Daily Blast October 1, 2013

Today, the Court of Appeal, Fifth Appellate District (Fresno) issued an opinion in Halliburton Energy Services. Inc. v. Department of Transportation (Oct. 1, 2013, F064888) ___ Cal.App.4th ___ holding that “there is no respondeat superior liability if the employee substantially departs from the employer’s business or is engaged in a purely personal activity at the time of the tortious injury.” (Slip opn., p. 10.)

Plaintiff Martinez was employed by Halliburton as a directional driller. He was assigned a company pickup truck to drive. He was told he could use the company vehicle to get to work and back and to run personal errands that were directly en route. (Slip opn., p. 2.) In September 2009, Martinez was assigned to work on an oil rig near Seal Beach. The job was expected to take two to three weeks. (Id. at p. 3.) Martinez worked a shift that began at 9:00 p.m. on September 12, 2009 and ended at 9:00 a.m. on September 13, 2009. After his shift on the oil rig ended that morning, he got in the company pickup, and traveled approximately 140 miles to Bakersfield, where he met his wife and daughter at a car dealership to purchase a vehicle for his wife. The deal fell through and Martinez and his family went to a restaurant and had lunch. Martinez then began the return trip to his hotel in Seal Beach, where he planned to eat while he waited for the boat back to the oil rig for his 9:00 p.m. shift. Approximately 20 miles south of Bakersfield, he was involved in an accident. (Ibid.) The injured drivers alleged a negligence cause of action against Martinez and Halliburton. The trial court granted Halliburton’s summary judgment motions. (Id. at p. 4.)

The Court of Appeal affirmed. The court held that “the incidental benefit exception to the going and coming rule may bring the employee’s commute to and from work within the scope of the employee’s employment, if the employee does not deviate substantially from a direct commute in order to carry out his own personal business. The exception does not apply, however, if the employee substantially departs from his or her employment duties during the commute. It also does not apply if the employee’s entire trip serves only his or her own personal purposes.” (Slip opn., pp. 16-17.) The court concluded that Martinez was departing substantially from his commute and his job duties at the time of the accident. Further, there was no necessary nexus between Martinez’s activities at the time of the accident and Halliburton’s business enterprise. As a result, the trial court correctly determined that Halliburton could not be held liable to plaintiffs on a respondeat superior theory. (Id. at p. 21.)

Further, the court cited the recent case of Moradi v. Marsh USA, Inc. (Sept. 17, 2013, B239858) __Cal.App.4th __ risk of a traffic accident during this personal trip was not a risk inherent in or ‘typical of or broadly incidental to’ Halliburton’s enterprise.” (Slip opn., p. 17 quoting Bailey v. Filco, Inc. (1996) 48 Cal.App.4th 1552, 1558-1559.)

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