Opinion
NOT TO BE PUBLISHED
Super. Ct. No. CV 027821
DAVIS, J.
The plaintiffs brought this tort action against the driver and the owner of a car that struck a truck in which the decedent was a passenger (he later died of the resulting injuries), and also against the driver’s employer, defendant Valley Rivco, Inc. (Rivco). Defendant Rivco filed a motion for summary judgment in its own behalf. The trial court granted the motion and entered judgment in behalf of Rivco.
The plaintiffs include Maria Gonzales, individually and as the representative of the estate of decedent Samuel Hernandez, and the children and son-in-law of the decedent.
The record indicates that the car owner was dismissed from the action on November 29, 2005; the driver is not a party to this appeal.
Although the record indicates an assignment of the case to Judge Holly for all purposes--an assignment also reflected in the defendant’s motion papers--Judge Saiers (a retired member of the San Joaquin bench) ruled on the motion.
On appeal, the plaintiffs contend that the so-called “going and coming” rule does not preclude defendant Rivco from being vicariously liable for the tort of its employee because there is a triable issue of material fact as to whether one of the rule’s exceptions applies. We shall affirm.
This is actually the plaintiffs’ second appeal. We dismissed their purported appeal from the order granting summary judgment. (Gonzales et alia v. Valley Rivco, Inc., C055023)
Facts
We review de novo a motion for summary judgment. (Rio Linda Unified School Dist. v. Superior Court (1997) 52 Cal.App.4th 732, 734.) Given the nature of the issue on appeal, the averments of the complaint--ordinarily our starting point (id. at pp. 734-735)--are for the most part irrelevant. In addition, there are only a few material facts and the parties do not suggest there is any issue about whether their respective evidentiary showings satisfied their burdens of production and proof.
A
According to the complaint, “[t]his is an action for personal injuries arising out of an accident that occurred on . . . August 5, 2005,” in San Joaquin County. The decedent was a resident of Mexico visiting family, and riding in a truck that his son-in-law was driving. The defendant driver, as “the agent and employee of defendant [Rivco],” was driving to his job in the early morning hours when he performed an illegal lane change to pass a truck. He collided with the son-in-law’s truck, inflicting serious and permanent injuries to the son-in-law and killing the decedent.
B
Rivco is a licensed framing contractor. In July and August 2005, it was working at three job sites. These included two in Tracy and one in Walnut Creek.
The defendant driver, seeking work as an apprentice, and his companion (apparently a carpenter, although the record does not indicate this expressly), approached Rivco’s owner at the primary site in Tracy several times. The site was awaiting a delivery of lumber, and the owner would tell them to return from day to day to see if the materials had arrived. On the day they were hired, after they had waited a half hour at the Tracy site, the Rivco owner arrived and told them there would not be work in Tracy, but they could work at the Walnut Creek site. The defendant driver and his companion carpenter drove to Walnut Creek in their car.
The companion carpenter thought this happened on July 18; the defendant driver thought this happened on July 20, the date on his W-4. The Rivco owner could not remember the date on which the defendant driver had signed the form. The supervisor in Walnut Creek stated that the two showed up for work on July 20 after he had received a phone call saying that they had been hired.
Rivco hired the defendant driver as an unskilled laborer assisting the carpenter. The brother of Rivco’s owner was his supervisor. The defendant driver did not have any express duties involving the driving of either Rivco vehicles or his own on Rivco’s behalf, nor did Rivco give him any form of compensation for the use of his personal car. Employees were responsible for transporting themselves and their tools to a job site.
After they had worked several days at the Walnut Creek site, the Rivco supervisor told the defendant driver and the carpenter to report to the primary Tracy job site on the following day. On either August 2 or 3, the Rivco supervisor told them after they arrived that in a couple of hours they would be needed at a secondary Tracy site to expedite the framing of air conditioning units before another contractor started work on the following day.
A conflict arises at this point. According to the Rivco supervisor, Rivco had a policy of providing transportation of its workers and their equipment between job sites in a Rivco vehicle that he drove. He told the defendant driver and the carpenter to put their gear in the truck and wait for him. While the Rivco supervisor’s attention was occupied elsewhere, they loaded their tools in their own vehicle and insisted on following the Rivco truck to the other job site. According to the declarations of the defendant driver and the carpenter, the supervisor told them to use their own car.
When they arrived at the secondary site, the Rivco supervisor left; he told the defendant driver and the carpenter that he would be back by 1:00 p.m. and that they should not leave before he returned. According to the supervisor, when he returned, the defendant driver and the carpenter were gone and the work was unfinished (requiring him to complete the job). They were not back at the primary job site, nor did they return to work or receive any further assignments before they were involved in the accident on August 5.
Rivco paid the employees at the primary Tracy job site in cash and did not keep track of cash payments.
According to the defendant driver and the carpenter, they completed the work at the secondary job site, and when the Rivco supervisor returned, he told them to drive back to the primary job site to finish out the work day. They worked at the primary job site thereafter, and were headed to work there on August 5 when they were involved in the accident.
The court did not elaborate on the basis for its ruling in defendant Rivco’s favor. The judgment simply incorporated the ruling.
Discussion
A
As a matter of public policy, losses from the torts of employees--which will inevitably occur in the operation of a business enterprise--are the vicarious responsibility of the entity as one of the imputed costs of production that society as a whole bears through the price of the product or insurance rates, rather than the innocent injured party. (Hinman v. Westinghouse Electric Co. (1970) 2 Cal.3d 956, 959-960 (Hinman).) However, once the employees complete their work day, they ordinarily are not providing any benefit or service to the business until they begin the next work day, and therefore torts occurring during a commute are no more the vicarious responsibility of the business than torts committed at an employee’s home. (Id. at p. 961.) On the other hand, if the business (expressly or impliedly) makes the commute a part of the work day, or derives an incidental benefit from a particular employee’s commute beyond that of the other members of the work force, then its vicarious liability will continue during the course of the commute. (Id. at pp. 961-962.) Under circumstances not pertinent to the present case, Hinman found that both exceptions to the commute rule applied, which resulted in the employer’s vicarious liability. (Id. at p. 962.)
We choose a less cumbersome term than the traditional locution of “the going and coming rule.”
As a general matter, the commute rule applies in cases only where an employee ordinarily works at a particular location and the job duties do not ordinarily include driving. (Huntsinger v. Glass Containers Corp. (1972) 22 Cal.App.3d 803, 809-810 (Huntsinger) [finding that employee who regularly needed to meet with customers at their places of business had the use of his personal vehicle as an implied condition of employment, from which employer derived an incidental benefit not common to its other employees]; cf. Hinojosa v. Workmen’s Comp Appeals Bd. (1972) 8 Cal.3d 150, 152, 157, 159-161 [use of personal car essential to job’s functions at several different locations].) However, in order for liability to arise for deviations from a fixed working location or for the use of a personal car, there must be a “regular use of a vehicle to accomplish the job” (Tryer v. Ojai Valley School (1992) 9 Cal.App.4th 1476, 1481; see id. at pp. 1479-1480, 1481-1482 [use of own car to commute to two different fixed job sites, one in morning and one in afternoon, does not make driving an integral part of employee’s job]) and “the benefit must be sufficient enough to justify making the employer responsible for the risks inherent in the travel” (Blackman, supra, 233 Cal.App.3d at p. 604 [any benefit from facilitating employee’s educational advancement too indirect to business purpose]).
Although workers’ compensation cases represent a more liberal allocation of liability to an employer for commute injuries and therefore are not controlling, they are instructive to the extent they are based on the principle of identifying an extraordinary employer benefit from the commute of a particular employee. (Hinman, supra, 2 Cal.3d at p. 962, fn. 3; Anderson v. Pacific Gas & Electric Co. (1993) 14 Cal.App.4th 254, 259-260; Blackman v. Great American First Savings Bank (1991) 233 Cal.App.3d 598, 605 (Blackman); Huntsinger, supra, 22 Cal.App.3d at p. 808.)
B
Viewing the evidence in favor of the plaintiffs, the defendant driver and the carpenter were dispatched to Walnut Creek on their first day of work after arriving at the Tracy site. This is not, however, sufficient to bring the defendant driver within the exceptions to the commute rule. The defendant driver and the carpenter did not have any duties at the primary Tracy site on the first day of their employment, and had been merely stopping there from day to day to see if there was a possibility of employment. We cannot discern any basis for imposing liability because defendant Rivco directed them to Walnut Creek from the Tracy job site rather than call them at home to tell him that materials had not yet arrived in Tracy. Any benefit to the employer on this single occasion in saving a phone call is too insubstantial to justify liability.
As for the single occasion on which Rivco dispatched the defendant driver and the carpenter from one site to another, it is disputed whether the supervisor directed them to use their own car or they did so over Rivco’s express policy and the supervisor’s direction. Again, however, the dispute is not material. While Rivco would certainly benefit from flexibility in assigning its workforce where needed during the course of a workday, this single incident is insufficient to establish the defendant driver’s integral and regular use of a personal car to accomplish his job functions at the behest of his employer. Rather, Rivco only ordinarily required that he go to a particular fixed job site and did not concern itself with how he accomplished his commute with his tools.
Consequently, even considered together, these incidents are not sufficient to establish Rivco’s liability for an accident occurring during the defendant driver’s commute to the primary Tracy job site (assuming on the disputed evidence that this was indeed his destination at the time of the accident). The trial court was correct in granting summary judgment.
Disposition
The judgment is affirmed. Respondent is awarded costs of appeal.
We concur: SCOTLAND, P. J., ROBIE, J.