Mark Bingener v. City of Los Angeles

Mark and Eric Bingener appeal the trial court’s grant of

the City of Los Angeles’s (City) motion for summary judgment.

The City argued that it was not liable for the injuries caused by

Kim Rushton because he was not acting within the course of his

employment at the time of the accident. Specifically, the City

argued that the coming and going rule insulated it from liability.

It is undisputed that on February 24, 2015, an employee of

the City, Rushton, struck and killed pedestrian Ralph Bingener.

It is also undisputed that when the accident occurred, Rushton

was commuting to work in his own car and on his usual morning

route and was not performing work for the City while driving to

work. The parties also agree that, on the day of the accident,

Rushton was driving to his workplace at the Hyperion Treatment

Plant, where he worked in a water quality lab checking water for

semi-volatile organic compounds. A self-described “lab rat,”

Rushton’s job did not require him to be in the field or use his

personal automobile for his employment. The City moved for

summary judgment on these uncontroverted facts, arguing that

because the “going and coming rule” applied, without exception,

to this case, the City was not liable under respondeat superior for

the accident.

Plaintiffs countered that there was a dispute of fact

regarding an exception to the going and coming rule–the “workspawned risk” exception. This exception applies when an

employee endangers other with a risk arising from or related to

work. For example, where an employee gets into a car accident

on the way home after drinking alcohol at work with his

supervisor’s permission, courts have carved out an exception to

the going and coming rule. Where, as in such a case, there is a

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sufficient link between the drinking and the accidents as to make

the collisions neither starling nor unusual, the courts have found

that the risk was one that may be regarded as typical of or

broadly incidental to the employer’s enterprise. (Childers v.

Shasta Livestock Auction Yard, Inc. (1987) 190 Cal.App.3d 792;

see Bussard v. Minimed, Inc. (2003) 105 Cal.App.4th 798, 803,

807 (Bussard) [employee’s exposure to pesticides during work

hours impaired her ability to safely drive home and, therefore,

the going and coming rule did not apply].)

Applying this exception to the facts here, plaintiffs argued

that the City knew about Rushton’s health conditions and how it

might impair his ability to drive because certain medical

expenses were being paid for Rushton’s back injury through the

City’s worker compensation program. According to plaintiffs,

Rushton’s then-present injuries and medications rendered him

unfit to drive. Despite this knowledge, the City allowed Rushton

to return to work prematurely without placing any restrictions on

his driving. Given that Rushton was impaired and unfit to drive,

his driving to work was a foreseeable risk of the City’s activities.

The City, should, therefore, be held liable for “a negligently

created work-spawned risk endangering the public.”

We affirm the judgment. At summary judgment, plaintiffs

failed to adduce sufficient facts upon which they could establish a

triable issue of fact on their claim that Rushton’s accident was a

foreseeable event arising from or relating to his employment for

the City at its water plant laboratory. Nothing about the

enterprise for which the City employed Rushton made his hitting

a pedestrian while commuting a foreseeable risk of this

enterprise. The “going and coming rule” was created for precisely

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the situation presented here and its application in this case

precludes plaintiffs’ claim of vicarious liability against the City.

BACKGROUND FACTS

The parties do not dispute the essential facts in this case.

All agree that Rushton was employed as a chemist at the

Hyperion Treatment Plant for over twenty years. Rushton

performed his analysis of water samples only at the lab and

rarely left the plant on work-related travel. Rushton’s job did not

require him to work in the field and his employer did not require

him to use his car at work. Rushton was not compensated for his

commute time.

At the time of the accident, Rushton was 68 years old and

receiving treatment for chronic health problems, including

neuropathy in his feet, a tremor and occasional seizures, which

caused him to have a few seconds of a déjà vu feeling and a “kick

in the pit of my stomach.” These conditions, including his seizure

condition, were well controlled and Rushton testified at his

deposition that “[his neurologic condition was] the best I’ve ever

been right now.” Rushton used a walking stick at the workplace

and took various medications.1



Rushton testified that none of these conditions or

medications interfered with his ability to operate a vehicle.

Rushton also stated that his health conditions did not contribute

to the accident in any way. Rushton testified that he felt great on

the morning of the accident and hadn’t taken any medications.2

1 Rushton’s supervisor never saw Rushton taking medications during

the work day.

2

The facts cited by the Bingeners to controvert Rushton’s own

statement regarding when he took his medications and whether he

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In December 2014, Rushton had a fall at work when he

bent over while carrying paperwork. Rushton was out of work

due to that injury until the week of February 2, 2015. Rushton

was diagnosed with lower back strain and was prescribed

medication. Rushton’s physicians cleared him to return to work

on February 2, 2015 with restrictions on standing and/or walking

for more than four hours a day, and stooping, bending, kneeling

and squatting. The doctors placed no restriction on Rushton

driving. On February 20, 2015, Rushton received an epidural

injection of steroids to relieve his back pain.

On the day of the accident, Rushton awoke feeling fine. He

had not ingested alcohol the evening before and was not under

the influence of any drugs or medications at the time of the

accident.

As he was driving through dark streets in Culver City

going about 40 to 50 mph, he struck Ralph Bingener, a

pedestrian.3 Rushton testified that he had no warning before

striking Bingener, who was stepping off the curb into a

crosswalk. After hitting Bingener, Rushton was in shock.

Rushton stopped his car and went to attend Bingener. Moments

later a number of nurses pulled up to the scene and started

was under the influence of those medicines at the time of the accident

do not support a reasonable inference to the contrary. Conjecture that

some combination of prescription medicine and underlying illness

impaired an employee’s ability to drive, where some of those

medications were prescribed due to a work-related injury sustained

months before, does not create a triable issue of fact about the issue

presented here—whether the employer should be vicariously liable for

the accident.

3 Rushton estimated his speed at 35 to 40 mph, but crash data showed

that his car was going approximately 48.5 mph at the point of impact.

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emergency treatment. The police and paramedics arrived shortly

thereafter, and later Rushton went with the police to the station.

Rushton did not appear to the officers to be under the influence of

any alcohol or drug at the time of the accident and, when PAS

tested, Rushton had no alcohol in his system. Officers at the

scene described Rushton as fully cooperative. Rushton was not

charged criminally as a result of the accident. Later

investigation disclosed that the streetlight on the corner that

Bingener stepped off from was inoperable.

The Department of Motor Vehicles later suspended

Rushton’s driver’s license. At that point in time, Rushton was

not driving his car. Rushton later had his driving privileges

reinstated and the City returned his parking pass to him.

Ralph Bingener’s surviving brothers filed a timely

Government Claims Act claim against the City, then filed a

complaint alleging that the City was vicariously liable for

Rushton’s negligence in the collision.4

The City moved for

summary judgment based on the going and coming rule.5

The

trial court agreed that the rule applied to Rushton, who was

engaged in his regular commute at the time of the accident. The

trial court entered judgment against the Bingeners on April 18,

2018.6

The Bingeners timely appealed.

4

Rushton was later added by a doe amendment.

5

Rushton did not join in that motion. Rushton was represented by

independent counsel and not defended by the City.

6

The Bingeners moved for a new trial, which was denied by the trial

court.

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DISCUSSION

I. Standard of Review

On appeal from the grant of summary judgment, we review

the record de novo and apply the same standard as did the trial

court. We identify the issues framed by the pleadings and then

determine whether “ ‘ “the moving party’s showing has

established facts which justify a judgment in moving party’s

favor” ’ ” on those issues. (Stokes v. Baker (2019) 35 Cal.App.5th

946, 956.) If the moving party has made that showing, we then

determine whether the opposition has demonstrated “ ‘ “the

existence of a triable, material factual issue.” ’ ” (Ibid.) In

making that determination, we keep in mind that the party

opposing the motion is entitled to have any reasonable inferences

from the facts drawn in its favor. (American Alternative Ins.

Corp. v. Superior Court (2006) 135 Cal.App.4th 1239, 1245.)

II. The City is not vicariously liable.

Under the doctrine of respondeat superior, an employer is

liable for the torts of its employees committed within the scope of

their employment. (Ducey v. Argo Sales Co. (1979) 25 Cal.3d 707,

721.) The burden of proof is on the plaintiff to demonstrate that

the negligent act was committed within the scope of employment.

(Ibid.) But where, as here, the facts relating to the applicability

of the doctrine are undisputed, the question of its application is

one of law. (Hinman v. Westinghouse Elec. Co. (1970) 2 Cal.3d

956, 962; Jeewarat v. Warner Bros. Entertainment Inc. (2009) 177

Cal.App.4th 427, 434.)

The doctrine is based upon a policy that the employer

should be responsible for losses caused by the torts of its

employees that occur in the conduct of the employer’s enterprise.

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(Depew v. Crocodile Enterprises, Inc. (1998) 63 Cal.App.4th 480,

486.) An employee is generally not considered to be acting within

the scope of his employment when going to or coming from his or

her regular place of work. (Ibid.; see also Bussard, supra, 105

Cal.App.4th at p. 804.)

This rule—the “ ‘going-and-coming rule’ ”—has several

exceptions, which are generally understood to encompass those

situations in which the employer derives some benefit from the

employee’s trip. (Depew v. Crocodile Enterprises, Inc., supra, 63

Cal.App.4th at p. 486.) In such instances, the employer’s

responsibility extends beyond his “actual or possible control of

the servant to injuries which are within the ‘risks of the

enterprise.’ ” (Hinman v. Westinghouse, supra, 2 Cal.3d at

p. 960.) For example, where the employer has instructed an

employee to use his car to recruit other workers and is furnishing

the gas for the trip, the risk of the enterprise surely encompasses

the employee’s travel to and from the remote work site. (Harvey

v. D & L Constr. Co. (1967) 251 Cal.App.2d 48, 51 [special errand

exception].) Similarly, where the employee’s work involves both

office work and field work, it is immaterial whether he is driving

to his office or driving to other locations. (Richards v.

Metropolitan Life Ins. Co. (1941) 19 Cal.2d 236, 243 [automobile

use as a condition of employment].)

One other exception to the “ ‘ “going-and-coming rule” ’ ”

arises where an employee endangers others with a risk inherent

in or created by the enterprise. In such a situation, the risk is

foreseeable and the employee’s conduct is not “so unusual or

startling” that it would seem unfair to include the loss in the

employer’s costs of doing business. (Bussard, supra,105

Cal.App.4th at p. 804; Farmers Ins. Group v. County of Santa

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Clara (1995) 11 Cal.4th 992, 1004.) For example, in Bussard, the

employer’s improper use of pesticides at the work place, which

sickened and rendered an employee unable to drive safely, caused

that employee to rear-end another car on her way home.

(Bussard, at p. 801.) In such an instance, conditions for the

occurrence of the accident had been created within the scope of

the driver’s employment. (Ibid. at pp. 805–806.) By contrast,

“ ‘[i]f the employee’s tort is personal in nature, mere presence at

the place of employment and attendance to occupational duties

prior or subsequent to the offense will not give rise to a cause of

action against the employer … .’ ” (Farmers, at p. 1005.)

The uncontroverted facts presented in this case support the

application of the going and coming rule.7

There is no dispute

that when Rushton collided with Bingener, Rushton was on his

normal morning commute to the Hyperion Treatment Plant.

Rushton’s work did not require him to use his personal car in the

performance of his job, nor was he performing a special errand for

his employer. Rushton rarely left his laboratory and, when he

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Although the Bingeners challenge the trial court’s evidentiary

rulings, we find no abuse of discretion in these rulings. (Sargon

Enterprises, Inc. v. University of Southern California (2012) 55 Cal.4th

747, 773.) A court abuses its discretion if its ruling is “ ‘so irrational or

arbitrary that no reasonable person could agree with it.’ ” (Ibid.) It is

the appellant’s burden to show the trial court abused its discretion.

(Cahill v. San Diego Gas & Electric Co. (2011) 194 Cal.App.4th 939,

957.) And, although a court is required to construe plaintiffs’

admissible evidence liberally, it is not required to allow otherwise

inadmissible evidence to be used in opposition to a motion for summary

judgment. (Sanchez v. Kern Emergency Medical Transportation Corp.

(2017) 8 Cal.App.5th 146, 155–156; see Shiffer v. CBS Corp. (2015) 240

Cal.App.4th 246, 252–253 [an expert’s opinion is only as good as the

facts that it is based on].)

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did, he did not use his personal automobile. Rushton was not

conducting any work for the City on the way to work nor did his

employer require him to do so.

Further, this accident was not caused by anything inherent

in or created by the enterprise. Nothing about Rushton's job

performing tests on water samples made his hitting a pedestrian

during his ordinary commute a foreseeable risk of the City’s

business. Rushton’s job was performed in a laboratory; he never

went out in the field and, like his co-workers, he walked to other

buildings in the plant if he needed to. Although the job

description required a driver’s license, Rushton’s unit did not

have a mandatory driving requirement. Rushton never, in fact,

drove his personal car for work, nor did he run work-related

errands on his way to or from the plant. Occasionally over the

course of his twenty years of service, he rode in a City vehicle to a

meeting, but Rushton had no interest in or involvement in

anything other than his work testing water samples at the

laboratory. The City’s water-testing enterprise did not obtain

anything from Rushton’s commute and he was doing nothing for

the City in the course of his commute on the day of the accident.

(See Newland v. County of Los Angeles (2018) 24 Cal.App.5th

676, 685–686 [employer must have either required or benefited

extraordinarily from the employee’s commute on the day of the

accident].)

Plaintiffs’ contention that the going and coming rule does

not apply and that the accident was a foreseeable consequence of

Rushton’s job-related back injury two months earlier is

unsupported by the factual record. Plaintiffs allege, without a

scintilla of evidence, that the City knew or ought to have known

that Rushton’s back strain and the medications he had been

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prescribed rendered him a dangerous commuter. Rushton’s own

testimony refutes plaintiffs’ contention that he was impaired on

the morning of the accident. He testified to feeling great on the

morning of the accident and denied ever taking any medications

that morning. Rushton stated that his medical conditions—some

of which dated back to his childhood—did not limit or impair his

ability to drive—a conclusion reached also by his treating

physician who cleared him to return to work without limitations

on driving.8

Plaintiffs contend that nevertheless, the City was

obligated to review Rushton’s worker’s compensation file and

reach a decision that Rushton could not return to work because

he could not safely drive a vehicle. That argument ignores the

undisputed fact that it was a physician, and not the City, who

approved Rushton to return to work and did so without limitation

on his driving. Plaintiffs’ attenuated and unsupported set of

assumptions takes the accident at issue here well beyond a

foreseeable event, as is required to hold an employer vicariously

liable. (Tognazzini v. San Luis Coastal Unified School Dist.

(2001) 86 Cal.App.4th 1053, 1059–1060.) Summary judgment for

the City was, therefore, properly granted.

And, Rushton’s treating neurologist admitted that he never

instructed his patient not to drive.

The judgment is affirmed. The City shall recover its costs on appeal.