 |
 |
to fill out a simple form to connect to Personal Injury Lawyers in your area.
|
|
|
|
|
Brassinga v. City of Mountain View8/20/1998
995) 9 Cal.4th 1055, 1067; Hoppmann v. Workers' Comp. Appeals Bd. (1991) 226 Cal.App.3d 1119, 1125; Barragan v. Workers' Comp. Appeals Bd. (1987) 195 Cal.App.3d 637, 649.) " he reality of the situation, not the parties' characterization of the relationship, controls the outcome." (Hoppmann v. Workers' Comp. Appeals Bd., supra, 226 Cal.App.3d at pp. 1126-1127.)
It was undisputed that Brassinga was receiving hourly wages in return for acting as a role player for the May 15 Regional Team training exercises. Although the evidence disclosed that Brassinga could, but did not, decline his assignment by Palo Alto to this duty or Worley's request for his services during the training exercises, this did not establish that Brassinga was a "volunteer." The mere fact that an employee is given the freedom to decline a particular assignment does not mean that, when the employee accepts an assignment and engages in compensated work, he or she is transformed into a volunteer. Slavish obedience is not a requisite element of an employment relationship.
It is immaterial that Worley characterized his request for role players as seeking "volunteers." As Hoppmann explained, it is the reality of the relationship rather than the characterization of it by the parties that controls. The group of role players who responded to Worley's request included both Palo Alto and Mountain View employees. Unquestionably, the Mountain View employees who were, like Brassinga, being paid for their services as role players when they responded to Worley's request, were not suddenly transformed into non-employee volunteers when they responded to their supervisor's request for their services. In fact, a person who is being paid by his or her employer for his or her time at the time that the person provides services to a public agency could never fall within the exception stated in Labor Code section 3352, subdivision (i) unless that person's employer was donating its employee's services to the public agency.
The evidence in this case did not establish that Palo Alto was donating Brassinga's time to Mountain View at any time on May 15. Similarly, the evidence did not demonstrate that Brassinga, as a compensated employee, was free to make a unilateral decision to donate the time for which he was being compensated by Palo Alto to another entity. Therefore, the evidence did not establish as a matter of law that the role playing services Brassinga was providing at the time of his death were "voluntary services" within the meaning of Labor Code section 3352, subdivision (i).
2. MARSH
Marsh held that "where the negligence of a special employee injures another of the special employer's workers, the victim is not barred by workers' compensation law from suing the general employer of the tortfeasor in negligence on respondeat superior principles." (Marsh v. Tilley Steel Co., supra, 26 Cal.3d at p. 490.) Plaintiffs assert that this principle is applicable here to permit Brassinga to sue Acton's general employer, Mountain View, even if Brassinga was a special employee of Mountain View. Not so. In Marsh, the injured employee had no employment relationship whatsoever with the general employer of the tortfeasor. Consequently, the exclusive remedy provisions did not bar a tort action by the injured employee against the general employer of the tortfeasor. Here, if Mountain View was Brassinga's special employer, the exclusive remedy provisions would necessarily bar a tort action by Brassinga against Mountain View.
3. FACTUAL DISPUTE WHETHER MOUNTAIN VIEW WAS BRASSINGA'S SPECIAL EMPLOYER
a. THE LAW
The key to the existence of a special employment relationship is control. " her
Page 1 2 3 4 5 6 7 8 9 10 11 12 13 14 California Personal Injury Attorneys
Personal Injury Lawyers
|
| |
to fill out a simple form to connect to Personal Injury Lawyers in your area.
|
|