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Saks v. Santa Cruz Valley Union High School District #840

Court of Appeals of Arizona, Second Division

December 23, 2013

Kimberly Saks, as the spouse of Brett S. Saks, decedent, individually and on behalf of all statutory claimants pursuant to A.R.S. § 12-611; and Kimberly Saks, executor of the Estate of Brett S. Saks, in her capacity as personal representative, Plaintiffs/Appellants,
v.
Santa Cruz Valley Union High School District #840, Defendant/Appellee.

Not for Publication – Rule 111(c), Rules of the Arizona Supreme Court Ariz. R. Civ. App. P. 28(c).

Appeal from the Superior Court in Pinal County No. CV201003211 The Honorable Bradley M. Soos, Judge Pro Tempore

COUNSEL

Knapp & Roberts, P.C., Scottsdale By David L. Abney Counsel for Plaintiffs/Appellants.

Holm Wright Hyde & Hays PLC, Phoenix By Matthew W. Wright and David K. Pauole Counsel for Defendant/Appellee.

Judge Eckerstrom authored the decision of the Court, in which Presiding Judge Kelly and Judge Espinosa concurred.

MEMORANDUM DECISION

ECKERSTROM, Judge.

¶1 Appellant Kimberly Saks appeals from the trial court's ruling granting summary judgment in favor of appellee Santa Cruz Valley Union High School District #840 (the District). For the following reasons, the judgment of the trial court is affirmed.

Factual and Procedural Background

¶2 In reviewing a grant of summary judgment, we view the facts and the reasonable inferences therefrom in the light most favorable to the non-moving party. Bothell v. Two Point Acres, Inc., 192 Ariz. 313, 2, 965 P.2d 47, 49 (App. 1998). In October 2008, James Shapiro was driving to Florence to attend a teacher training course. On his way, he collided with Brett Saks, a bicyclist, fatally injuring him.

¶3 Brett's widow, Kimberly Saks, filed suit against Shapiro in her individual capacity and as executor of her husband's estate, raising claims for negligence resulting in wrongful death, statutory wrongful death, and statutory survival. Saks later amended her complaint to include Shapiro's employer, the District. She alleged the District was liable under the doctrine of respondeat superior and claimed the District was negligent in its supervision and retention of Shapiro. The District filed a motion for summary judgment, asserting that Shapiro "was not acting within the scope of his employment at the time of the collision." The trial court agreed, granted summary judgment in favor of the District as to all of Saks's claims, and certified the judgment as final pursuant to Rule 54(b), Ariz. R. Civ. P.

¶4Saks now appeals, claiming the court erred in relying on State v. Superior Court (Rousseau), 111 Ariz. 130, 524 P.2d 951 (1974), and finding Shapiro was not acting within the scope of his employment. We have jurisdiction pursuant to A.R.S. § 12-120.21(A)(1).

Discussion

¶5 A trial court should grant summary judgment when there is no genuine dispute of any material fact and the moving party is entitled to judgment as a matter of law. Hourani v. Benson Hosp., 211 Ariz. 427, 13, 122 P.3d 6, 11 (App. 2005). We review a grant of summary judgment de novo. Id.

¶6 The doctrine of respondeat superior holds an employer liable for an employee's torts when "there is a relationship of employer and employee and . . . the tortious act of the employee . . . occurred during the course and scope of his employment." Rousseau, 111 Ariz. at 132, 524 P.2d at 953. "An employee acts within the scope of employment when performing work assigned by the employer or engaging in a course of conduct subject to the employer's control." Restatement (Third) of Agency § 7.07(2) (2006); see Engler v. Gulf Interstate Eng'g, Inc., 230 Ariz. 55, ¶ 13, 280 P.3d 599, 602 (2012) (adopting Restatement as "appropriate test for evaluating whether an employee is acting within the scope of employment"). In the context of vehicular accidents, the "basic test" for determining whether an employee is within the scope of his employment is whether the employer maintained control or a right of control over the employee's conduct and performance of his service at the time of the accident. Rousseau, 111 Ariz. at 132, 524 P.2d at 953. Our supreme court has recently noted that, in evaluating "away-from-work conduct, " the "requisite employer control" is not present when "the employee maintain[s] the right to choose where, when, and how to travel, and by what route." Engler, 230 Ariz. 55, ¶ 12, 280 P.3d at 602.

¶7 Here, the District ordered Shapiro to attend a forty-five- hour course in Structured English Immersion in compliance with the Arizona Department of Education's requirements for teacher certification. This training was available from a wide variety of providers. It was Shapiro, not the District, who chose which course he was going to attend.[1] Although the District required the training, it told Shapiro neither where nor when that training must occur. Nor did it instruct him as to what mode of transportation or route to take. Although the District did reimburse Shapiro for his course fee, the District did not reimburse him for his travel expenses, his time in traveling, or his time spent attending the course. We therefore conclude that, because the District was not exercising control over Shapiro at the time of the accident, it cannot, as a matter of law, be liable for Shapiro's allegedly tortious conduct.

¶8 Saks argues that, even when an employer has no control over the employee's actions, respondeat superior still may apply if the employee's conduct is intended to benefit the employer. This argument does not apply here for two reasons. First, whether conduct is intended to benefit an employer is one factor in determining whether an employer is exercising control over an employee; it is not an independent test. See Engler, 230 Ariz. 55, ¶ 11, 280 P.3d at 602 (noting basic test is control and factors determining control include whether conduct "furthered the employer's purposes").

¶9 Second, our courts have held that an employee traveling on a combined mission for himself and his employer is serving his employer's purpose only if "the business mission [was] of such character or importance that it would have necessitated a trip by someone if this employee had not been able to handle it in combination with his . . . journey." Anderson v. Gobea, 18 Ariz.App. 277, 282, 501 P.2d 453, 458 (1972); accord Faul v. Jelco, Inc., 122 Ariz. 490, 492, 595 P.2d 1035, 1037 (App. 1979). This is known as the "dual purpose" doctrine in Arizona and has been called the "special errand" or "special mission" exception in other jurisdictions. Christopher Vaeth, Annotation, Employer's Liability for Negligence of Employee in Driving His or Her Own Automobile, 27 A.L.R.5th 174, 239 (1995). While it is true that, had Shapiro not received this training, the District eventually would have had to hire another employee, this doctrine previously has been applied in cases in which one employee performed a specific errand that otherwise would have required a trip by another, thus subjecting the employee to employer control. See, e.g., Love v. Liberty Mut. Ins. Co., 158 Ariz. 36, 39-40, 760 P.2d 1085, 1088-89 (App. 1988) (liability supported when off-duty waitress sent to retrieve equipment for band's performance at restaurant); Anderson, 18 Ariz.App. at 281-83, 501 P.2d at 457-59 (liability supported when employee ordered to transport air compressor to work site); see also Blackman v. Great Am. First Sav. Bank, 284 Cal.Rptr. 491, 493 (Ct. App. 1991) (special errand doctrine applies when employee undertook errand "either as part of his regular duties or at a specific order or request of his employer"); Comment, The Special Errand Exception, 6 Stan. L. Rev. 383, 388 (1954) (noting control as justification for special errand exception). If Shapiro had not gone to the training that morning, it would not thereby have been necessary for the District to send another employee to that training in his place. Thus, the dual purpose test is not met. See Faul, 122 Ariz. at 492, 595 P.2d at 1037 ("[D]ual purpose exception applies when . . . employee performs a concurrent service for his employer that would have necessitated a trip by another employee if the commuting employee had not been able to perform it while commuting.").

¶10 Saks also urges this court to apply case law from our workers' compensation jurisprudence. She argues that in Engler our supreme court "recognized that workers' compensation principles may provide guidance in vicarious liability cases." 230 Ariz. 55, ¶ 15, 280 P.3d at 603. But Saks's argument takes this quotation out of context. In Engler, the court acknowledged that "the court of appeals" has looked to workers' compensation case law for guidance in employer liability contexts. Id. However, the high court went on to say, "[W]e disagree that those standards should apply here, " and it explained why workers' compensation case law is inapposite to vicarious liability situations. Id. We therefore decline to look to the law of workers' compensation in deciding this specific vicarious liability issue.

Conclusion

¶11 For the foregoing reasons, the order of the trial court granting summary judgment in favor of the District is affirmed.


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