 792, and Rodgers v. Kemper Constr. Co., supra, 50 Cal.App.3d 608, the consumption of alcohol was identified as a significant fact bearing on the nature of the risk and the finding of liability. The unpredictable consequences of alcohol consumption necessarily changed the evaluation of whether “in the context of the particular enterprise an employee’s conduct is ... so unusual or startling that it would seem unfair to include the loss resulting from it among other costs of the employer’s business.” (Rodgers v. Kemper Constr. Co., supra, 50 Cal.App.3d at p. 619.)

In those cases, consumption of alcohol which was condoned by the employer led to consequences which were deemed to be “foreseeable” by the employer. In the present case consumption of alcohol changed the nature of the risk facing Rialto in permitting its off-duty officers to carry their weapons. To require indemnification in the present case would place Rialto in the position of assuming an unacceptable risk of liability for the actions of its off-duty officers.

In our view, the enhanced risk was not one which should be borne by the public. The officers themselves, when they make the decision to socialize after hours, are the ones in a position to take the necessary safeguards to mitigate any increased risk; if they fail to do so they, not the public, must bear the loss.

We conclude that the trial court correctly determined, under the facts presented here and accepted by the parties, that Henriksen was not acting within the scope of his employment, and we affirm.

Disposition

The summary judgment entered in favor of cross-defendant and respondent City of Rialto is affirmed. Costs on appeal to be borne by cross-complainant and appellant Henriksen.

Dabney, J., concurred.

1 We note that although Henriksen was named in the complaint, no causes of action were alleged against Henriksen as an individual.

2 The dissent charges that the majority has failed to approach the review of grant of a motion for summary judgment under the appropriate procedural rules, and that we should first have addressed the issue of whether there existed any triable issues of material fact.

In our view the obligation to raise and identify triable issues of material fact lies with the parties to the acti.on and is not the responsibility of the appellate court. “It is the duty of appellants’ counsel, not of the courts, ‘by argument and the citation of authorities to show that the claimed error exists.’ [Citation.]” (Sprague v. Equifax, Inc. (1985) 166 Cal.App.3d 1012, 1050 [213 Cal.Rptr. 69].) In the present case appellant argues that the trial court’s error consisted of an erroneous ruling on an issue of law; appellant does not contend that there existed triable issues of material fact. We have accepted the case as presented by appellant and have addressed the issue raised by him.

The dissent further contends that the majority has failed to distinguish between the doctrine of respondeat superior and the indemnification statutes under which the trial court was asked to rule. (See dis. opn., post, at p. 1623.) We recognize that under respondeat superior an employer may be held directly liable for the acts of an employee under a theory of vicarious liability, while under the statutes at issue in this case an employer may be required to indemnify an employee for a judgment arising out of the employee’s acts; the two doctrines are conceptually and procedurally distinct.

In the present case, however, the similarities between the two doctrines are more significant than the differences. “Under the doctrine of respondeat superior, an employer may be held vicariously liable for torts committed by an employee within the scope of employment.” (Mary M. v. City of Los Angeles (1991) 54 Cal.3d 202, 208 [285 Cal.Rptr. 99, 814 P.2d 1341].)

As we have stated, the same issue is central to the analysis of the obligation of a government entity to provide a defense for and to indemnify an employee under Government Code sections 995 and 825: The critical issue under the indemnification statutes is whether the employee’s actions, which resulted in the injury for which the indemnification is sought, occurred within the scope of employment. Although the analysis of “scope of employment” in the majority opinion relies primarily on cases decided under a theory of respondeat superior, the analysis is equally applicable to the indemnification issue before us in this appeal.