C.A. 4th
E052434

The Fourth Appellate District reversed a judgment. The court held that it could be found that a subcontractor’s employee acted within the scope of his employment when he complied with another subcontractor’s request to move his personal vehicle out of the way of a cement truck.

Augustus Vogt worked for the concrete subcontractor on a large construction project. Herron Construction, Inc. was the framing contractor for the project. Herron employee Jesus Cruz had parked his personal pickup truck close to where Vogt’s employer was about to start pouring cement. Because Cruz’s truck was in the way, Vogt asked him to move it. According to Vogt’s later testimony, he made this request for several reasons. First, Cruz’s truck was blocking the cement truck. Second, Vogt was concerned about liability — “[W]e don’t want the liability of splashing the paint.” Third, he asked “as a courtesy” to Cruz.

In moving his truck, Cruz inadvertently ran over Vogt, severely injuring him.

Vogt sued Herron for his injuries.

The trial court granted summary judgment for Herron, finding it was not liable on a respondeat superior theory because Cruz was not acting in the course and scope of his employment when the accident occurred.

The court of appeal reversed, holding that there was a triable issue of fact as to whether Cruz was acting within the scope of his employment when the accident occurred.

It could be inferred from Vogt’s testimony, the court found, that Cruz, by moving his truck, furthered the overall construction of the project. Vogt’s employer could not pour concrete so long as Cruz’s truck was in the way. Thus, even though it could be argued that Herron’s particular “enterprise” was limited to framing and did not encompass other trades, such as concrete, this view was too narrow. A subcontractor whose employees interfere with timely performance by other subcontractors is not long for the construction industry. The evidence established that the need to move one’s personal vehicle when it got in the way of another subcontractor was an “outgrowth” of the employment, “inherent in the working environment,” and “typical of or broadly incidental to the [employer’s] enterprise” for respondeat superior purposes.

The court rejected Herron’s argument that it was creating a duty of cooperation – a requirement that the employee of one subcontractor comply with the directions of another subcontractor – to the detriment of the employer’s ability to control its own employees. Common sense dictated that regardless of whether any subcontractor had a “duty” not to delay the work of other subcontractors on a project, it nonetheless had a business interest, motivated by the prospect of future employment, in not unreasonably interfering with the other subcontractors’ work. Thus, by agreeing to move his truck, Cruz was furthering the interests of his employer, as well the interests of Vogt’s employer. The resulting risk of injury was inherent to the enterprise, the court said.

Such a premise, the court explained, does not diminish a subcontractor’s ability to control its employees. Herron could have told its employees that, if another subcontractor asked them to move their personal vehicles – even to facilitate construction – they were to contact a supervisor and ask permission first. But the very absurdity of such a requirement highlighted the fact that it was in Herron’s interest for its employees to cooperate voluntarily.

Alternatively, even if the evidence established that Cruz’s sole subjective reason for moving the truck was to prevent damage to it, respondeat superior would still apply. Moving the truck in such a circumstance was necessary to Cruz’s comfort, convenience, and welfare while on the job. It thus was still within the scope of his employment.