Dennis DUCEY et al., Plaintiffs, Appellants and Respondents, v. ARGO SALES CO., Defendant and Respondent, State of California, Defendant and Appellant.
After trial by jury, the State of California appeals from a judgment, and from an order denying a motion for judgment notwithstanding the verdict, where $480,000 was awarded to plaintiff Patricia Ducey and $30,000 to plaintiff Dennis Ducey for injuries suffered in a freeway accident. The Duceys have at the same time appealed from a judgment based on a verdict in favor of another defendant, Argo Sales Co.
Shortly before noon on February 28, 1972, Mark Hunter entered Highway 17 (the Nimitz Freeway) at the north-bound Thornton Avenue onramp in Fremont and found that traffic was heavily backed up in both northbound lanes. In the backed-up traffic was a vehicle driven by Terry Kelsey. The cause of the congestion was a pickup being driven by a 13-year-old “mentally retarded or emotionally disturbed boy” who had decided to visit his doctor. The pickup was swerving erratically from the oleander bushes in the median, across both lanes to the oleander bushes on the right-hand shoulder of the highway.
Both Hunter and Kelsey managed to pass the weaving pickup. Hunter and Kelsey then gradually slowed their respective vehicles, forcing the pickup to a stop.
Behind the vehicles just mentioned, Rick McEwen was driving at 65 miles per hour in the fast, northbound lane. He saw that traffic in front of him slowed and then came to a “pretty quick halt”; he slowed without any difficulty, but saw in his rearview mirror a blue Maverick “coming up quite fast” behind him.
McEwen next saw the front of the Maverick dip as though the brakes were set; the car traveled across the median “just like a blue blur,” and violently struck the oncoming Ducey vehicle.
Patricia Ducey, who was driving the Ducey car, suffered severe personal injuries and brain damage and has no recollection of the accident. Dennis Ducey, who was riding in the front passenger seat, was looking into the back-seat area, and did not see the oncoming car; after the impact he remained unconscious for some time. Dolores Glass, the driver of the Maverick, was killed.
Analysis of skid marks and other physical evidence supported expert opinion that Mrs. Glass had lost control of her car in a centrifugal skid on the pavement before it crashed through the median area into opposing traffic.
State Route 17, in the vicinity of the accident in question, consisted of two 12-foot, northbound lanes and two 12-foot, southbound lanes, separated by a 46-foot-wide dirt median area planted with oleander bushes. The freeway was built in 1958. From 1965 to 1969, traffic along the stretch of Highway 17 between Warm Springs Boulevard and Jarvis Avenue in the City of Fremont, which includes the site of the Ducey-Glass accident, grew in volume by more than 40 percent.
There was evidence that a properly built median barrier effectively eliminates all cross-median freeway accidents. The criteria and factors considered by the state in determining whether a median barrier should be installed in a given stretch of freeway are called “warrants,” in the manuals which the Department of Transportation issues for the guidance of its planning staff. Prior to 1964, the department's standards provided that a median barrier was warranted when average daily traffic on a freeway reached 60,000 automobiles. The 1965 standard was that a median barrier would be warranted when average daily traffic reached 40,000 and the median area was less than 46 feet wide. Under the 1968 standard, a median barrier was justified where the median area on an existing highway was 46 feet and average daily traffic was 40,000 vehicles. The 1970 standard provided that a median barrier was justified where the median area was less than 50 feet and average daily traffic had reached 40,000 vehicles. Under these standards, a median barrier should have been installed on the stretch of highway in question after November of 1968.
In June of 1967, a member of the department's engineering staff sent a memo to District 4 headquarters (responsible for the San Francisco Bay Area) requesting “that (median) barriers be installed at all locations meeting barrier warrants unless reconstruction will cause the removal of the barrier within three years of the barrier installation for cable barriers or within five years for beam barriers.” In response, District 4 personnel prepared a report (hereinafter the “Greene Report”) which it submitted to Sacramento headquarters on November 30, 1967, for review and possible presentation to the Highway Commission for funding. The report stated that the “warrants” for construction of a median barrier had then been met. It reviewed accident history and traffic volumes in a 16.55-mile area of Highway 17, and pointed out that, in the past 31/2 years, 18 cross-median accidents had occurred in the 8.44-mile stretch of Highway 17 which included the accident site in question. The report recommended construction of a cable-type median barrier along both this 8.44-mile stretch and the adjacent 8-mile stretch of Highway 17 south of the accident site area.
The Greene Report formed the basis of a request by the Department of Transportation to the Highway Commission for funds to build a median barrier as recommended. On July 12, 1968, the Highway Commission approved the request and authorized the allocation of $220,000 for the construction of the median barrier. On or about November 15, 1968, a construction contract in that amount was awarded to U. S. Steel Corporation. But by a change order the stretch of freeway where the accident occurred was deleted from the project upon a determination that a future widening project would include construction of a metal beam barrier. Unfortunately, that work had not been done by the time of the accident, three years later.
Appellant State of California contends that the trial court should have granted the state's motion for a nonsuit and for a judgment notwithstanding the verdict because there is no substantial evidence to support a finding that a “dangerous condition” existed or that, if a dangerous condition did exist, it was the proximate cause of the Duceys' injuries.
In order to establish the liability of a public entity for a dangerous condition of public property under the Tort Claims Act of 1963 (Gov. Code, s 810 et seq.), a plaintiff must prove that (1) the property was in a dangerous condition at the time of the injury; (2) the injury was proximately caused by the dangerous condition; (3) the dangerous condition created a reasonably foreseeable risk of the kind of injury which occurred; and (4) the public entity had actual or constructive notice of the dangerous condition a sufficient time prior to the injury to have taken measures to protect against the dangerous condition. (See Gov. Code, s 835;1 Baldwin v. State of California (1972) 6 Cal.3d 424, 427, 99 Cal.Rptr. 145, 491 P.2d 1121; Callahan v. City and County of San Francisco (1971) 15 Cal.App.3d 374, 378, 93 Cal.Rptr. 122.)
A dangerous condition of public property is defined as “a condition of property that creates a substantial (as distinguished from a minor, trivial or insignificant) risk of injury when such property . . . is used with due care in a manner in which it is reasonably foreseeable that it will be used.” (Gov. Code, s 830, subd. (a); see Bakity v. County of Riverside (1970) 12 Cal.App.3d 24, 30, 90 Cal.Rptr. 541.)
“ Existence of a dangerous condition is usually a question of fact for the jury (Bakity v. County of Riverside, 12 Cal.App.3d 24, 30, 90 Cal.Rptr. 541). But both statutory (Gov. Code, s 830.2) and decisional law (Callahan v. City and County of San Francisco, 15 Cal.App.3d 374, 378-379, 93 Cal.Rptr. 122) recognize that the evidence may, as a matter of law show, ‘that the risk created by the condition was of such a minor, trivial or insignificant nature . . . that no reasonable person would conclude that the condition created a substantial risk of injury when such property . . . was used with due care in a manner in which it was reasonably foreseeable that it would be used.’ ” (McKray v. State of California (1977) 74 Cal.App.3d 59, 62, 141 Cal.Rptr. 280, 281; see Van Alstyne, Cal. Government Tort Liability (Cont.Ed.Bar 1964) ss 6.12-6.14, pp. 191-196.)
In the present case, the only possible evidence of a defective condition of the highway created by the state was the lack of a median barrier. There were no obstructions, curves, holes, cracks or any other conditions of the highway creating or contributing to a dangerous condition of public property. (Cf. Harland v. State of California (1977) 75 Cal.App.3d 475, 484-485, 142 Cal.Rptr. 201.)
The state is not an insurer of the safety of those who use public property. But the state has by statute accepted the duty to build and maintain its highways in such a manner as not to create a substantial risk of injury for the driving public when the highways are used with due care in a foreseeable manner. The present record contains evidence that there had been many cross-median accidents along this busy stretch of highway; but there was no evidence that would support a finding that the lack of a median barrier created a substantial risk of injury to the public generally, when the highway was being used with due care in a foreseeable manner. (See Callahan v. City and County of San Francisco (1967) 249 Cal.App.2d 696, 702-703, 57 Cal.Rptr. 639; see also Shipley v. City of Arroyo Grande (1949) 92 Cal.App.2d 748, 208 P.2d 51.)
The Duceys contend that the judgment in favor of Argo Sales Co. must be reversed because the evidence demonstrates as a matter of law that Dolores Glass was acting within the scope of her employment while driving home from work on the day of the accident. The argument is that the evidence shows, as a matter of law, that the use of her personal vehicle was an implied condition of Glass' employment.
Under the doctrine of respondeat superior, an employer is liable for the torts of his employees committed within the scope of their employment (see Civ. Code, s 2338; see also Vind v. Asamblea Apostolica, Christo Jesus (1957) 148 Cal.App.2d 597, 604, 307 P.2d 85; 1 Witkin, Summary of Cal. Law (8th ed. 1973) s 155, p. 754). The burden of proof is on the plaintiff to demonstrate that the negligent act was committed within the scope of employment (29 Cal.Jur.3d, Employer and Employee, s 100, p. 648). Whether an act is within the scope of employment is a question of fact (see Harvey v. D & L Construction Co. (1967) 251 Cal.App.2d 48, 52, 59 Cal.Rptr. 255; De Mirjian v. Ideal Heating Corp. (1954) 129 Cal.App.2d 758, 771, 278 P.2d 114).
Under the so-called “going and coming rule,” an employee is not regarded as acting within the scope of his employment while going to or coming from his place of work. (Hinman v. Westinghouse Elec. Co. (1970) 2 Cal.3d 956, 961, 88 Cal.Rptr. 188, 471 P.2d 988; Harris v. Oro-Dam Constructors (1969) 269 Cal.App.2d 911, 912, 75 Cal.Rptr. 544; Harvey v. D & L Construction Co., supra, 251 Cal.App.2d 48, 51, 59 Cal.Rptr. 255; 1 Witkin, Summary of Cal. Law, Supra, s 167, at p. 766.) The courts, however, have recognized several exceptions to the “going and coming” rule.
In the “going and coming” cases, the California courts often cite tort and worker's compensation cases interchangeably. As Mr. Witkin points out, however, “This practice has been questioned, for compensation rules were developed from a distinct social philosophy, with fault eliminated as a test, and liberal construction of the act required.” (1 Witkin, Summary of Cal. Law, Supra, s 167, p. 766; see Church v. Arko (1977) 75 Cal.App.3d 291, 142 Cal.Rptr. 92; Harris v. Oro-Dam Constructors, supra, 269 Cal.App.2d 911, 914, 75 Cal.Rptr. 544; McGarvey v. Pacific Gas & Elec. Co. (1971) 18 Cal.App.3d 555, 563, 95 Cal.Rptr. 894; 29 Cal.Jur.3d, Supra, Employer and Employee, s 105, p. 663.) In Hinman v. Westinghouse Elec. Co., the California Supreme Court relied upon worker's compensation cases, stating that “Although the test under the workmen's compensation law of ‘arising out of and in the course of the employment’ (Lab. Code, s 3600), is not identical with the test of ‘scope of employment’ under the Respondeat superior doctrine . . . the two tests are closely related . . . .” (2 Cal.3d at fn. 3, p. 962, 88 Cal.Rptr. at p. 191, 471 P.2d at p. 991.)
The courts have recognized an exception to the “going and coming” rule where the employer compensates the employee for travel time. (Hinojosa v. Workmen's Comp. Appeals Bd. (1972) 8 Cal.3d 150, 159, 104 Cal.Rptr. 456, 501 P.2d 1176; Hinman v. Westinghouse Elec. Co., supra, 2 Cal.3d 956, 962, 88 Cal.Rptr. 188, 471 P.2d 988.) An exception has also been recognized where a negligent act was committed while the employee was engaged in a special errand for the employer. (See Trejo v. Maciel (1966) 239 Cal.App.2d 487, 48 Cal.Rptr. 765; 29 Cal.Jur.3d, Employer and Employee, s 106, p. 664.) In the present case, Argo Sales Co. did not defray Glass' travel expenses or compensate her for travel time. She was not engaged in a special errand for her employer at the time of the accident.
The “going and coming” rule has also been held inapplicable, however, in cases where the employer requires an employee to furnish a vehicle of transportation on the job. (See Hinojosa v. Workmen's Comp. Appeals Bd., supra, 8 Cal.3d 150, 160, 104 Cal.Rptr. 456, 501 P.2d 1176; Smith v. Workmen's Comp. Appeals Bd. (1968) 69 Cal.2d 814, 73 Cal.Rptr. 253, 447 P.2d 365; Richards v. Metropolitan Life Ins. Co. (1941) 19 Cal.2d 236, 120 P.2d 650; Huntsinger v. Glass Containers Corp. (1972) 22 Cal.App.3d 803, 807, 99 Cal.Rptr. 666.) The evidence does not establish as a matter of law that the company required Glass, as a condition of her employment, to commute to work in her personal car. The job was not one that embraced driving, and Glass was not required to use her vehicle for field work. Although there was evidence that she occasionally ran errands for her employer, these trips were not conclusively shown to be a condition of her employment. The jury could reasonably have believed that Glass was acting as a volunteer in running occasional errands for replacement items. She was not engaged in such an errand at the time of the accident. There is no evidence that Glass was required to go from location to location during the day. (Cf. Hinojosa v. Workmen's Comp. Appeals Bd., supra, 8 Cal.3d 150, 161, 104 Cal.Rptr. 456, 501 P.2d 1176.) Although Glass transported cleaning materials in her car to her place of work, the evidence does not establish as a matter of law that Glass was required to transport that equipment. The employer provided “ample storage space” and garages at each tract in which cleaning equipment could have been stored. The jury could have found that the taking of equipment home each night was for the personal benefit and convenience of Glass, who worked at other cleaning jobs, and was thus merely incidental to her employment. (See Hinson v. Workmen's Comp. Appeals Bd. (1974) 42 Cal.App.3d 246, 251, 116 Cal.Rptr. 792.) The evidence does not establish as a matter of law that Argo Sales Co. should have been held liable for the results of Glass' negligent conduct.
The judgment in favor of the Duceys and against the State of California is reversed with directions to render judgment of dismissal. The judgment in favor of Argo Sales is affirmed. The State of California and Argo Sales Co. will recover costs from the Duceys.
I concur in affirmance of the judgment in favor of Argo Sales. As to reversal of the judgment in favor of the Duceys and against the State of California, I respectfully dissent.
I disagree with the statement in the majority opinion that “there was no evidence that would support a finding that the lack of a median barrier created a substantial risk of injury to the public generally, when the highway was being used with due care in a foreseeable manner.” Such evidence appears in the 1964-1967 traffic-volume data and cross-median accident rate shown in the Greene Report. Among other things, the report described the traffic volume as increasing and the accident rate as “unusually high.”
The report's depiction of these conditions was evidence that the lack of a median barrier “created a substantial risk of injury” to any motoring member of the “public generally,” who was using the highway “with due care in a foreseeable manner,” from the lethal consequences of a wrong-way cross-median intrusion foreseeably to be caused by another motorist. The author of the report obviously reached this conclusion from the evidence when he recommended that a barrier be installed. An expert witness corroborated the validity of the recommendation and the reasons for it.
Finding “no” evidence of the substantial risk perceived by the experts, the majority opinion in effect holds that both of them were wrong. That determination was to be made by the jury, which found that a dangerous and defective condition existed and that it contributed to the accident as a proximate cause. I think the findings should stand because they are supported by substantial evidence. I would therefore affirm the judgment in favor of the Duceys.
1. Government Code section 835:“Except as provided by statute, a public entity is liable for injury caused by a dangerous condition of its property if the plaintiff establishes that the property was in a dangerous condition at the time of the injury, that the injury was proximately caused by the dangerous condition, that the dangerous condition created a reasonably foreseeable risk of the kind of injury which was incurred, and that either:“(a) A negligent or wrongful act or omission of an employee of the public entity within the scope of his employment created the dangerous condition; or“(b) The public entity had actual or constructive notice of the dangerous condition under Section 835.2 a sufficient time prior to the injury to have taken measures to protect against the dangerous condition.”
CHRISTIAN, Associate Justice.
CALDECOTT, P. J., concurs.