Teresa Savaikie v. Kaiser Foundation Hospitals

Plaintiffs Teresa, Michael, and Ryan Savaikie appeal from

a judgment in favor of defendant Kaiser Foundation Hospitals

(Kaiser) after the trial court granted Kaiser’s motion for

summary judgment. Appellants sued Kaiser for the acts of its

volunteer Ralph Steger. Steger struck and killed 14-year-old

Wyatt Savaikie as Steger was driving his own vehicle home from

an assisted living facility where he provided dog therapy to a

Kaiser patient. Appellants acknowledge an employer is not liable

for the acts of employees while they are coming to or going from

their place of employment, but appellants contend there are

triable issues of fact as to whether the “required vehicle use”

exception to the coming and going rule applied in this case.

Appellants also contend there are triable issues of fact as to

whether Kaiser received an “incidental benefit” from Steger’s use

of his personal vehicle and whether Steger had specially equipped

his vehicle to transport his therapy dog; they claim both

circumstances are two additional independent exceptions to the

coming and going rule. Finally, appellants contend Steger’s stop

at a credit union on the way home from the therapy session did

not insulate Kaiser from vicarious liability for Steger’s

subsequent accident. We find no triable issues of material fact

and affirm the judgment.

BACKGROUND

On July 16, 2015, Steger drove to an assisted living facility

in his own vehicle and provided volunteer pet therapy to a Kaiser

patient. After completing the therapy session, Steger drove to a

credit union to conduct personal business and then began his

drive home. On the way home, Steger struck and killed Wyatt

Savaikie while the young man was on foot in a crosswalk.

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Wyatt’s parents Teresa and Michael Savaikie filed this

lawsuit alleging multiple causes of action against several

defendants. Wyatt’s brother, Ryan Savaikie, witnessed the

collision and he alleged a claim for negligent infliction of

emotional distress.

Appellants settled with defendants City of Santa Clarita,

County of Los Angeles, and Southern California Edison.

Thereafter, they dismissed the State of California as a defendant.

In April 2017 appellants added respondent Kaiser as a

defendant, ultimately alleging Kaiser was vicariously liable for

Steger’s negligence.

In January 2018, Kaiser filed a motion for summary

judgment on the ground that Steger was not acting within the

scope of his employment at the time of the collision. Kaiser

offered evidence that Steger was driving home from the location

where he volunteered and argued the going and coming rule

applied, that is, an employer was not liable for an employee’s

negligent acts committed during the commute to or from work.

Appellants opposed summary judgment, arguing the

“required vehicle use” exception to the coming and going rule

applied; they also asserted two related exceptions, which they

refer to as the incidental benefit and special mode of

transportation exceptions. They relied in large part on the

deposition testimony of Linda Miranda, Kaiser’s “volunteer and

bereavement director supervisor and coordinator” and Kaiser’s

designee as the person most qualified to testify about Kaiser’s

dog therapy program, Steger’s participation in that program, and

Kaiser’s investigation of the accident. Although Miranda

testified Kaiser did not require Steger to use his own vehicle to

provide pet therapy, appellants contended other portions of her

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testimony, together with Steger’s testimony, create a triable issue

of material fact as to whether the required vehicle exception

applied.

According to Miranda, Kaiser did not provide

transportation for pet therapists or their animals. Pet therapists

could use whatever transportation they wished, including public

transportation or ride sharing. “So it’s not a requirement for

them to, you know, for them to take their own vehicle.” Miranda

did not know whether Steger used his own vehicle to travel to

therapy appointments; she did not have this information for any

of the pet therapists.

Miranda testified that at the time of the accident in July

2015, Kaiser did not provide mileage reimbursement to volunteer

pet therapists. She also testified that if a volunteer used a

personal vehicle or supplied Kaiser with a driver’s license, the

volunteer was annually required to provide proof of vehicle

insurance.

Appellants also relied on Steger’s deposition testimony. In

particular, they relied on this testimony from Steger, who began

volunteering in 2009:

“Q: Did you ever operate Kaiser vehicles to go from one

location to another to provide pet therapy?

“A: No.

“Q: So their arrangement was that you would drive your

own vehicle?

“A: Yes.”

Appellants cited Steger’s testimony about Kaiser’s mileage

reimbursement policy. According to Steger, Kaiser “said they

had it, but I never took it.” Although there is some tension

between Steger’s testimony on this topic and Miranda’s, Steger

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did not claim Miranda ever offered him mileage reimbursement.

Further, Miranda’s testimony was focused on Kaiser’s policy in

July 2015, as she had only worked for Kaiser for about 4 years

and had not explained the program to Steger when he started

volunteering in 2009.

Appellants also relied on Steger’s testimony about Kaiser’s

insurance requirements, although that differed slightly from

Miranda’s explanation of the requirement. Steger stated Kaiser’s

insurance requirement was “a block thing because there’s some

people that will take people to places. So they just put us all in

there and make us all do the same thing.” He clarified that

“instead of saying we need this from you and this from you, they

say, we need this from everyone.” Steger agreed insurance

coverage was checked annually.

Steger also gave testimony about how he transported his

therapy dog. He put the dog all the way in the back of the vehicle

and “hook[ed] her in like a seatbelt back there so she can’t move

around.” There was no barricade between the back area and the

seats but “the restraint that I have her on, she can’t get up

there.” He explained: “She had the harness. There’s the clip in

the back for like a cargo net or something like that. And I have a

little leash that’s maybe 18 inches long, and I hook her to that.”

Finally, appellants argued discovery responses by Kaiser

established indisputably that pet therapists provided their own

dogs and were responsible for getting themselves and their dogs

to the therapy sessions, which occurred at various and changing

locations.

The trial court granted Kaiser’s motion for summary

judgment. The trial court found the going and coming rule

applied, and no evidence supported the application of the

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required vehicle exception or any variation thereof. Plaintiffs

timely appealed. Steger is not a party to this appeal.

DISCUSSION

In granting Kaiser’s motion for summary judgement, the

trial court ruled that Steger, although a volunteer, was to be

treated as a paid employee for purposes of vicarious liability. 1

The court also ruled that to hold Kaiser liable for Steger’s

accident, Steger must have struck Wyatt in the course and scope

of his volunteer work for Kaiser.

Then the trial court found: “The evidence establishes this

is not the case. At the time of the accident, Steger had completed

his volunteer dog therapy. (Separate Statement, Fact No. 2.)

Steger had left the location where he was providing dog therapy

and had no intention of returning that day. (Separate Statement,

Fact No. 3.) Steger went to Lockheed Federal Credit Union to

make a deposit unrelated to his volunteer work. (Separate

Statement, Fact No. 3.) After Steger left the credit union, he was

going home at the time of the accident. (Separate Statement, Fact

No. 4.)

The court summarized the general rule: “Based on the

‘going and coming’ rule, an individual is not considered to be

within the scope of his/her duties when going to or coming from

his/her place of employment/volunteer work. (Ducey v. Argo

Sales Co. (1979) 25 Cal.3d 707, 722 [(Ducey)]; Santa Rosa Junior

College v. WCAB (1985) 40 Cal.3d 345; Wilson v. WCAB (1976)

1 (See Jeffrey E. v. Central Baptist Church (1988)

197 Cal.App.3d 718, 722, fn. 6.) Kaiser does not dispute this

ruling.

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16 Cal.3d 181; and Pierson v. Helmerich & Payne Industrial

Drilling Co. (2016) 4 Cal.App.5th 608 [(Pierson)].)”

The trial court found: “There is no evidence that the

‘required vehicle use” exception to the ‘going and coming’ rule

applies in this case. The exception applies when an employer

requires an employee/volunteer to furnish a vehicle for

transportation on the job. (See Ducey, supra, [25 Cal.3d at p.]

723; Tryer v. Ojai Valley School (1992) 9 Cal.App.4th 1476, 1482.)

The evidence shows that Kaiser Foundation Hospitals did not

require Mr. Steger to drive a vehicle to the therapy site. (See,

Stern Declaration (Opposition), Exh. 1, p. 28, l. 9 through p. 29,

l. 2.) The fact that Mr. Steger chose to use his vehicle to

transport his therapy dog is insufficient to establish he was

required to use his personal vehicle. Based on the evidence, Mr.

Steger was not prohibited from using another means of

transportation (i.e., walking, taxi, Uber, Lyft, family member,

friend). (See, Stern Declaration, Exh. 1, p. 28, ll. 9-15.)

Transporting the therapy dog does not establish that the required

vehicle exception applies. (Ducey, [at p.] 714; Jorge v. Culinary

Institute of America (2016) 3 Cal.App.5th 382, 406 [(Jorge)].) The

facts that Mr. Steger was required to provide proof of insurance

to Kaiser Foundation Hospitals, since he provided them with his

driver’s license, and that Mr. Steger mistakenly believed he could

have received reimbursement for mileage do not establish that

the required vehicle exception applies. ”

The court also stated: “The fact that an employee travels to

different working locations that do not require him/her to travel

between different sites during the work period does not trigger

the required vehicle exception. (See Ducey, supra, [25 Cal.3d at

p.] 723; Jorge, supra, [3 Cal.App.5th at pp.] 397, 401–403, 405;

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Anderson, supra, [14 Cal.App.4th at pp.] 257, 262; Tryer, supra,

[9 Cal.App.4th at pp.] 1479–80.)”

Appellants contend the trial court erred because they did

present evidence creating a triable issue of fact about whether

Steger’s travel fell within the required vehicle exception. They

claim they presented evidence that Steger’s work required the

transport of his dog to “various locations set by” Kaiser and

Steger “necessarily accomplished this work by using his own,

specially-equipped vehicle” and that Kaiser “came to rely on

Defendant Steger’s use of his own vehicle.” Appellants also claim

that Steger testified at his deposition “that was the nature of the

arrangement and that Kaiser offered to reimburse Defendant

Steger for his mileage.”

We review a trial court’s grant of summary judgment de

novo to determine whether there are triable issues of material

fact. (Wiener v. Southcoast Childcare Centers, Inc. (2004)

32 Cal.4th 1138, 1142.) Like the trial court, we strictly construe

the moving papers and liberally construe the opposing papers.

We view the moving papers in the light most favorable to

appellants. All doubts about the propriety of granting the motion

are resolved in favor of denial. (Wilson v. 21st Century Ins. Co.

(2007) 42 Cal.4th 713, 717.)

“The rules of law that define the role of inferences in

creating a triable issue of material fact are contained in

subdivision (c) of Code of Civil Procedure section 437c. When

reviewing a motion, the court shall consider the evidence set forth

in the papers and ‘all inferences reasonably deducible from the

evidence.’ [Citation.] Generally, when conflicting inferences can

be reasonably drawn from the evidence, a triable issue of fact is

deemed to exist.” (Pierson, supra, 4 Cal.App.5th at p. 627.)

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A. There Is No Direct Or Circumstantial Evidence That

Kaiser Required Steger To Use His Own Vehicle To

Volunteer.

“The required-vehicle exception to the going and coming

rule and its variants have been given many labels.” (Piersonˆ

supra, 4 Cal.App.5th at p. 624.) Regardless of the label, the

exception “covers situations where there is an express or implied

employer requirement. ‘If an employer requires an employee to

furnish a vehicle as an express or implied condition of

employment, the employee will be in the scope of his employment

while commuting to and from the place of his employment.’ ” (Id.

at p. 625.) Whether there is an express or implied requirement

“ ‘can be a question of fact for the jury,’ ” but “the question of fact

sometimes can be decided by a court as a matter of law.” (Id. at

p. 626.)

Kaiser representative Miranda testified Kaiser did not

require Steger to use his vehicle. In their reply brief, appellants

contend Steger “testified that he was required to drive his car to

his work. There is no such direct testimony. Appellants are

referring to the following deposition testimony: Question: “So

[Kaiser’s] arrangement was that you would drive your own

vehicle?” Steger: “Yes.”

It is not reasonable to understand Steger’s testimony in the

manner appellants suggest. Common definitions of arrangement

are “a preliminary measure” or “preparations” (Merriam-Webster

Dict. (2020) [as of June 19, 2020], archived at

.) and “a plan for how something

will happen” or “an agreement between two people or groups

about how something happens or will happen.” (Cambridge. Dict.

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(2020) [as of June 19, 2020], archived at

.) Even reading “arrangement”

broadly to mean “agreement,” an agreement between Kaiser and

Steger that Steger would drive his own car would not establish or

suggest that driving a personal vehicle was a requirement of the

job. It does not contradict Kaiser’s testimony that using other

methods of transportation, such as Uber or Lyft, was permissible,

and thus other “arrangements” or agreements were permissible.

Appellants argue, in effect, that even if Steger’s testimony

alone is not sufficient to create a triable issue of material fact,

that testimony, when considered with certain other evidence, is

sufficient to support a reasonable inference that Kaiser required

Steger to use his personal vehicle. We disagree.

Appellants point to Steger’s testimony that Kaiser offered

to reimburse him for mileage. Payment for travel expenses is not

evidence of an implied requirement that an employee use his own

vehicle, or have it available for use, as a condition of employment.

(Jorge, supra, 3 Cal.App.5th at p. 405; Caldwell v. A.R.B., Inc.

(1986) 176 Cal.App.3d 1028, 1042; see Anderson, supra,

14 Cal.App.4th at pp. 262–263.) Further, Steger’s testimony at

most shows Kaiser offered him mileage reimbursement at some

point in the past and he declined. There is nothing in his

testimony to show that he had any knowledge of Kaiser’s policies

in July 2015, whereas Kaiser representative Miranda testified

Kaiser did not offer mileage reimbursement to volunteers in July

2015. The facts in the record do not support the inferences

appellants wanted the trial court to draw.

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Appellants contend a relevant fact is that Kaiser confirmed

every year that Steger possessed liability insurance for his

personal vehicle. Steger believed Kaiser checked such insurance

for all volunteers as a matter of administrative convenience, but

was only concerned about coverage for volunteers who actually

transported patients. Kaiser’s representative testified Kaiser

checked insurance coverage for all volunteers who provided a

driver’s license or were using their own vehicles. The testimony

in the record about Kaiser’s policy on insurance coverage does not

support a reasonable inference that Kaiser required Steger to use

his personal vehicle to provide pet therapy.

In addition, appellants see probative value in Kaiser’s

admission that it was Steger’s responsibility to provide the

therapy dog and transport the dog to the therapy session. They

characterize the dog as necessary work material. Merely

transporting work material does not establish the required

vehicle exception. (Jorge, supra, 3 Cal.App.5th at p. 406; Ducey,

supra, 25 Cal.3d at p. 714.) No doubt when work material is an

animal, certain forms of transportation, such as public buses,

may not be available. There is no evidence in the record,

however, that transporting an animal could only be done by one

form of transportation, specifically the employee’s own vehicle.

Kaiser did not object to Steger using Uber or Lyft, for example.

Thus, Steger’s need to transport work material does not support a

reasonable inference that Kaiser required Steger to use his own

personal vehicle to provide pet therapy.

Appellants also look to the fact that Steger provided pet

therapy at “various” addresses. As we discuss in more detail

below, “the need to show up for work at different sites [does not

render] the employee’s commute extraordinary—or for the benefit

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of the employer.” (Jorge, supra, 3 Cal.App.5th at p. 405 [“the fact

the employee reported to work at different, and constantly

changing, remote locations did not make his regular commute to

and from work part of his job”].)

The evidence viewed as a whole is no more compelling than

when considered item by item. It shows Kaiser permitted pet

therapy volunteers to select the means of transportation for

themselves and their animals, assigned the therapists to provide

therapy at a variety of locations, checked the liability insurance

of all Kaiser volunteers who either provided a driver’s license or

used their own vehicles, had at one time offered to reimburse

Steger for his mileage, and had an “arrangement” with Steger

that he would use his own vehicle. These facts do not support a

reasonable inference that Kaiser expressly or impliedly required

Steger to use his own vehicle as a condition of his volunteer work.

B. Steger’s Use of His Personal Vehicle Did Not Provide An

Incidental Benefit To Kaiser.

Appellants suggest there is a variation of the vehicle use

exception which focuses on whether the employer derives an

incidental benefit from the employee’s use of the vehicle.2 We

question whether this is an independent basis for the exception

(see Pierson, supra, 4 Cal.App.5th at p. 625 [phrase “incidental

benefit exception” is used as the equivalent of the requiredvehicle exception]), rather than merely a factor to be considered

2 Kaiser argues appellants did not raise the incidental

benefit argument in the trial court. Appellants correctly point

out they referred to the concept of incidental benefit in their

written opposition to summary judgment. This sufficiently

preserves the issue for appeal.

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in deciding whether an implied vehicle use requirement exists.

In all four cases cited by appellants which discuss “incidental

benefit,” the courts found an express or implied requirement that

the employee provide a vehicle as a condition of employment.

In Lobo v. Tamco (2010) 182 Cal.App.4th 297 (Lobo), the

court acknowledged a “ ‘well-known exception to the going-andcoming rule arises where the use of the car gives some incidental

benefit to the employer.’ ” (Id. at. p. 301.) The court explained:

“The exception can apply if the use of a personally owned vehicle

is either an express or implied condition of employment (Hinojosa

v. Workmen’s Comp. Appeals Bd. (1972) 8 Cal.3d 150, 152

[104 Cal.Rptr. 456, 501 P.2d 1176] [(Hinojosa)].)” (Lobo, at

p. 301.) That was the situation before the court in Lobo. The

employee’s supervisor “testified that [the employee’s] physical

presence was essential when customers had quality complaints

because he was the sole employee with the expertise to determine

whether products were defective. [The supervisor] testified that

[the employee] is required to use his personal car to discharge

that duty.” (Id. at p. 302, italics added.)3

Use of a personal vehicle was also required as a condition of

employment in Huntsinger v. Glass Containers Corp. (1972)

22 Cal.App.3d 803. In that case, the employee “had duties both

in the office and in the field; he was required to use his vehicle for

the field work [although] there was no requirement that he report

3 As the court in Lobo indicates, the Hinojosa Court found:

“The condition implicit in the employment itself dictated the use

of car transport . . . . To get from one noncontiguous field to

another within the work day required the use of automobile

transport.” (Hinojosa, supra, 8 Cal.3d at p. 161.) The employer

did not provide transportation. (Ibid.)

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to the office before engaging in his field duties.” (Id. at p. 809,

italics added.) The Huntsinger court explained the exception to

the coming and going rule applies “when a business enterprise

requires an employee to drive to and from its office in order to

have his vehicle available for company business during the day.”

(Id. at p. 810, italics added.) Similarly, in State Farm Mut. Auto.

Ins. Co. v. Haight (1988) 205 Cal.App.3d 223, it was “an express

condition of his employment that [the employee] use the vehicle

in attending to his duties.” (Id. at p. 242.) The employee “had

duties both in the office and in the field. He was required to use

his vehicle to travel to work sites. He delivered materials in his

vehicle to the work site. He was required to travel throughout

the county and sometimes outside the county.” (Ibid.)

As we have just discussed, the evidence presented by

appellants does not support a reasonable inference that Steger

was required to drive his own vehicle to therapy sessions. Thus,

appellants have not shown a triable issue of material fact as to

whether the implied benefit exception as applied in Lobo,

Hinojosa, Huntsinger and State Farm pertains to this case.

We note the court in Lobo stated in dicta that an incidental

benefit exception could also apply “if the employee has agreed,

expressly or implicitly, to make the vehicle available as an

accommodation to the employer and the employer has ‘reasonably

come to rely upon its use and [to] expect the employee to make

the vehicle available on a regular basis while still not requiring it

as a condition of employment.’ ” (Lobo, supra, 182 Cal.App.4th at

p. 301.)

Here, there is no evidence Kaiser encouraged or relied on

Steger’s use of his own car in connection with his volunteer work.

Kaiser’s representative testified volunteers were free to choose

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their own method of transportation. There is no evidence Kaiser

derived a different or additional benefit from Steger’s use of his

car to commute to the therapy sessions than it would have

received had he used any other form of transportation. We find

no triable issue of material fact as to whether this variation of

the implied benefit exception applies.

In Lobo, Hinojosa, Huntsinger and State Farm, the courts

describe the incidental benefit to the employer as the employee’s

use of the vehicle during working hours to carry out the

employer’s business. This is very different from the employee’s

use of a vehicle to commute from the employee’s home to his or

her work site. In the present case, Steger was not required to

drive his vehicle to Kaiser to have it available during the work

day. There is no evidence he went from Kaiser to a therapy

session, from a therapy session to Kaiser, or from therapy session

to therapy session. At most the record suggests he went to Kaiser

for an occasional meeting of volunteers and volunteered at Kaiser

for, at most, a few hours a week.

Steger was required to travel to different sites to provide

therapy sessions and the locations changed because the therapy

was not long-term. “[T]he need to show up for work at different

sites [does not render] the employee’s commute extraordinary—or

for the benefit of the employer. In Anderson, a lineman for

Pacific Gas and Electric Company (PG&E) worked out of various

locations. He would report to work at a company point of

assembly, traveling there in his own vehicle and then traveling

on to various job sites in a company vehicle. . . . Affirming

summary judgment for PG&E based on the going and coming

rule, the Court of Appeal concluded that the fact the employee

reported to work at different, and constantly changing, remote

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locations did not make his regular commute to and from work

part of his job.” (Jorge, supra, 3 Cal.App.5th at p. 405.)

C. Steger Did Not Use A Special Mode of Transportation.

Appellants suggest a “special mode of transportation”

exception to the coming and going rule applies here because

Steger specially equipped his vehicle to transport his dog. (See

Wilson v. Workers’ Comp. Appeals Bd. (1976) 16 Cal.3d 181, 185

[Transporting the materials “may have been essential to

applicant’s employment, but unless such materials require a

special . . . mode of transportation . . . their mere transport does

not warrant exception from the going and coming rule.”].)

Assuming for the sake of argument that using a specially

equipped vehicle is alone sufficient to create an exception to the

coming and going rule, there is no evidence Steger had such a

vehicle.

Appellants claim Steger used “a particular harness and

clips” and the vehicle was “specially-equipped with a harness

system.” Steger’s testimony is the only evidence of how his dog

was transported and he does not describe modification to or

installation of special equipment to transport his dog. Steger

described the clip as “for like a cargo net or something like that”

which indicates the clip was an existing part of the vehicle, not a

modification Steger made to it. As for the harness, Steger

testified simply, “She has the harness.” This in no way suggests

the harness was permanently installed in or attached to the car

or in any way modified the car. Steger stated he had “a little

leash that’s maybe 18 inches long, and I hook her to that.” This

further demonstrates there were no modifications to Steger’s

vehicle: Steger used a lead to hook his dog’s harness to a clip in

the vehicle.

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Further, appellants have not provided evidence that a

specially outfitted vehicle was necessary to transport Steger’s

therapy dog or that Kaiser required Steger to use a specially

outfitted vehicle.

D. Personal Travel

If the going and coming rule does not apply to Steger’s

drive, Kaiser contends Steger’s stop at the credit union was not in

the course and scope of his volunteering and so Kaiser was not

vicariously liable for the subsequent collision. Because we find

the coming and going rule applies to Steger’s drive, we do not

consider this claim.

The judgment is affirmed. Respondent Kaiser Foundation Hospitals is awarded costs on appeal.