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Roman v. Sears4/27/2005
toring the employer-employee relationship."
B. The Going and Coming Rule Applies to Preclude Appellants from Imposing Liability on Sears.
Although the determination of whether an employee was acting within the course and scope of his employment is ordinarily a question of fact, it is a question of law when the operative facts are undisputed. (Perez v. Van Groningen & Sons, Inc., supra, 41 Cal.3d at p. 968; Tognazzini v. San Luis Coastal Unified School Dist. (2001) 86 Cal.App.4th 1053, 1057; Depew v. Crocodile Enterprises, Inc. (1998) 63 Cal.App.4th 480, 489.)
The relevant facts here are not in dispute. On the day the accident occurred, Demos drove to Sears, even though he was not scheduled to work that day. He intended to ready his department's appearance for corporate visitors. He wore street clothing, as he often did when he came in on his days off. Sears manager Tiratelli was aware that Demos would come into the store on his off-duty days. Neither Tiratelli nor any other store manager ever told Demos to come into the store when he was off duty, but Demos felt "a certain pressure" to have his department looking a certain way for corporate visitors.
Originally, Demos intended to arrive at the store by 7:00 or 7:30 a.m. in order to have sufficient time to straighten out his department before the store opened at 10:00 a.m. But Demos woke up later than he had expected and was running behind schedule. When he arrived at the Sears parking lot, he realized that he was late enough so that he might run into the corporate visitors at the store: "Originally I had no thought whatsoever in my head of seeing them or thinking that I might see them. But being the fact that I got there later than I originally planned, I thought what if I run into these people I've never met? They are higher-ups. They could be important in my future with my career at Sears, which I was at the time really fighting for." Demos then "made a realization that [he had] better go get tie on and forget the sweat and the dust." As a result, he got back into his car and drove home to change clothes. Tiratelli did not see Demos at the store that day, nor did he or any other manager instruct Demos to go home to change clothes.
Because the accident occurred while Demos was on his way home, the decisive question is whether appellants' evidence established a triable issue of fact concerning the application of the special errand exception to the going and coming rule. (See, e.g., Harris v. Trojan Fireworks Co. (1984) 155 Cal.App.3d 830, 835; C. L. Pharris Sand & Gravel, Inc. v. Workers' Comp. Appeals Bd. (1982) 138 Cal.App.3d 584, 589 (C. L. Pharris).) We reject appellants' argument that we need not address the going and coming rule because Demos's arriving at the Sears' parking lot established that he was acting within the course and scope of his employment. (See Lewis v. Workers' Comp. Appeals Bd. (1975) 15 Cal.3d 559, 563 [employee who enters employer parking lot simultaneously enters course of employment].) That Demos may have entered into the course and scope of his employment by driving into the Sears parking lot simply begs the question, since an employer is not held vicariously liable for torts committed by an employee commuting to or from work, and Demos had left the parking lot to return home at the time the accident occurred. (E.g., Ducey v. Argo Sales Co., supra, 25 Cal.3d at pp. 721-722; Felix v. Asai, supra, 192 Cal.App.3d at p. 931.)
We agree with the trial court that appellants' evidence failed to raise a triable issue of fact concerning the application of the going and coming rule. The undisputed evidence supported the application of the rule, as Demos was involv
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