When is an employee acting in course and scope of employment, making an employer liable for his acts, omissions and personal safety? The answer varies depending on job description, employment terms and a number of factors. In Vogt v. Herron Const., Inc. (Cal.App. 4 Dist.) the Court of Appeal found a framing contractor's employee was acting within the course and scope of his employment when he moved his truck on a job site. The facts of this case show just how harsh this ruling might be for contractor employers:
Herron was the framing subcontractor on a construction project in Riverside. Jesus Cruz was an employee of Herron. His job duties did not include driving.
On October 31, 2007, Cruz parked his own personal pickup truck at the worksite. No one had told him where to park. There was no designated parking area for subcontractors' employees. Employees typically parked near wherever they were assigned to work that day.
Performance Concrete (Performance) was the concrete subcontractor on the project. Vogt was an employee of Performance. When he noticed Cruz's truck, he thought, "Hey, we got to move th[at] because we can't get the cement truck in." He then asked Cruz to move his truck; he explained that Performance was about to start pouring cement nearby.
It was "normal" for construction workers to be asked to move their cars and other vehicles at a jobsite. As Vogt later explained, "It . . . happens all the time on a job site . . . . We're not going to pour if a car's there because we don't want the liability of splashing the paint."
When Cruz moved his truck, he ran over Vogt, injuring him.
Originally, Cruz and the general contractor, Lyle Parks, Jr., Inc. (Parks), were also defendants. The trial court granted summary judgment to the general contractor, dismissing the case in favor of Parks. Vogt settled with Cruz, leaving only the action between Vogt and his employer, Herron.
Herron argued that Cruz was not acting in the course and scope of his employment. However, the Court considered evidence 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." Here, employees were allowed to park their personal vehicles at the worksite during working hours, and it was foreseeable that they would have to move them when they got in the way of construction.
Sending the case back to the trial court, the Appellate Court found that Cruz was acting in the course and scope of his employment, because moving the truck served the employer's overall enterprise, and was necessary to the employee's comfort, convenience, and welfare while on the job.
This case raises a number of issues for employers in the construction industry. Often, parking on the job site is the only parking available for employees, especially in remote sites. Job sites can become crowded, and by their very nature, there is a lot going on (including, as in this case, the arrival of a concrete pour truck). It's a good idea to make sure employees know that safety rules cover the entire site, but you might also want to consider some precautionary measures to prevent liability for employee v. employee accidents like the one in this case.
As always, this information is offered as a service to clients and the community, and is not intended as legal advice or as an advertisement for legal services. Nothing in here is intended to create an attorney client relationship, and every case is different. I offer free thirty minute consultations to employers with employment law questions, and my firm is a proud member of the Santa Barbara and Ventura Contractors' Associations.