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Roman v. Sears4/27/2005
tly reviewing a motion for summary judgment, we apply the same three-step analysis used by the superior court. We identify the issues framed by the pleadings, determine whether the moving party has negated the opponent's claims, and determine whether the opposition has demonstrated the existence of a triable, material factual issue." (Silva v. Lucky Stores, Inc. (1998) 65 Cal.App.4th 256, 261.)
On the basis of our review, we conclude that the trial court correctly determined that the undisputed evidence demonstrated that Demos was not acting within the course and scope of his employment at the time of the accident.
A. General Principles of Respondeat Superior Liability.
Under the doctrine of respondeat superior, an employer is vicariously liable for torts committed by employees acting within the course and scope of their employment. (Tryer v. Ojai Valley School (1992) 9 Cal.App.4th 1476, 1480; Felix v. Asai (1987) 192 Cal.App.3d 926, 931.) "To hold an employer vicariously liable the employee must be `"engaged in the duties which he was employed to perform" "those acts which incidentally or indirectly contribute to the [employer's] service."' [Citations.] `Conversely, the employer is not liable when the employee is pursuing "his own ends."' [Citation.]" (Tryer v. Ojai Valley School, supra, at p. 1481.)
An employer is generally not liable for torts committed by an employee who is going to or coming from work. (Hinman v. Westinghouse Elec. Co. (1970) 2 Cal.3d 956, 961; Tryer v. Ojai Valley School, supra, 9 Cal.App.4th at p. 1481.) The "going and coming rule" provides that an employee is not acting within the course and scope of his employment while engaged in the ordinary commute going to or coming from his or her place of work. (Ducey v. Argo Sales Co. (1979) 25 Cal.3d 707, 721-722; Felix v. Asai, supra, 192 Cal.App.3d at p. 931.) "The `going and coming' rule is sometimes ascribed to the theory that the employment relationship is `suspended' from the time the employee leaves until he returns [citation], or that in commuting he is not rendering service to his employer [citation]." (Hinman v. Westinghouse Elec. Co., supra, at p. 961.)
Although ordinary commutes are outside the course and scope of employment, exceptions are made to the going and coming rule when the employee's trip involves an incidental benefit to the employer not common to commute trips by ordinary members of the work force. (Felix v. Asai, supra, 192 Cal.App.3d at p. 931; see also Blackman v. Great American First Savings Bank (1991) 233 Cal.App.3d 598, 604 [noting that for an exception to apply, "the benefit must be sufficient enough to justify making the employer responsible for the risks inherent in the travel"].) For example, the special errand exception to the going and coming rule provides: "`If the employee is not simply on his way from his home to his normal place of work or returning from said place to his home for his own purpose, but is coming from his home or returning to it on a special errand either as part of his regular duties or at a specific order or request of his employer, the employee is considered to be in the scope of his employment from the time that he starts on the errand until he has returned or until he deviates therefrom for personal reasons.'" (Felix v. Asai, supra, at p. 931, quoting Boynton v. McKales (1956) 139 Cal.App.2d 777, 789.) In Hinojosa v. Workmen's Comp. Appeals Bd. (1972) 8 Cal.3d 150, 157, the court explained the rationale for the exception: "The employer's special request, his imposition of an unusual condition, removes the transit from the employee's choice or convenience and places it within the ambit of the employer's choice or convenience, res
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