Unpublished Disposition, 869 F.2d 1498 (9th Cir. 1987)

MEMORANDUM^* 

In this diversity action, Anthony E. Sciacca and Yolanda Sciacca (Sciaccas) appeal from the district court's granting of Arcwell Corporation's (Arcwell) summary judgment motion. We affirm.

* Statement of the Case

In September, 1984, Arcwell hired Lipsky as a welder/shipfitter. Arcwell had a contract to work on Naval aircraft carriers at the North Island Naval Air Station. Lipsky was assigned to work on behalf of Arcwell on three aircraft carriers located at the North Island Naval Air Station. Lipsky commuted to the job site from his El Cajon residence to North Island in a pickup truck owned by Karen Lee Kallett. Access to the North Island Naval Air Station was strictly controlled. In order to be admitted to the base, Lipsky was required to show a parking sticker and an identification card provided by Arcwell. Once he was on the base, Lipsky had an unrestricted choice of streets going to and coming from the aircraft carriers.

Lipsky worked seven days a week beginning at 6:00 a.m. until approximately 6:30 p.m. He was paid an hourly wage. In addition to the hourly wage, he received $3.00 a day for driving his personal vehicle to the North Island Naval Air Station. Arcwell also reimbursed him for bridge tokens he purchased in driving to the base.

There was a time clock on each aircraft carrier. Arcwell employees, including Lipsky, were required to clock in and out on the carrier to which they were assigned. In his deposition testimony, Lipsky stated that he never had occasion to work on two different ships on the same day. He also testified, however, that if he had been required to perform work on two different ships, he doubted that he would need to clock in and out at each job site.

On December 12, 1984, Lipsky was assigned to the aircraft carrier Kitty Hawk. Because the Kitty Hawk was to be taken out for sea trials, Arcwell equipment as well as tools belonging to its employees had to be taken off the ship. At the end of his shift at approximately 6:30 p.m., Lipsky left the Kitty Hawk and walked to his pickup truck. He did not clock out because the time clock had been removed in anticipation of the Kitty Hawk's departure. Lipsky drove the truck near the carrier. There he loaded onto the truck personal tools and Arcwell equipment he had checked out from the main tool room. Lipsky testified that these tools included 1) a "tig torch" which is the size of "a small coil of rope" used for welding, 2) a "flow meter" which is "the size of a regulator for any kind of gas that comes out of a bottle," and 3) a "stinger" which is the size of "a 20-foot piece of rope rolled up" used in the stick welding/arc welding process.

During his deposition, Lipsky testified that he intended to return Arcwell's equipment to the company yard in San Diego. The deposition reflects the following colloquy:

Q. When was your--when had you intended to return the Arcwell tools to the Arcwell yard?

A. The incident totally altered what--I don't even really know if I was going to go by the shop or not. But after what had happened, you know, everything has changed.

Q. When did you return the Arcwell tools?

A. I don't really recall now.

Q. Did you ever return them?

A. Oh, yes, I'm sure that I took them back, but I don't remember if it was the next day or a week later or--I'd have to go look at the records.

It was Arcwell's policy that tools checked out to its employees be returned in a reasonable time after the completion of a project. The employees were not required, however, to return the tools immediately.

At 7:00 p.m., after loading the tools and equipment, Lipsky drove away from the Kitty Hawk. Although it was dark, he did not turn on his headlights. A short distance from the aircraft carrier, Lipsky struck Mario Sciacca as he darted out into the roadway. According to testimony, Sciacca was not using a crosswalk. Sciacca died from the injuries sustained in the accident.

On November 7, 1985, Sciacca's parents filed a complaint in the United States District Court for the Southern District of California. On May 11, 1987, Arcwell filed a motion for summary judgment contending that Lipsky was not acting within the scope of his employment at the time of the collision. On May 27, 1987, the district court issued an order granting Arcwell's motion for summary judgment pursuant to Federal Rule of Civil Procedure 56(c). On June 9, 1987, the Sciaccas filed a timely notice of appeal from the order granting summary judgment in favor of Arcwell.

II

A. Scope of Employment and Foreseeability.

The Sciaccas contend that the district court erred in granting summary judgment because Lipsky was acting within the scope of his employment at the time the accident occurred. The Sciaccas argue that we should determine that Lipsky was acting within the scope of his employment at the time of the accident for two reasons: 1) he was still on the job site, and 2) he was performing a special errand for Arcwell as evidenced by the fact he received an allowance for travel expenses and he was carrying Arcwell tools in his truck. The Sciaccas argue that proof of these factors demonstrates that Arcwell is vicariously liable under the doctrine of respondeat superior. In support of this theory, the Sciaccas rely on the following language from a recent California Supreme Court case describing respondent superior liability:

Under the doctrine of respondeat superior, an employer is vicariously liable for his employees' torts committed within the scope of the employment. This doctrine is based on 'a rule of policy, a deliberate allocation of risk. The losses caused by the torts of employees, which as a practical matter are sure to occur in the conduct of the employer's enterprise, are placed upon that enterprise itself, as a required cost of doing business.' [Citations omitted.]

Perez v. Van Groningen & Sons, Inc., 41 Cal. 3d 962, 967 (1986).

The Sciaccas assert that the risks inherent in the conduct of Arcwell's activities at the North Island Naval Air Station made the traffic accident foreseeable. They argue that knowledge of the presence of its employees at the North Island Naval Station was sufficient to put Arcwell on notice that the negligent operation of a vehicle by one if its employees in going to the aircraft carrier and returning home could result in a traffic accident.

We review independently and non-deferentially a district court's grant of summary judgment. Turner v. McMahon, 830 F.2d 1003, 1007 (9th Cir. 1987), cert. denied, 109 S. Ct. 59 (1988). In reviewing a summary judgment, we view the evidence in the light most favorable to the nonmoving party and determine whether the district court correctly found that no genuine issues of material fact existed and that the district court properly applied the relevant substantive law. Landreth v. United States, 850 F.2d 532, 534 (9th Cir. 1988). In diversity cases, forum state law controls substantive issues. Nelson v. International Paint Co., 716 F.2d 640, 643 (9th Cir. 1983).

Under the California law of respondeat superior, an employer is liable for an employee's torts committed within the scope of employment. Perez, 41 Cal. 3d at 967. An employer is not liable, however, for tortious conduct committed by an employee while he or she is going to or coming from work. Henderson v. Adia Services, Inc., 182 Cal. App. 3d 1069, 1073 (1986).

The Sciaccas argue that Arcwell is liable under the doctrine of respondeat superior because Lipsky was still on the job site when the negligent conduct occurred. They contend that under the facts presented in this matter, the job site was the entire North Island Naval Air Station, and not merely the Kitty Hawk where Lipsky was working the day of the accident. They argue that because access was strictly controlled, Lipsky never would have been on the North Island Naval Air Station at the time of the accident but for his Arcwell employee sticker and I.D. card. They also assert that because Lipsky was required to work on "different ships at different locations," the whole naval base was his job site.

The Sciaccas' argument that Lipsky committed his wrongful act within the "zone of employment," as that term is used in California Workers' Compensation cases, is not persuasive. The concept of "zone of employment" is not a part of California tort law. California Workers' Compensation cases are instructive but not controlling in determining tort liability. Munyon v. Ole's, Inc., 136 Cal. App. 3d 697, 702-3 (1982). In Munyon, the California Court of Appeals rejected the appellant's attempt to rely upon Workers' Compensation cases to support the contention that the defendant acted within the scope of employment when the accident occurred. Id. The Munyon court reasoned that:

Worker's compensation cases can be helpful in determining vicarious liability of the employer for torts of the employee, but they are not controlling.... Thus we conclude that the cases cited by the plaintiffs interpreting the words 'arising out of and occurring in the course of employment' for the purpose of determining liability under the workers' compensation laws, although helpful for some reference purposes, are not determinative in the interpretation of the words 'acting within the scope of employment' under the doctrine of respondeat superior. Scope of employment defines a more restricted area of employee conduct than the customary phrase 'arising out of and in the course of employment.' An employee can suffer an injury that is compensable under workers' compensation laws and at the same time not be within the scope of employment under the doctrine of respondeat superior.

Id. (emphasis added) (citations omitted). More recently, in Perez, the California Supreme Court stated:

[A]lthough worker's compensation cases can be helpful in determining the employer's vicarious liability for its employee's torts [citation omitted], they are not controlling precedent when liability is predicated upon respondeat superior principles' [citation omitted].

Perez, 41 Cal. 3d at 967, n. 2.

The record does not demonstrate that Lipsky was in the "zone of employment" at the time of the accident, as that term is used in California's Workers' Compensation Law. In Freire v. Matson Navigation Company, 19 Cal 2d 8 (1941), the California Supreme Court held that the Workmen's Compensation Act covered accidents that occurred on the employer's premises or the necessary means of access. Id. at 10-11. The Freire court held that a janitor injured on a bulkhead was within the "zone of employment" under the Workmen's Compensation Act. Id. The California Supreme Court rejected the employee's argument that under the "going and coming rule" he was not at his job site when struck by an automobile owned by his employer. The California Supreme Court concluded that the employee was limited to his remedy under the Workmen's Compensation Act. Id. at 9-10.

In this matter, under the "zone of employment" theory, the job site would include the aircraft carriers on which Lipsky worked, the piers to which the ships were moored, and the bulkheads immediately in front of the piers, but not the roads within the North Island Naval Air Station that provide access to those carriers. Because there is no genuine issue of fact regarding the location of the accident, and the undisputed evidence shows that Lipsky was not at his job site on the Kitty Hawk, the district court did not err in rejecting the Sciaccas' argument that Lipsky was within the "zone of employment" when he struck Mario Sciacca.

The Sciaccas contend that even if we decide that Lipsky was not on the job site, the facts show that Lipsky was within the scope of his employment at the time of the accident because he was engaged in a "special errand." The Sciaccas assert that " [a]t the very least, there is a triable issue of fact as to whether under all of the circumstances, Lipsky was engaged in a 'special errand' at the time of this accident."

The Sciaccas base their "special errand" claim on two grounds: 1) Lipsky loaded his pickup truck with Arcwell tools with the intent to deliver them to the company yard and 2) Lipsky received reimbursement for his expenses in using the pickup truck in going to and coming from the job site.

a. Carrying Arcwell's Tools in the Truck

The Sciaccas attempt to argue that the "special errand" exception to the "going and coming" rule applies because Lipsky was returning Arcwell's tools at the time of the accident. The Sciaccas' reliance upon Tarasco v. Moyers, 81 Cal. App. 2d 804 (1947), for this proposition is misplaced. Tarasco involved a defendant who was required to return his tools each evening to the employer's headquarters. Id. at 809. Furthermore, the employee was furnished with a residence at the headquarters as part of his compensation. Id. at 807. The California Court of Appeal held that the employee was performing part of his employment duties when returning the tools. Id. at 810-811. The court stated:

The ordinary "going and coming" rule ... does not apply to the circumstances of this case. Where the contract of employment contemplated that the employee shall eat and sleep on the premises of the employer, under the recognized "bunkhouse rule" injuries received thereat incident to assigned duties may be deemed to have occurred in the course of employment.

Id. at 809-10.

The instant matter can be distinguished from Tarasco on three grounds. First, Lipsky did not live on the premises of the employer. Second, he was not required to return the company's tools at the end of each day. According to the declaration of Arcwell vice-president, Richard A. Keen, Arcwell did not require its employees to return tools at any specific time. Arcwell only required that an employee return company tools prior to termination or layoff. Prior to the accident, Lipsky had not been advised that he had been terminated or laid off. Lipsky had not been instructed by Arcwell to return the tools that night or the following day. Third, Lipsky was unsure whether he had intended to return the tools that night. In his deposition, Lipsky testified that he eventually returned the tools but could not recall whether he did so the next day or one week later.

Gurklies v. General Air Conditioning Corp., 91 Cal. App. 2d 734 (1949), appears to control our disposition of this issue. In Gurklies, the appellant contended that the employee was acting within the scope of his employment at the time of the accident because he "was carrying in his automobile some tools which were used in his work and which, ... he was required to safeguard wherever it was unpracticable to return them to his employer's premises at the end of the day and before going home." Id. at 735. The court found that

the transportation of the tools was a mere collateral incident to the purpose of the employee in transporting himself to his home, had no causal connection, direct or indirect, with the happening of the accident, and affords no grounds, in logic or justice, for holding the employer liable.

Id. at 738.

Based upon our independent review of the facts, we conclude that Lipsky was not performing a special errand and was not acting within the scope of his employment at the time of the accident. Lipsky was simply carrying his employer's tools to safeguard them and intended to return them sometime in the near future. Carrying Arcwell's tools in his truck on the night of the accident was merely incidental to his main purpose of going home.

The Sciaccas argue that if we conclude that the evidence does not affirmatively show as a matter of law that Lipsky was performing a special errand for his employer, then "at the very least there is a triable issue of fact" regarding whether Lipsky was engaged in a "special errand." We disagree. We will not reverse a district court's grant of a summary judgment motion based upon " [t]he mere existence of a scintilla of evidence in support of the plaintiff's position ... [T]here must be evidence on which the jury could reasonably find for the plaintiff." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252 (1986). We must inquire "whether reasonable jurors could find by a preponderance of the evidence that the plaintiff is entitled to a verdict." Id.

The Sciaccas failed to present any evidence in opposition to the motion for a summary judgment that Lipsky intended to return the tools the night of the accident. The Sciaccas have failed to demonstrate from the record that there is a triable issue of material fact concerning whether Lipsky was on a special errand at the time of the accident.

b. Travel Expenses

The Sciaccas also claim that the evidence shows that Lipsky was performing a special errand at the time of the accident because Arcwell reimbursed him for travel expenses.

The Sciaccas rely upon Hinman v. Westinghouse Electric Co., 88 Cal.Rptr 188 (1970), for this proposition. Their reliance is misplaced. The facts in Hinman are readily distinguishable. In Hinman, the evidence shows that an employee was paid "carfare" and travel time for going from his home to the job site. He did not go to the office before or after work. Id. at 189. In the instant matter, Lipsky was not paid for travel time. The California Supreme Court held in Hinman that "where, as here, the employer and employee have made the travel time part of the working day by their contract, the employee should be treated as such during the travel time...." Id. at 192.

Lipsky and Arcwell did not have a contract that made travel time part of the working day. Furthermore, Lipsky did not confer any benefit upon Arcwell by receiving reimbursement for bridge tokens or travel expense. In Caldwell v. A.R.B., Inc., 176 Cal. App. 3d 1028 (1986), the California Court of Appeals held that " ' [i]f, as the going and coming rule denotes, the trip between home and the fixed place of work is primarily for the employee's benefit, the fixed reimbursement allowance does not alter that fact.' " Id. at 1042 (quoting Harris v. Oro-Dam Constructors, 269 Cal. App. 2d 911, 917 (1969)).

Finally, there is no California authority to support a "travel expenses" exception to the going and coming rule. That concept was rejected in Caldwell, 176 Cal. App. at 1042. The employees in Caldwell received compensation as part of their checks each week for the use of their cars whether or not they actually drove their cars. The Caldwell court held that "the mere payment of a travel allowance ... does not reflect a sufficient benefit to defendant so that it should bear responsibility for plaintiff's injuries." Id.

The record demonstrates that Lipsky was not performing a special errand at the time of the accident on either theory advanced by the Sciaccas.

The Sciaccas also argue that Lipsky was acting within the scope of employment because he "follow [ed] the only practicable route of immediate ingress and egress to and from work."

The Sciaccas insist that Lipsky had not begun his trip home because he was traveling on the "necessary means of egress." This contention is based upon a misunderstanding of the California Supreme Court's holding in Freire, 19 Cal. 2d at 10-11. As discussed above, the injured employee in Freire was on the only means of access to the ship at the time of the accident. Id. Here, Lipsky was traveling on one of the several roads on the base that provide access to the Kitty Hawk. Lipsky testified as follows:

Q. How many times, approximately, prior to this incident, had you traveled in that same direction going home?

A. Not very often.

Q. How would you normally travel?

A. I would usually come out the other direction and go down this road here and then cut over to the main gate thoroughfare, rather than come this way by the ship. I would go out the back way and down the main thoroughfare to the main gate.

Q. Was there any reason that you were following this particular route?

A. Because I went by the ship after leaving the parking lot, rather than going directly out the gate.

Q. Okay. And nobody ever told you to restrict yourself to one particular path once you got into the naval station?

A. No.

Lipsky had knowledge of other roads and had used them on previous occasions but chose a different one the night of the accident. Therefore, the holding in Freire is inapplicable because Lipsky was not using "the only practicable route of immediate ingress and egress" at the time of the accident. Id.

The Sciaccas contend that Greydanus v. Industrial Accident Commission, 63 Cal. 2d 490 (1965), supports their theory that Lipsky was still on the job site when the accident occurred. Greydanus provides no support for this argument. In Greydanus, the California Supreme Court held that an employee was entitled to an award of Workmen's Compensation because of injuries suffered as he made a left turn off a two-lane highway onto his employer's dairy farm. Id. at 492-93. The Supreme Court concluded that these facts demonstrated that the applicant had entered the "area of his employment." Id. The Supreme Court noted that the employee was exposed to the risk of a traffic accident because the driveway was the only access to the dairy farm. Id. As discussed above, Lipsky was not so restricted in choosing his route in going to and coming from the Kitty Hawk.

The judgment of the district court is AFFIRMED.