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Thorn v. City of Glendale9/6/1994
GATES, Acting P.J.:
James Thorn and his business, Glendale Spa City, Inc. (Spa City), appeal from a judgment upon demurrer entered in favor of the City of Glendale (Glendale) in their action against Glendale and its employee and fire marshal, John Orr, for fire damage to Spa City. The complaint alleges that Orr set a fire at Spa City while acting in his official capacity and that Glendale is liable for the ensuing loss both under respondeat superior principles and for negligently supervising Orr. Appellants contend:
"[I.] John Orr was acting within the scope of his employment for the City of Glendale when he set the incendiary devices which damaged appellants' premises. [II.] The City is liable for negligently supervising its fire marshal."
Upon appeal from the sustaining of a demurrer without leave to amend, we assume the truth of all facts properly pleaded in the complaint. "If on consideration of all the facts stated it appears that the plaintiff is entitled to any relief, the order of dismissal upon the sustaining of a demurrer should be reversed. [Citation.]" (Hill v. People ex Rel. Dept. of Transportation (1979) 91 Cal. App. 3d 426, 429, 154 Cal. Rptr. 142.)
The complaint alleges the following. On February 22, 1991, Orr entered Thorn's premises under color of authority to conduct a fire inspection. He then committed arson by setting incendiary devices which destroyed the premises and the business conducted thereon. Since Orr was acting within the scope of his employment, Glendale is liable for the resulting damage. Moreover, Glendale knew or should have known that the fire marshal was an arsonist and negligently failed to supervise him.
Appellants urge that Glendale is liable under the doctrine of respondeat superior because Orr's alleged acts were committed within the scope of employment. They rely, inter alia, upon our Supreme Court's holding in Mary M. v. City of Los Angeles (1991) 54 Cal. 3d 202, 285 Cal. Rptr. 99, 814 P.2d 1341, which expanded the scope of vicarious governmental liability to cover the rape of a woman by an on-duty police officer.
Historically, the scope of employment doctrine has been limited to acts which are directly or indirectly in furtherance of the employer's purpose, precluding vicarious liability for criminal acts not related to the employer's enterprise. Section 228 of the Second Restatement of Agency, which states the traditional rule, provides in relevant part that an act is within the scope of employment only if "(a) it is of the kind [the employee] is employed to perform; (b) it occurs substantially within the authorized time and space limits; (c) it is actuated, at least in part, by a purpose to serve the master, and (d) if force is intentionally used by the servant against another, the use of force is not unexpectable by the master."
Under that test, employers have been held liable for the wrongful and unauthorized acts of their employees where they were committed in the course of a series of acts of the agent which were authorized by the principal. (See Fields v. Sanders (1947) 29 Cal. 2d 834, 180 P.2d 684, [truck driver strikes motorist with wrench in course of dispute over driving incidents]; Carr v. Wm. C. Crowell Co. (1946) 28 Cal. 2d 652, 171 P.2d 5 [employee of subcontractor throws hammer at employee of a general contractor in the course of a dispute]; Ruppe v. City of Los Angeles (1921) 186 Cal. 400, 199 P. 496 [city employee assaults an apa
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