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Filed 10/17/11; pub. and mod. order 11/1/11 (see end of opn.)
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
AUGUSTUS VOGT et al.,
Plaintiffs and Appellants,
HERRON CONSTRUCTION, INC.,
Defendant and Respondent.
APPEAL from the Superior Court of Riverside County. Gary B. Tranbarger,
Julie A. Duncan for Plaintiffs and Appellants.
Bevins, Hellesen & Glauser, Kevin B. Bevins; Law Offices of Roxanne
Huddleston and Roxanne Huddleston for Defendant and Respondent.
Plaintiff Augustus Vogt worked for the concrete subcontractor on a large
construction project. Herron Construction, Inc. (Herron) was the framing contractor. An
employee of Herron had parked his personal pickup truck close to where Vogt’s
employer was about to start pouring cement. Vogt therefore asked Herron’s employee to
move his truck. The employee complied, but in the process, he ran over Vogt.
Vogt sued Herron for personal injury on a respondeat superior theory. The trial
court granted summary judgment for Herron, on the ground that Herron’s employee had
not been acting in the course and scope of his employment.
We must reverse. There was evidence that, by moving his truck, Herron’s
employee furthered the overall construction of the project; the resulting risk of injury was
inherent to the enterprise. Moreover, even assuming that he had the subjective purpose
of preventing damage to his own truck, moving the truck was necessary to his comfort,
convenience, and welfare while on the job and thus still within the scope of his
Herron was the framing subcontractor on a construction project in Riverside.
Jesus Cruz was an employee of Herron. His job duties did not include driving.
On October 31, 2007, Cruz parked his own personal pickup truck at the worksite.
No one had told him where to park. There was no designated parking area for
subcontractors’ employees. Employees typically parked near wherever they were
assigned to work that day.
Performance Concrete (Performance) was the concrete subcontractor on the
project. Vogt was an employee of Performance. When he noticed Cruz’s truck, he
thought, “Hey, we got to move th[at] because we can’t get the cement truck in.” He then
asked Cruz to move his truck; he explained that Performance was about to start pouring
It was “normal” for construction workers to be asked to move their cars and other
vehicles at a jobsite. As Vogt later explained, “It . . . happens all the time on a job
site . . . . We’re not going to pour if a car’s there because we don’t want the liability of
splashing the paint.”
When Cruz moved his truck, he ran over Vogt, injuring him.
In 2008, Vogt filed this action against Herron, asserting causes of action for
negligence and for injuries arising out of the operation of a motor vehicle.
Vogt’s wife, Keri Vogt, was also a plaintiff, claiming loss of consortium, and she
is also an appellant. However, because her claim is dependent on her husband’s, we will
disregard her separate status. (See Hoff v. Vacaville Unified School Dist. (1998) 19
Cal.4th 925, 931, fn. 1.)
Originally, Cruz and the general contractor, Lyle Parks, Jr., Inc. (Parks), were also
defendants. The trial court, however, granted summary judgment in favor of Parks. Vogt
settled with Cruz and voluntarily dismissed him.
Herron filed a motion for summary judgment, arguing that it was not liable on a
respondeat superior theory because Cruz was not acting in the course and scope of his
employment when the accident occurred. In his opposition, Vogt argued that there was a
triable issue of fact with respect to whether Cruz was acting in the course and scope of
his employment. The trial court granted the motion. Accordingly, it entered judgment in
favor of Herron and against Vogt.
Vogt contends that there was a triable issue of fact with respect to whether, when
Cruz ran over him, Cruz was acting within the course and scope of his employment.
Standard of Review.
“A trial court properly grants summary judgment where no triable issue of
material fact exists and the moving party is entitled to judgment as a matter of law.
[Citation.]” (Merrill v. Navegar, Inc. (2001) 26 Cal.4th 465, 476.)
“[I]n moving for summary judgment, a ‘defendant . . . has met’ his ‘burden . . . if’
he ‘has shown that one or more elements of the cause of action . . . cannot be established,
or that there is a complete defense to that cause of action. Once the defendant . . . has
met that burden, the burden shifts to the plaintiff . . . to show that a triable issue of one or
more material facts exists as to that cause of action or a defense thereto. . . .’ [Citation.]”
(Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 849, second ellipsis added.)
“We review the trial court’s decision de novo . . . . [Citations.]” (Johnson v. City of
Loma Linda (2000) 24 Cal.4th 61, 65-66.)
General Respondeat Superior Principles.
“Under the theory of respondeat superior, employers are vicariously liable for
tortious acts committed by employees during the course and scope of their employment.
[Citation.]” (Lobo v. Tamco (2010) 182 Cal.App.4th 297, 301 [Fourth Dist., Div. Two].)
“The nexus required for respondeat superior liability . . . is to be distinguished
from ‘but for’ causation. That the employment brought tortfeasor and victim together in
time and place is not enough. [The California Supreme Court has] used varied language
to describe the nature of the required additional link . . . : the incident leading to injury
must be an ‘outgrowth’ of the employment [citation]; the risk of tortious injury must be
‘“inherent in the working environment”’ [citation] or ‘“typical of or broadly incidental to
the enterprise [the employer] has undertaken”’ [citation].
“ . . . California courts have also asked whether the tort was, in a general way,
foreseeable from the employee’s duties. Respondeat superior liability should apply only
to the types of injuries that ‘“as a practical matter are sure to occur in the conduct of the
employer’s enterprise.”’ [Citation.] The employment, in other words, must be such as
predictably to create the risk employees will commit . . . torts of the type for which
liability is sought.
“ . . . [T]he tortious occurrence must be ‘a generally foreseeable consequence of
the activity.’ In this usage, . . . foreseeability ‘merely means that 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.] Th[is] foreseeability test is useful ‘because it reflects the central
justification for respondeat superior [liability]: that losses fairly attributable to an
enterprise — those which foreseeably result from the conduct of the enterprise — should
be allocated to the enterprise as a cost of doing business.’ [Citation.]” (Lisa M. v. Henry
Mayo Newhall Memorial Hospital (1995) 12 Cal.4th 291, 298-299, fn. omitted.)
“‘[T]he cases . . . have established a general rule of liability with a few exceptions
for cases where the employee has substantially deviated from his duties for personal
purposes.’ [Citation.]” (Perez v. Van Groningen & Sons, Inc. (1986) 41 Cal.3d 962,
968.) “Thus, if the employee ‘inflicts an injury out of personal malice, not engendered
by the employment’ [citation] or acts out of ‘personal malice unconnected with the
employment’ [citation], or if the misconduct is not an ‘outgrowth’ of the employment
[citation], the employee is not acting within the scope of employment. Stated another
way, ‘[i]f an employee’s tort is personal in nature, mere presence at the place of
employment and attendance to occupational duties prior or subsequent to the offense will
not give rise to a cause of action against the employer under the doctrine of respondeat
superior.’ [Citation.] In such cases, the losses do not foreseeably result from the conduct
of the employer’s enterprise and so are not fairly attributable to the employer as a cost of
doing business.” (Farmers Ins. Group v. County of Santa Clara (1995) 11 Cal.4th 992,
Application of Respondeat Superior to These Facts.
In applying these principles to this case, we begin with the fact that Vogt asked
Cruz to move his truck for a work-related purpose — so Performance could pour cement.
In Herron’s view, the fact that Vogt had a work-related purpose is irrelevant. It argues
that Cruz had the non-work-related purpose of preventing damage to his personal vehicle.
At least for purposes of summary judgment, however, it is reasonably inferable that Cruz
was, at a minimum, combining his personal business with that of his employer.
Cruz did not testify to why he moved his truck. However, Vogt testified that he
asked Cruz to move his truck for several reasons. First, it was blocking the cement truck.
Second, Vogt was concerned about liability — “[W]e don’t want the liability of splashing
the paint.” Third, he asked “as a courtesy” to Cruz. Vogt also testified that this kind of
thing “happens all the time on a job site . . . . We’re not going to pour if a car’s
there . . . .”
From this, it was inferable that Cruz moved his truck at least in part to facilitate
the pouring of the cement and thus to advance the construction of the overall project. It
could be argued that Herron’s particular “enterprise” was limited to framing; it did not
encompass other trades, such as concrete. This view, however, is too narrow. A
subcontractor whose employees interfere with timely performance by other
subcontractors is not long for the construction industry. The evidence established that the
need to move one’s personal vehicle when it got in the way of another subcontractor was
an “outgrowth” of the employment, “inherent in the working environment,” and “typical
of or broadly incidental to the [employer’s] enterprise” for respondeat superior purposes.
At oral argument, counsel for Herron claimed that we were creating a duty of
cooperation — i.e., we were requiring the employee of one subcontractor to comply with
the directions of another subcontractor, to the detriment of the employer’s ability to
control its own employees. Not at all. Subcontractors (and their employees) may or may
not have a duty to cooperate; we express no opinion on that. Our point is that
subcontractors have an interest in cooperating. Thus, by agreeing to move his truck,
Cruz was furthering the interests of his employer, as well the interests of Vogt’s
employer. Nor are we in any way diminishing Herron’s ability to control its employees.
Herron could have told its employees that, if another subcontractor asked them to move
their personal vehicles — even to facilitate construction — they were to contact a
supervisor and ask permission first. But the very absurdity of such a requirement
highlights the fact that it was in Herron’s interest for its employees to cooperate
Alternatively, even if the evidence established that Cruz’s sole subjective reason
for moving the truck was to prevent damage to it, respondeat superior would still apply.
“‘[T]he fact that an employee is not engaged in the ultimate object of his employment at
the time of his wrongful act does not preclude attribution of liability to an employer.’
[Citation.] Thus, acts necessary to the comfort, convenience, health, and welfare of the
employee while at work, though strictly personal and not acts of service, do not take the
employee outside the scope of employment. [Citation.] Moreover, ‘“where the
employee is combining his own business with that of his employer, or attending to both
at substantially the same time, no nice inquiry will be made as to which business he was
actually engaged in at the time of injury, unless it clearly appears that neither directly nor
indirectly could he have been serving his employer.” [Citations.]’ [Citation.]” (Farmers
Ins. Group v. County of Santa Clara, supra, 11 Cal.4th at p. 1004.)
It must be remembered that the accident occurred on the worksite, during the
workday. Employees were allowed to park their personal vehicles on the worksite;
typically, they parked as close as they could to wherever they happened to be working.1
It was foreseeable that one subcontractor would have to ask employees of other
subcontractors to move their personal vehicles. Indeed, as already noted, the evidence
showed that this “happen[ed] all the time . . . .” Accordingly, it was hardly unusual or
startling that there might be a car accident. Even assuming that, in each such instance,
the employee subjectively was just trying to protect his or her vehicle, moving the vehicle
would be an “act necessary to the comfort, convenience, health, and welfare of the
employee while at work.”
Specifically, Jeffrey Meyer, a representative of the general contractor,
testified that it was “common practice for employees of subcontractors to park near
where they were assigned to work that day[.]” Herron did not object to this testimony.
Vogt also sought to draw the further inference that, because Cruz parked close to
where Performance was scheduled to pour cement, he must have been assigned to work
there. Herron objected to this inference as speculative. It now argues that the trial court
should have sustained this objection. As we do not consider the inference to be material,
we do not decide this question.
While we have not found any case precisely on point, we have found several that
are instructive. In DeMirjian v. Ideal Heating Corp. (1954) 129 Cal.App.2d 758, the
defendant’s employees were forbidden to smoke on the shop floor. However, they were
allowed to smoke in the washroom. One employee in particular went to the washroom
four or five times a day to smoke. (Id. at p. 761.) One day, while he was on the way to
the washroom for a smoke break, he stopped to fill his cigarette lighter with paint thinner,
which the employer made available for work-related purposes. In the process, he
accidentally pressed the button of the lighter, setting fire to the paint thinner (id. at
p. 762) and causing damage to the building, which was owned by the plaintiffs (id. at
The appellate court reversed a directed verdict for the employer. It held that a jury
could have found that the employee was acting in the course and scope of his
employment. (DeMirjian v. Ideal Heating Corp., supra, 129 Cal.App.2d at pp. 764-774.)
It explained, in part: “Acts necessary to the comfort, convenience, health, and welfare of
the employee while at work, though strictly personal to himself and not acts of service,
do not take him outside the course of his employment. Cessation of work for eating,
drinking, warming himself, and similar necessities are necessary incidents of
employment. In these and other conceivable instances the employee ministers unto
himself, but in a sense these acts contribute to the furtherance of his work. ‘That such
acts will be done in the course of employment is necessarily contemplated, and they are
inevitable incidents. Such dangers as attend them, therefore, are incident dangers. At the
same time injuries occasioned by them are accidents resulting from the employment.’
[Citations.]” (Id. at p. 765.) “Although [the employee’s] deviation or deflection from
going directly to the washroom was for a personal reason it was committed so he could
later enjoy the co[m]fort of smoking in the washroom, where it was permitted. His main
purpose was to pursue an act which was necessarily contemplated by defendant and
which therefore was within his course of employment.” (Id. at p. 772.) Here, similarly, a
jury could find that, even if Cruz’s subjective reason for moving his truck was personal,
the fact that subcontractors’ employees would want to move their vehicles — and thus
the risk that an accident would result — was foreseeable, in light of the circumstances at
It is interesting to compare DeMirjian to a case on which Herron relies, Bailey v.
Filco, Inc. (1996) 48 Cal.App.4th 1552. There, the employee left the workplace during a
paid break to buy cookies for herself and another employee to eat while on duty. On the
way, she got into a car accident. (Id. at p. 1557.) The employer was aware that
employees had made one or more previous “‘cookie run(s).’” (Id. at p 1558, fn. 1.)
A jury found that the employee was not acting within the course and scope of her
employment. (Bailey v. Filco, Inc., supra, 48 Cal.App.4th at p. 1557.) The appellate
court affirmed, holding that respondeat superior did not apply. (Id. at pp. 1562-1568.)
However, it expressly distinguished DeMirjian: “The DeMirjian court noted that ‘acts
necessary to the comfort, convenience, health, and welfare of the employee while at
work . . . do not take [the employee] outside the course of his employment.’ [Citation.]
DeMirjian is limited because the employee went to the washroom at his place of
employment to use the facilities.” (Bailey, at p. 1564.) It concluded that, in the case
before it, the employee’s “deviation” was substantial because “[she] did more than just
stop her work for a minute to take a bite of a cookie. She did more than simply walk to
[the employer]’s break room to eat cookies. During a 10-to-15-minute break, she got in
her own car and drove off the work premises onto a 4-lane thoroughfare to purchase
cookies to eat back at work.” (Ibid.)
Here, as already noted, Cruz did not drive off the work premises. Even assuming
that he was trying to protect his truck, that implicated his comfort and convenience while
at work. Moreover, moving his truck did not involve any delay analogous to a 10 to 15
minute break. And finally, unlike in both DeMirjian and Bailey, here the employee’s act
of moving his truck, even if performed for subjectively personal purposes, did in fact
serve the employer’s overall enterprise; the risk of a vehicle accident was a foreseeable
result of that enterprise.
The facts in Avila v. Standard Oil Co. (1985) 167 Cal.App.3d 441 are even more
closely analogous. There, Hernandez worked as a gas station attendant; Meza was his
trainee. Hernandez’s supervisor had given him permission to keep his personal
motorcycle at the station. On his days off, he and Meza were fixing it up. However, the
supervisor had told Hernandez not to work on personal vehicles during business hours.
One day, during business hours, Hernandez asked Meza to go buy some wire that he
needed for his motorcycle. Meza, driving a personal truck, got into an accident and
injured the plaintiffs. (Id. at pp. 444-445; see also id. at p. 447.)
The trial court granted summary judgment for the employer. (Avila v. Standard
Oil Co., supra, 167 Cal.App.3d at p. 444.) The appellate court reversed; it held that there
were triable issues of fact with respect to whether Hernandez and Meza were acting
within the course and scope of their employment. (Id. at pp. 446-449.) This was true
even though their job duties did not require them to drive a vehicle. Moreover, this was
true even if the employer prohibited them from repairing their personal vehicles while on
duty. (Id. at p. 448.) “The distinction between minor deviations and major or substantial
departures from employment depends upon whether the conduct engaged in was
foreseeable as that term is used in the context of respondeat superior. The test of
foreseeability is whether in the particular business setting involved, the 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.” [Citation.]’ [Citation.]”
(Ibid.) “The jury should be permitted to determine whether it was foreseeable these two
employees would perform work on personal automobiles and that they might leave the
premises to carry out such purposes. [Citations.]” (Ibid.)
Herron relies on a later case, Baptist v. Robinson (2006) 143 Cal.App.4th 151.
There, an employee of a winery lived on the winery premises. He was allowed to make
his own personal wine; his employer had decided to stop allowing him to do so but had
not told him yet. To transport some grapes he had bought, he took a bin from the winery,
after work hours and without permission, and loaded it into his personal truck. The bin
fell off his truck and caused an accident. (Id. at pp. 156-157; see also id. at pp. 162-163.)
The appellate court held that the winery was entitled to summary judgment. (Id. at
pp. 159-169.) It distinguished Avila, noting that, in the case before it, (1) the employee
took the bin outside working hours, (2) the employer did not know he was taking it, and
(3) the employer had decided to terminate the employee’s personal winemaking, so it
could not be argued that “personal winemaking was part of the exchange of benefits of
his employment.” (Id. at p. 169.)
This case is like Avila and unlike Baptist. Here, employees were allowed to park
their personal vehicles at the worksite during working hours. Thus, it was foreseeable
that they would have to move them when they got in the way of construction. As already
discussed, it is inferable that this served the employer’s purposes. At a minimum,
however, it is inferable that the opportunity to move one’s personal vehicle to prevent
damage to it damage was “part of the exchange of benefits of [the] employment.”
Finally, in Avila, the employee was affirmatively prohibited from working on his
personal motorcycle during working hours; here, however, it appears that employees
were allowed to move their personal vehicles during working hours. Thus, the facts here
present, if anything, an even stronger case for the application of respondeat superior.
We therefore conclude that the trial court erred by granting summary judgment for
The judgment is reversed. Vogt is awarded costs on appeal against Herron.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
AUGUSTUS VOGT et al.,
Plaintiffs and Appellants,
HERRON CONSTRUCTION, INC.,
ORDER GRANTING REQUEST
FOR PUBLICATION AND
Defendant and Respondent.
[NO CHANGE IN JUDGMENT]
The request filed October 25, 2011, for publication of the opinion is GRANTED.
The opinion meets the standard for publication as specified in California Rules of Court,
rule 8.1105(c). It is ORDERED that the opinion filed in this matter on October 17, 2011,
be certified for publication.
It is further ordered that the opinion be modified as follows:
In the fifth sentence of the first full paragraph on page 14, the word “damage”
appears twice. The second “damage” is deleted, so that the sentence reads:
At a minimum, however, it is inferable that the opportunity to move one’s
personal vehicle to prevent damage to it was “part of the exchange of
benefits of [the] employment.”
Except for this modification and the change in publication status, the opinion
remains unchanged. This modification does not effect a change in judgment.
CERTIFIED FOR PUBLICATION