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Roman v. Sears4/27/2005
ny-sponsored "spring blitz" cleanup competition. After the cleanup, the employee and several others went to a fellow employee's house, where they discussed primarily work-related issues. On his way home from the gathering, the employee was involved in an automobile accident with the plaintiff. (Id. at p. 28.) The trial court granted summary judgment for McDonald's, finding that the employee was on a special errand when he participated in the cleanup, but that he departed from that errand when he stopped at the other employee's house. (Id. at p. 29.)
"Even where the special errand exception to the going-and-coming rule `is found to be applicable, the employee may yet be found outside the scope of his employment if at the time of the accident he has completely abandoned his employer's business for personal reasons. [Citations.]' [Citation.]" (O'Connor v. McDonald's Restaurants, supra, at p. 29, fn. 4.) Thus, the O'Connor appeal focused solely on the question of whether the employee had abandoned his special errand, as McDonald's did not challenge the special errand finding in seeking affirmance. (Id. at pp. 29, fn. 3 & 33.) On the basis of evidence that McDonald's encouraged and rewarded employee dedication and initiative, as well as evidence that the conversation during the post-cleanup employee gathering focused on McDonald's business, the court concluded that evidence and reasonable inferences to be drawn therefrom raised triable issues of fact as to whether the employee had completely abandoned the special errand at the time of the accident. (Id. at pp. 31-33.)
Here, the issue is whether appellants raised a triable issue concerning application of the special errand exception to the going and coming rule. Unlike O'Connor, whether Demos was engaged in a special errand is at the heart of the dispute. Neither party has ever asserted either before the trial court or on appeal that Demos abandoned a special errand when he went home to change clothes. (See Reyes v. Kosha (1998) 65 Cal.App.4th 451, 466, fn. 6 [summary judgment review is limited to issues that have been adequately raised and briefed].) The reasoning of O'Connor is therefore inapplicable.
We conclude that the trial court correctly found that Demos was not acting within the course and scope of his employment at the time of the accident. The going and coming rule applied to preclude imposing liability against Sears and there were no triable issues of fact supporting the application of the special errand exception to that rule. In view of our conclusion, we need not address the alternative ground raised by the motion.
DISPOSITION
The judgment is affirmed. Respondent is awarded its costs on appeal.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.
We concur:
BOREN, P. J.
ASHMANN-GERST, J.
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