Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of San Diego County, Super. Ct. No. GIN037812 Jacqueline M. Stern, Judge.
McDONALD, J.
On August 23, 2003, Bessie Kalas was injured when her car rear-ended a backhoe being driven on a public road by William Hawkins. Hawkins had used the backhoe the previous day to clean out a canal on a farm owned by Resendiz Brothers Protea Growers, LLC (RBPG), and the accident occurred the following morning while Hawkins was driving the backhoe en route to another site where he planned to use the backhoe for a personal job. Kalas's action against RBPG sought recovery on three theories: RBPG was liable under respondent superior principles; RBPG's direct negligence was a cause of the accident; and RBPG and Hawkins were coconspirators. The jury found against RBPG on the first two theories, but the trial court granted RBPG's motion for judgment notwithstanding the verdict (JNOV) on Kalas's direct negligence claim. RBPG's appeal asserts the evidence is insufficient to support the verdict finding RBPG liable under respondent superior principles; Kalas's cross-appeal asserts the ruling granting JNOV on the direct negligence theory was error.
FACTUAL BACKGROUND
A. The Relationship Between the Defendants
RBPG is a commercial flower grower and farms numerous fields, including property near Gomez Creek Road in Fallbrook. RBPG periodically rents equipment from Fallbrook Equipment Rental (FER), including backhoes, for its farming operations.
Hawkins is a backhoe operator frequently retained by RBPG to work on its fields. RBPG paid Hawkins $25 per hour for his work.
B. The Hiring
On August 21, 2003, Mr. Resendiz (RBPG's President) asked Hawkins if he was available the next day to clear out a canal on one of RBPG's farms. Hawkins first called FER and determined it had a backhoe RBPG could rent for the following day. He called RBPG, and was told to come to RBPG's main office around noon the next day. An RBPG employee then contacted FER to arrange the backhoe rental and directed FER to deliver the backhoe to the Gomez Creek site.
The following day, Hawkins reported to RBPG's main office, and rode with Mr. Resendiz to the Gomez Creek site. FER had already delivered the backhoe to the site. Hawkins completed the canal clearing job in approximately four hours and earned $100 for his services.
FER delivered the backhoe to the site on a trailer and left it at the site with the keys and the rental contract. The contract was for a flat rate of $225 and, although the contract gave the lessee possession of the backhoe for 24 hours, the lessee could only run the backhoe for a maximum of eight hours. If the lessee kept the backhoe more than 24 hours or ran it more than eight hours, it was deemed overtime, for which additional charges would apply.
C. The Hawkins/RBPG Arrangement
After Hawkins completed the RBPG job, he noticed there were approximately four hours of operating time left on the backhoe. He asked Resendiz whether, in lieu of paying Hawkins's fee, Hawkins could instead use the backhoe the following morning for a personal project during the remaining operating time. Resendiz agreed, subject to the proviso that Hawkins finish his personal work before the contract time lapsed. To facilitate Hawkins's ability to retrieve the backhoe the following morning, Hawkins drove the backhoe (with Resendiz following in his truck) back to RBPG's main office. The Hawkins/RBPG arrangement to permit Hawkins to use the backhoe for personal reasons violated the terms of FER's rental agreement.
There was some dispute over whether Resendiz was aware of precisely where Hawkins planned to use the backhoe. Hawkins testified Resendiz knew he intended to dig up a fence (which Hawkins would use to fence his horses) at a site nearly 15 miles from RBPG's main office; Resendiz testified he thought the arrangement was for him to meet Hawkins at the office on the morning of August 23 and to follow him to Hawkins's horse property approximately 1/2 mile from the office.
Under the contract, RBPG agreed "not to sublet, loan or assign the equipment" and not to "move the equipment from the address at which Customer represented it was to be used."
D. The Accident
Hawkins drove the backhoe early the next morning on the 15-mile route to the location of the fence he planned to remove. He was traveling on a public highway at approximately 20 miles per hour when Kalas's car rear-ended the backhoe. Kalas was severely injured.
PROCEDURAL BACKGROUND
At trial, Kalas claimed RBPG was liable under three theories: vicarious liability of RBPG because Hawkins's conduct was imputable to RBPG under respondent superior principles; direct negligence by RBPG that substantially contributed to the accident; and conspiracy. The jury concluded Hawkins was negligent and had been an agent acting in the course and scope of his agency for RBPG at the time of the accident, and also found direct negligence by RBPG. The jury apportioned fault of 60 percent to Hawkins, 20 percent to RBPG, and 20 percent to Kalas.
Kalas's lawsuit also pleaded claims against Hawkins and FER. The claims against FER were dismissed following settlement. Kalas dismissed her claims against Hawkins.
RBPG moved for JNOV on both theories of liability. The court denied the motion as to the vicarious liability theory, but granted the motion as to the direct negligence theory. After apportioning the fault and calculating various credits, the court entered judgment for Kalas.
RBPG appeals from the judgment insofar as the court denied its JNOV motion on the vicarious liability finding. Kalas cross-appeals from the judgment insofar as the court (1) granted the JNOV motion on the direct liability theory and (2) barred Kalas from obtaining a jury verdict on the conspiracy claim.
RBPG'S APPEAL
When a party is injured by a tortfeasor and seeks to affix liability on the tortfeasor's alleged principal, the injured party must ordinarily demonstrate either (1) the principal violated a duty of care it owed to the injured party and this negligence was a proximate cause of the resulting injury (the direct liability theory), or (2) the tortfeasor-agent committed the tortious conduct causing the injury while acting within the course and scope of his agency (the vicarious liability theory). (See generally 3 Witkin, Summary of Cal. Law (10th ed. 2005) Agency and Employment, §§ 167-168, pp. 211-213.)
Kalas asserted below Hawkins was acting within the course and scope of his agency with RBPG at the time of the accident. The evidence is undisputed, and Kalas concedes on appeal, that Hawkins had completed the canal cleaning job for which he was temporarily retained by RBPG. Indeed, the evidence was undisputed (and Kalas conceded below) Hawkins was not RBPG's regular employee and Hawkins was en route to perform services that benefited Hawkins personally and did not benefit RBPG. Finally, there is no evidence Hawkins was to be compensated by RBPG for his activities on the day of the accident.
The issues of whether or not a principal-agent relationship existed, and whether the agent was acting in the course and scope of that agency at the time of the tort, often present factual issues that will not be disturbed on appeal if supported by the evidence. (Tognazzini v. San Luis Coastal Unified School Dist. (2001) 86 Cal.App.4th 1053, 1057-1058.) However, when the relevant facts are undisputed, as here, the issues are ones of law. (Perez v. Van Groningen & Sons, Inc. (1986) 41 Cal.3d 962, 968.)
When Hawkins finished the canal cleaning job for which he was hired by RBPG, his agency relationship with RBPG ended. The subsequent agreement between Hawkins and RBPG (and Hawkins's activities pursuant thereto) was not a continuation of the expired principal-agent relationship, but was instead a new relationship of sublessor-sublessee: Hawkins agreed to pay RBPG (in the form of debt forgiveness) to use the backhoe for a personal errand that conferred no benefit on RBPG. Because the principal-agent relationship had terminated, and Hawkins was thereafter acting in pursuit of his own personal goals and was so engaged at the time of the injury-producing event, RBPG cannot be held liable for Hawkins's torts under respondent superior principles. (See Sunderland v. Lockheed Martin Aeronautical Systems Support Co. (2005) 130 Cal.App.4th 1, 11 [where main purpose of the injury-producing activity was the pursuit of the employee's personal ends, the employer is not liable]; accord, Munyon v. Ole's, Inc. (1982) 136 Cal.App.3d 697, 700 [no respondent superior liability where accident occurred on day off while on errand that personally benefited employee].)
Kalas asserts RBPG did benefit from Hawkins's actions: RBPG reaped economic benefits (in the form of debt forgiveness) and goodwill benefits (in the form of enhancing the relationship between RBPG and Hawkins). However, a vendor always seeks to realize tangible and intangible benefits from its contracts with its customers, but Kalas cites no authority suggesting that obtaining those benefits converts the relationship from vendor-vendee to principal-agent.
Kalas argues that because Hawkins had agreed to return the backhoe to FER before the 24-hour rental period expired, Hawkins was acting on behalf of and for the benefit of RBPG (even after the completion of the contracted-for canal cleaning) because Hawkins agreed to satisfy an obligation of RBPG--to return the backhoe to FER. We are not persuaded by Kalas's argument for two reasons. First, Hawkins' agreement to ensure the backhoe was timely returned was part of his sublessor-sublessee relationship because it was a condition of RBPG's agreement to sublease the equipment; it was not an incident of the work he was hired to perform under the expired principal-agent relationship. Second, even assuming Hawkins's agreement to timely arrange for FER to pick up the backhoe later that day (after Hawkins had used it for his personal errand) was properly attributable to his principal-agent relationship, the evidence is undisputed that Hawkins was not engaged in returning the backhoe at the time of the accident, but was instead en route to perform a personal errand. If the employee's tort occurs when he or she is engaged in a personal errand, the employer is not liable even though the employee may have been operating the employer's vehicle. (See, e.g., Gipson v. Davis Realty Co. (1963) 215 Cal.App.2d 190, 209.)
Although Kalas correctly notes Hawkins's agreement to use and timely return the backhoe benefited RBPG, the benefits flowing to RBPG were the economic benefits accruing to RBPG as sublessor (e.g. Hawkins's debt forgiveness and the avoidance of added costs under the prime lease), not the benefits flowing to RBPG as Hawkins's employer.
In Baptist v. Robinson (2006) 143 Cal.App.4th 151, the court explained that, under the so-called "going-and-coming" rule:
"an employee is not regarded as acting within the scope of employment while going to or coming from the workplace. [Citation.] This is based on the concept that the employment relationship is suspended from the time the employee leaves work until he or she returns, since the employee is not ordinarily rendering services to the employer while traveling. [Citations] An exception to this rule is where the employee is engaged in a 'special errand' or 'special mission' for the employer. [Citations.] In that case the employee is considered to be acting within the scope of employment during the time he or she is engaged in the special errand. [Citation.] 'Thus, it is necessary to determine the main purpose of injury-producing activity: If it was the pursuit of the employee's personal ends, the employer is not liable.' [Quoting Le Elder v. Rice (1994) 21 Cal.App.4th 1604, 1607.]" (Baptist v. Robinson, at p. 162 [italics added].)
Here, the main (and indeed exclusive) purpose for Hawkins's driving the backhoe at the time of the accident was to go to a site where he could perform his personal tasks. Although Hawkins had planned later that day to arrange for FER to pick up the backhoe, that was not "the main purpose of injury-producing activity." (Le Elder v. Rice, supra, 21 Cal.App.4th at p. 1607.) We conclude the trial court erred when it denied RBPG's JNOV motion as to its respondent superior liability.
Kalas relies on a long line of cases involving "dual purpose" activities in which the courts have held that when an employee was engaged in activities that combined a personal purpose with a business purpose, and was attending to both at substantially the same time, " ' "no nice inquiry will be made at to which business he was actually engaged in at the time of the injury" ' " (Farmers Ins. Group v. County of Santa Clara (1995) 11 Cal.4th 992, 1004), and argues we should affirm the judgment here because it is for the jury to decide whether the employee was acting in the course of his or her employment. (See, e.g. Richards v. Metropolitan Life Ins. Co. (1941) 19 Cal.2d 236, 241-244.) However, Kalas cites no case holding that when an employee is engaged in a personal errand, the fact that employee had plans to perform a service for the employer later the same day converts the personal errand into a dual purpose activity. Moreover, we do not defer to the jury in this case because "[a]lthough it is generally a question of fact whether conduct is within the scope of employment, if the facts are undisputed and no conflicting inferences are possible, the question is one of law." (Baptist v. Robinson, supra, 143 Cal.App.4th at p. 162.)
KALAS'S CROSS-APPEAL
The jury also found in Kalas's favor on the claim that RBPG was liable for its direct negligence. RBPG's JNOV motion argued (1) RBPG had no duty of care that required RBPG to control how Hawkins transported the backhoe on the morning in question, and (2) Kalas had expressly abandoned the negligent entrustment theory, which was the only viable theory of direct negligence she could have asserted against RBPG. The trial court agreed and granted RBPG's JNOV motion. Kalas's cross-appeal asserts (1) it was error to grant the JNOV motion and (2) it was error to submit a verdict form that effectively precluded the jury from assessing both the direct negligence claim and the conspiracy claim.
A. The Direct Negligence Claim
Kalas argues the verdict imposing liability on RBPG for its own direct negligence should be upheld because the evidence showed RBPG released the backhoe to Hawkins and effectively required or induced him to drive the backhoe on public roads knowing the backhoe was not appropriately equipped for public street use, and without taking appropriate precautions against accidents. Kalas asserts these acts and omissions support a judgment for direct negligence.
The evidence permitted the conclusion Resendiz was aware Hawkins would be transporting the backhoe the following morning, using public roads to travel to a site far from where they left it the previous evening, and was aware the backhoe's lack of safety equipment posed a danger to motorists. Moreover, because of the time constraints placed on Hawkins's permissive use of the backhoe (a condition to RBPG's permission was Hawkins's four-hour job needed to be completed prior to noon timely to return the backhoe), Resendiz effectively compelled Hawkins to begin the journey before sunrise and was informed by Hawkins that he would begin the journey around 5:00 a.m.)
Kalas also raised other claims of direct negligence. For example, Kalas asserted RBPG was directly negligent because RBPG violated the rental contract by authorizing (as well as assisting) Hawkins to move the backhoe from the Gomez Creek location back to RBPG's main office. This theory is unpersuasive for two reasons. First, the fact that conduct may have breached the rental contract does not give rise to tort liability unless the conduct also violated a duty of care independent from the contract. (Robinson Helicopter Co., Inc. v. Dana Corp. (2004) 34 Cal.4th 979, 989.) Accordingly, the fact that RBPG may have breached the contract the day before the accident adds nothing to Kalas's obligation to show RBPG breached its duty of care toward Kalas. Moreover, the accident was not caused by moving the backhoe during daylight hours the preceding day, but was instead caused by Hawkins moving the backhoe during darkness the following morning.
The trial court concluded Kalas's claim of direct negligence failed because RBPG had no duty to ensure the backhoe was properly equipped for public street use. Because the issue of whether RBPG owed a duty of care to Kalas is a question of law, we review de novo the trial court's ruling that RBPG did not owe a duty of care to Kalas. (See, e.g., Sharon P. v Arman, Ltd. (1999) 21 Cal.4th 1181, 1188.)
When a defendant has not intended to injure a plaintiff, and the defendant is not deemed for policy reasons to be strictly liable for a plaintiff's injuries regardless of fault, a defendant's liability for a plaintiff's injuries will be determined under negligence principles. (Prosser & Keeton, Torts (5th ed. 1984) § 7, pp. 31-32.) The elements of negligence are: (1) defendant's obligation to conform to a certain standard of conduct for the protection of others against unreasonable risks (duty); (2) failure to conform to that standard (breach of the duty); (3) a reasonably close connection between the defendant's conduct and resulting injuries (proximate cause); and (4) actual loss (damages). (Id. at § 30, pp. 164-165.)
The first element--the duty question to be decided by the court rather than the jury--"is not an immutable fact, but rather an expression of policy considerations leading to the legal conclusion that a plaintiff is entitled to a defendant's protection." (Ludwig v. City of San Diego (1998) 65 Cal.App.4th 1105, 1110.) To determine the standard of conduct required by the first element we generally undertake a risk-benefit analysis "by balancing the risk, in the light of the social value of the interest threatened, and the probability and extent of the harm, against the value of the interest which the actor is seeking to protect, and the expedience of the course pursued. For this reason, it is usually very difficult, and often simply not possible, to reduce negligence to any definite rules; it is 'relative to the need and the occasion,' and conduct which would be proper under some circumstances becomes negligence under others." (Prosser & Keeton, Torts, supra, at § 31, p. 173, fns. omitted.) Stated differently, " 'duty' is a question of whether the defendant is under any obligation for the benefit of the particular plaintiff; and in negligence cases, the duty is always the same--to conform to the legal standard of reasonable conduct in the light of the apparent risk." (Id. at § 53, p. 356.) Thus, although the articulated standard is the same, the question of what is reasonable will depend in each case on the particular circumstances facing that defendant considering the foresee ability of the risk of harm balanced against the extent of the burden of eliminating or mitigating that risk.
Although "[a]ny number of considerations may justify the imposition of duty in particular circumstances, including the guidance of history, our continually refined concepts of morals and justice, the convenience of the rule, and social judgment as to where the loss should fall," the "foresee ability of the risk is a primary consideration in establishing the element of duty." (Weirum v. RKO General, Inc. (1975) 15 Cal.3d 40, 46.) On this primary element, there is no dispute that the risk to motorists from a vehicle being operated on public roads without being equipped with the required safety features is foreseeable: the statutory scheme embodied in the Vehicle Code contemplates that equipment is necessary; the contract with FER warned its lessees not to transport the backhoe from the site to which it was delivered; and the evidence supports the conclusion RBPG actually understood the risks involved in driving the backhoe on public roads.
Specifically, when Hawkins moved the backhoe from the job site back to RBPG's main office the evening before the accident, Resendiz followed behind in his truck, permitting an inference Resendiz understood the need for a "safety buffer" when the backhoe was on public roads.
The other factors employed under the analysis prescribed by Rowland v. Christian (1968) 69 Cal.2d 108 similarly militate in favor of imposing a duty of care on RBPG. These factors include: (1) the degree of certainty that the injured party suffered harm; (2) the closeness of the connection between the defendant's conduct and the injury suffered, (3) the moral blame attached to the defendant's conduct; (4) the policy of preventing future harm, (5) the extent of the burden to the defendant; (6) the consequences to the community of imposing a duty to exercise care with resulting potential liability. (Id. at pp. 112-113.) There is no question Kalas was injured, and there is closeness between RBPG's conduct (authorizing Hawkins to use and drive the backhoe on public roads without safety precautions) and the injury. The policy against preventing future harm is furthered by imposing on persons who have the right to control the use of vehicles liability for injuries caused when they authorize (and profit from) use of the vehicles for an activity to which they are not suited. Finally, the burden of taking precautions was minimal--FER charged only $35 to legally transport the backhoe from one location to another, which is a de minimus cost in comparison to the dangers created by driving the backhoe on a public road without safety equipment.
Although not dispositive, we note that persons engaged in the leasing of such vehicles have a statutory obligation to ensure they are properly equipped. (Veh. Code, § 24010.) We requested supplemental briefing from the parties to assess whether this statute provided an alternative ground for affirming the jury's verdict. RBPG argued (1) this statute may not be invoked on appeal because it was not presented to the jury, and (2) the statute was only intended to apply to persons engaged in the business of renting vehicles. Because this theory was not presented below, we do not assess the direct application of Vehicle Code section 24010 here; RBPG's request for judicial notice is therefore denied as moot. However, even assuming this statute does not apply to RBPG, it provides legislative recognition that certain standards of conduct are expected of persons who profit from leasing vehicles for public street use. (Cf. Michael R. v. Jeffrey B. (1984) 158 Cal.App.3d 1059, 1067.)
RBPG argued below, and reasserts on appeal, that it cannot be held liable for not preventing Hawkins from driving the backhoe on a public road. However, RBPG did more than merely fail to prevent negligent conduct by Hawkins--it provided him with a instrumentality it knew to be dangerous for one of the purposes it knew Hawkins intended to use it; it directed him to leave the backhoe in a place that required him to subsequently use public roads knowing the backhoe was not equipped for that use; and there is some evidence to support the conclusion that Resendiz failed to meet Hawkins the following morning (as he was apparently scheduled to do) to provide an escort for transporting the backhoe to the site. It is this conduct, rather than RBPG's failure to control Hawkins's conduct, that supports a judgment for direct negligence.
We conclude the trial court's order granting RBPG's JNOV motion as to the direct negligence finding was erroneous, and must be reversed.
B. The Conspiracy Claim
Kalas asserts the trial court erroneously structured the special verdict form in a manner that preempted her from obtaining a jury determination on her conspiracy allegations. Kalas argued below she was entitled to have the jury decide whether RBPG was vicariously liable for Hawkins's negligence under either an agency theory or under the theory that RBPG and Hawkins were coconspirators. Although the trial court ruled Kalas's conspiracy theory could be considered by the jury, the final structure of the trial court's special verdict form effectively instructed the jury to skip a determination on the conspiracy theory if it decided Hawkins was RBPG's agent. Kalas argues this was error.
We conclude that, even assuming Kalas may raise this issue, any error was harmless because there is no evidence supporting recovery on a conspiracy theory. Civil conspiracy is not an independent tort. (Applied Equipment Corp. v. Litton Saudi Arabia Ltd. (1994) 7 Cal.4th 503, 510-511.) Rather, it is a " 'legal doctrine that imposes liability on persons who, although not actually committing a tort themselves, share with the immediate tortfeasors a common plan or design in its perpetration. [Citation.]' [Citation.]" (Kidron v. Movie Acquisition Corp. (1995) 40 Cal.App.4th 1571, 1581 [italics added].) "The major significance of a conspiracy cause of action 'lies in the fact that it renders each participant in the wrongful act responsible as a joint tortfeasor for all damages ensuing from the wrong . . . regardless of the degree of his activity. [Citations.]' " (Howard v. Superior Court (1992) 2 Cal.App.4th 745, 748.) In short, this claim is merely a mechanism for imposing vicarious liability, because each member of the conspiracy becomes liable for all acts done by others pursuant to the conspiracy, and for all damages caused thereby. (Westamco Investment Co. v. Lee (1999) 69 Cal.App.4th 481, 486.)
Kalas submitted her own special verdict form that would have permitted the jury to evaluate both the conspiracy and agency issues, but the trial court's version slightly modified the special verdict form to effectively eliminate the conspiracy finding if the jury made an affirmative finding of agency. The record does not reflect that Kalas objected to the altered format of the special verdict form, and lack of objection ordinarily precludes an appellant from challenging the special verdict form on appeal. (See generally Electronic Equipment Express, Inc. v. Donald H. Seiler & Co. (1981) 122 Cal.App.3d 834, 858.) We need not evaluate whether the issue is preserved because we conclude any error was harmless.
A civil conspiracy claim requires, among other things, that the plaintiff prove "the defendant had knowledge of and agreed to both the objective and the course of action that resulted in the injury . . . ." (Berg & Berg Enterprises, LLC v. Sherwood Partners, Inc. (2005) 131 Cal.App.4th 802, 823 [italics added]; accord, Kidron v. Movie Acquisition Corp., supra, 40 Cal.App.4th at p. 1582 ["The conspiring defendants must . . . have actual knowledge that a tort is planned and concur in the tortious scheme with knowledge of its unlawful purpose"].) It is not sufficient to show the defendant was aware the active tortfeasor intended to commit a tort; instead, "[k]nowledge of the planned tort must be combined with intent to aid in its commission." (Kidron, supra.)
Here, there is no evidence Hawkins's intended objective or goal was to tortiously injure Kalas, much less that RBPG was aware of and agreed to aid in that objective. At most, the evidence showed RBPG was aware of and consented to Hawkins's planned course of action--to operate the backhoe in violation of various provisions of the Vehicle Code. Because Kalas's conspiracy claim appears inconsistent with the requirements for proving a conspiracy, and Kalas cites no relevant authority to support the novel theory that conspiracy liability can attach when the active tortfeasor acted negligently (rather than intentionally) and the alleged coconspirator therefore necessarily lacked actual knowledge of the plan to tortiously injure the plaintiff, we conclude that the court's failure to permit a jury finding on the conspiracy theory was not error, regardless of the court's reason.
DISPOSITION
The order denying RBPG's JNOV motion as to vicarious liability based on respondent superior liability is reversed, and the court shall enter a new order granting that aspect of RBPG's JNOV motion. The order granting RBPG's JNOV motion as to direct liability is reversed and the court shall enter a new order denying that aspect of RBPG's JNOV motion. Because any error in the special verdict form was harmless, Kalas is not entitled to a new trial on her conspiracy claim. The matter is remanded to the trial court for reallocation of the damages consistent with the foregoing directions. The parties shall bear their own costs on appeal.
WE CONCUR: HUFFMAN, Acting P. J., HALLER, J.