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Thorn v. City of Glendale9/6/1994
rtment building manager while attempting to enter a building to install city electrical meters]; Jones v. City of Los Angeles (1963) 215 Cal. App. 2d 155, 30 Cal. Rptr. 124 [assault and battery by police officers].)
No liability arises "'where the agent for however brief a space of time, has ceased to serve his principal . . . .'" (Fields v. Saunders, supra, 29 Cal. 2d at p. 839, quoting Andrews v. Seidner (1942) 49 Cal. App. 2d 427, 430, 121 P.2d 863; see Martinez v. Hagopian (1986) 182 Cal. App. 3d 1223, 1229, 227 Cal. Rptr. 763 [farmworkers kill visitor to farm over dispute about the treatment of another visitor's wife]; Golden West Broadcasters, Inc. v. Superior Court (1981) 114 Cal. App. 3d 947, 955, 171 Cal. Rptr. 95 [stage manager on assignment away from home engages in barroom brawl with stranger]; Monty v. Orlandi (1959) 169 Cal. App. 2d 620, 623, 337 P.2d 861 [bartender assaults plaintiff over personal dispute].)
More recently, our Supreme Court stated, "'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.)
Policy reasons suggested for imposing vicarious liability include that it will tend to (1) provide a spur towards accident prevention; (2) provide greater assurance of compensation for accident victims; and (3) assure that accident losses will be broadly and equitably distributed among the beneficiaries of the enterprise that entail them. (John R. v. Oakland Unified School Dist. (1989) 48 Cal. 3d 438, 451, 256 Cal. Rptr. 766, 769 P.2d 948; Perez v. Van Groningen & Sons, Inc. (1986) 41 Cal. 3d 962, 967, 227 Cal. Rptr. 106, 719 P.2d 676.)
None of the foregoing tests favor liability in the present case. A fire marshal's entering a building and setting an incendiary device for the purpose of burning it down is so startling and unusual an occurrence as to be outside those risks which should fairly be imposed upon the public employer. The alleged act did not arise from the pursuit of the employer's purpose but was rather the result, we must assume, of a personal compulsion.
While Orr's ability to request access to private areas of a building arose from his employment, that ability is not unique. Similar permissive access is available to security guards, repairpersons, and utility workers. Glendale would have no greater reason to guard against and deter the alleged acts than would employers of other workers whose duties entail their entering private premises. Moreover, property damage resulting from fire, as distinguished from personal injury and trauma, is commonly insurable by the business enterprise victim. In truth, property owners would appear far better able to insure against the loss than would the public entity, particularly where the conduct in question is felonious in nature.
Mary M. v. City of Los Angeles, supra, 54 Cal. 3d 202 relied upon by appellants, is distinguisha
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