Breedlove v. Stout
Breedlove v. Stout
Opinion of the Court
When an employee leaves his workplace in his own vehicle after his shift ends, but decides, without his
FACTS
In late December 1995, after finishing his shift as a supervisor at Canfor U.S.A. Corporation’s lumber reprocessing mill, Donald Stout punched out, drove off the Canfor premises, and then decided to return to the mill. As he crossed over to a gravel turnout on the opposite side of the road, his car struck Benjamin Breedlove’s motorcycle. Breedlove hit the car, flew over his motorcycle, and suffered a traumatic brain injury.
Breedlove initially sued only Stout, but then amended his complaint to include a vicarious liability claim against Canfor. This claim alleged that because Stout turned around to retrieve a lumber grading book he intended to study over the Christmas holiday, he was acting in the scope of his employment, and Canfor should assume partial liability for the consequences of his negligent driving. In response to Breedlove’s motion for summary judgment on this issue, Canfor filed a cross-motion for summary judgment alleging that when the accident occurred, Stout was not acting on Canfor’s behalf because he told police after the accident that he turned around to meet some coworkers to celebrate a birthday.
The trial court concluded that the dispute about Stout’s reason for making the negligent turn did not preclude granting Canfor’s motion because even assuming Stout had returned to retrieve the manual, the "going and coming” doctrine, which absolves employers from liability for the negligent acts of employees commuting to and from work, applied:
*69 The fact that he’s turned around and going back to get the manual because he forgot it really doesn’t change anything, and I don’t think there’s any qualitative difference between going to and from work and getting the manual. He’s not doing an errand for the company, and so if the [going and coming] doctrine is alive at all, then I think the defendant’s position is well taken.
Breedlove appeals the summary dismissal of his claims against Canfor,
DISCUSSION
Under the respondeat superior doctrine, an employer may be liable for its employee’s negligence in causing injuries to third persons if the employee was within the “scope of employment” at the time of the occurrence.
Both parties cite Dickinson v. Edwards
whether the employee was, at the time, engaged in the performance of the duties required of him by his contract of employment, or by specific direction of his employer; or, as sometimes stated, whether he was engaged at the time in the furtherance of the employer’s interest.[7 ]
But instead of “damaging the ‘going and coming’ rule” by carving out an exception tailored to the facts before it, the court chose instead to “set forth a new application of the doctrine of respondeat superior” that applies specifically to banquet-hosting employers.
Dickinson does, however, recognize “several exceptions”
The only reason that she was driving at all at the time was to go home, as usual; en route there, she remembered she had forgotten the list she wished to work on at home, so she returned to the office to obtain it, again for her own personal convenience. Her traveling at the time was no more employment-connected than at any other time when she was on her way to work or going home. The fact that [her employer] might benefit eventually by the work she planned to do at home was purely incidental to and not connected with her traveling. Her trip at the time was not contemplated by [her employer] and the accident cannot be regarded as a risk of harm fairly attributable to [the employer’s] business.[16 ]
This reasoning is logical, and it applies with equal force to this case. In his deposition, Stout stated that he sometimes “studied in the mill” but decided on the night of the accident to take the lumber grading manual home because he “want[ed] to know as much as [he could].” As in Pierce, although Stout’s studying could ultimately benefit Canfor, his trip back to work, by itself, was neither at Canfor’s request nor sufficiently connected to his employment as a lumber mill supervisor to implicate the employer in the consequences of his negligent driving.
Faced with a similar factual scenario, the Oregon Court of Appeals reached the same result as the Pierce court. In
We are not persuaded by Breedlove’s reliance on Tuttle v. Muenks
We agree with Pierce and Runyan, and hold that Stout’s trip back to work, undertaken without Canfor’s knowledge or control, was functionally identical to commuting and therefore falls squarely within the going and coming rule.
Affirmed.
Grosse and Cox, JJ., concur.
Breedlove sought discretionary review of this order, but a commissioner of this court denied the motion and dismissed the appeal pending resolution of Breedlove’s claims against Stout.
Breedlove has settled with Stout.
Dickinson v. Edwards, 105 Wn.2d 457, 466, 716 P.2d 814 (1986).
Aloha Lumber Corp. v. Dep’t of Labor & Indus., 77 Wn.2d 763, 766, 466 P.2d 151 (1970).
Where there can be only one reasonable inference from undisputed facts, the issue of scope of employment may be resolved at summary judgment. Strachan v. Kitsap County, 27 Wn. App. 271, 274-75, 616 P.2d 1251, review denied, 94 Wn.2d 1025 (1980).
105 Wn.2d 457, 716 P.2d 814 (1986).
Id. at 467 (quoting Elder v. Cisco Constr. Co., 52 Wn.2d 241, 245, 324 P.2d 1082 (1958)) (emphasis omitted).
Id. at 468.
Id. at 467.
77 Wn.2d 763, 766, 466 P.2d 151 (1970). See also Westinghouse Elec. Corp. v. Dep’t of Labor & Indus., 94 Wn.2d 875, 880, 621 P.2d 147 (1980).
35 Wn. App. 259, 262, 665 P.2d 1386, review denied, 100 Wn.2d 1021 (1983).
Id. A New York court distinguished the “special errand” exception and the “dual purpose” exception as follows:
[T]he special errand exception may be invoked when an employee, travelling to or from home, has engaged in a work-related errand. The dual purpose exception may apply when an employee is injured in transit to or from a location off the employer’s premises when the employee’s presence at that location served both a business and personal purpose.
Neacosia v. N.Y. Power Auth., 85 N.Y.2d 471, 476 n.*, 649 N.E.2d 1188, 1190 n.* (1995).
At oral argument, Canfor indicated that Elder v. Cisco Construction Co., 52 Wn.2d 241, applies directly to these facts. But in that case, the court held that the employer of several men who ended their shift, became intoxicated in a tavern, and hit the plaintiff en route to their workplace was not vicariously liable for the plaintiffs injuries because, among other things, the men were “free to do as they pleased” after their shifts ended. Id. at 246. Here, we assume for summary judgment purposes that Stout was returning to work solely for a work-related purpose.
See Christopher Vaeth, Annotation, Employer’s Liability for Negligence of Employee in Driving His or Her Own Automobile, 27 A.L.R.5th 174 (1995).
519 So. 2d 251 (La. Ct. App. 1988).
86 Or. App. 542, 740 P.2d 209, review denied, 744 P.2d 1003 (1987).
Id. 740 P.2d at 210. Danielle Breedlove also argues that the going and coming rule does not apply because Stout was not “going to work.” He had just finished his shift, and, she asserts, “[h]is movements at the time of the collision with Breedlove were not an inevitable and unavoidable occurrence attendant with his employment, i.e. getting to or from work but, instead, were taking place to serve his employer’s interest and, therefore, do not fall within the going-and-coming exception.” This argument does not acknowledge that the exceptions to the going and coming rule necessarily address circumstances that fall outside the rule.
Id. at 211-12. As one rationale for its decision, the court stated that the going and coming rule should not be applied as liberally to attach vicarious liability to employers as it is to ensure that injured workers obtain compensation.
964 S.W.2d 514 (Mo. Ct. App. 1998).
3 30 S.C. 311, 498 S.E.2d 684 (1998).
See also Duff v. Vazquez, 544 So. 2d 1124 (Fla. Dist. Ct. App. 1989). In that case, as here, an off-duty employee who caused an accident on the way to his workplace offered two contradictory explanations for his purpose for returning to work—one social and one work-related. The court held that because the record did not suggest that the employer either sent the employee on any special errand or knew that the employee would be going to the store at that time, summary dismissal of the employer was warranted. A contrary conclusion, reasoned the court, would “allow the question of Defendant’s liability to depend on the fluctuating subjective and personal thoughts of the employee/driver over whom the Defendant has no control. .. .” Id. at 1125. We agree that the subjective thoughts of the employee should not control this analysis.
Reference
- Full Case Name
- Benjamin Lee Breedlove v. Donald Douglas Stout
- Cited By
- 13 cases
- Status
- Published