Filed 2/21/14
CERTIFIED FOR PUBLICATION
COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
SARA MONTAGUE et al.,
D063385
Plaintiffs and Appellants,
v.
(Super. Ct. No. 37-2012-00090137-
CU-PO-CTL)
AMN HEALTHCARE, INC.,
Defendant and Respondent.
APPEAL from a judgment of the Superior Court of San Diego County, Steven
Denton, Judge. Affirmed.
The Law Offices of Samuel Dagan, Samuel Dagan and Lisa Dearden Trepanier for
Plaintiffs and Appellants.
Cole Pedroza, Curtis A. Cole and Cassidy C. Davenport; Susson, Parrett & Odell,
Steven R. Odell and Edward L. Schumann, for Defendants and Respondents.
In this case, a staffing company hired an employee to work as a medical assistant
and then assigned that employee to work at a customer's facility. While at the customer's
facility, the employee poisoned a coworker. The coworker sued the staffing company
alleging theories of vicarious liability and negligence. We conclude the trial court
properly granted summary judgment in favor of the staffing company because the
employee acted outside the course and scope of her employment.
FACTUAL AND PROCEDURAL BACKGROUND
AMN Healthcare, Inc., dba Nursefinders (Nursefinders) is a staffing company that
provides prescreened nurses and medical personnel to hospitals and other facilities.
Nursefinders hired Theresa Drummond as a medical assistant. It later assigned
Drummond to work at a Kaiser facility as a medical assistant. Plaintiff Sara Montague
was also a medical assistant at Kaiser. At some point, Drummond and Montague had a
disagreement at work regarding how rooms were to be stocked. At the end of the
discussion Montague walked away. Montague did not consider the argument serious
enough to report to a supervisor or anyone else. They also had a discussion regarding
misplaced lab slips where Drummond raised her voice. A few weeks after that
discussion, Montague left her water bottle at work. Montague later drank from her water
bottle. Her tongue and throat started to burn and she vomited. Drummond admitted that
she poured carbolic acid found in a Kaiser examination room into Montague's water
bottle.
Montague and her husband sued Drummond and Nursefinders. As to
Nursefinders, she alleged causes of action for negligence, battery, negligence per se and
intentional infliction of emotional distress under a theory of respondeat superior. She
also alleged that Nursefinders negligently hired, retained, supervised and trained
Drummond. Montague's husband alleged a claim for loss of consortium.
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Nursefinders moved for summary judgment or in the alternative, summary
adjudication of all causes of action, arguing that the causes of action based on respondeat
superior liability fail because Drummond (1) was a special employee of Kaiser, or (2)
acted outside the course and scope of her employment. It also asserted that no triable
issues existed on Montague's negligence claim and the lack of a viable cause of action
precluded a derivative loss of consortium claim.
The trial court tentatively granted the motion, finding the claims based on
respondeat superior liability failed because undisputed evidence established that
Drummond was a special employee of Kaiser. It also concluded that Montague did not
establish a triable issue of fact regarding negligent hiring, retention or supervision and
that her claim regarding negligent training failed based on lack of causation. The court
entered a judgment in favor of Nursefinders and Montague timely appealed contending
triable issues of material fact precluded summary judgment.
DISCUSSION
I. Standard of Review
A motion for summary judgment is properly granted when there are no triable
issues of material fact and the moving party is entitled to judgment as a matter of law.
(Code Civ. Proc., § 437c, subd. (c).) We review a grant of summary judgment de novo
and decide independently whether the undisputed facts warrant judgment for the moving
party. (Intel Corp. v. Hamidi (2003) 30 Cal.4th 1342, 1348.) When analyzing the
underlying motion, we apply the same three-step analysis used by the trial court. (Bono
v. Clark (2002) 103 Cal.App.4th 1409, 1431-1432.) We identify the issues framed by the
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pleadings, determine whether the moving party has negated the opponent's claims, and
determine whether the opposition has demonstrated the existence of a triable, material
factual issue. (Id. at p. 1432.)
"We will affirm an order granting summary judgment or summary adjudication if
it is correct on any ground that the parties had an adequate opportunity to address in the
trial court, regardless of the trial court's stated reasons." (Securitas Sec. Services USA,
Inc. v. Superior Court (2011) 197 Cal.App.4th 115, 120.) Accordingly, even when the
trial court does not rule on an argument properly presented in summary judgment
proceedings, we may nonetheless consider it on appeal. (Gordon v. Havasu Palms, Inc.
(2001) 93 Cal.App.4th 244, 255.)
II. Vicarious Liability Causes of Action
" 'Where an employer sends an employee to do work for another person, and both
have the right to exercise certain powers of control over the employee, that employee
may be held to have two employers—his original or "general" employer and a second, the
"special" employer.' " (Kowalski v. Shell Oil Co. (1979) 23 Cal.3d 168, 174-175.) A
general employer is absolved of respondeat superior liability when it has relinquished
total control to the special employer. (Brassinga v. City of Mountain View (1998) 66
Cal.App.4th 195, 216.) During this period of transferred control, the special employer
becomes solely liable under the doctrine of respondeat superior for the employee's job-
related torts. (Wilson v. County of San Diego (2001) 91 Cal.App.4th 974, 984.)
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Here, the trial court found the undisputed evidence established that Nursefinders
was absolved of any respondeat superior liability because Drummond was a special
employee of Kaiser and had no control over the injury producing event. We need not
address this issue because, even assuming Nursefinders retained some control over
Drummond so as to render it jointly and severally liable for Drummond's acts,
Montague's vicarious liability claims fail on the alternative ground that Drummond acted
outside the course and scope of her employment. Although the trial court did not rule on
this argument, Montague addressed the issue in her opposition to the motion. Both
parties also addressed the issue in their briefing on appeal. (Code Civ. Proc., § 437c,
subd. (m)(2).)
Under the doctrine of respondeat superior, "an employer is vicariously liable for
the torts of its employees committed within the scope of the employment." (Lisa M. v.
Henry Mayo Newhall Memorial Hospital (1995) 12 Cal.4th 291, 296 (Lisa M.).) The
plaintiff bears the burden of proving that the employee's tortious act was committed
within the scope of his or her employment. (Ducey v. Argo Sales Co. (1979) 25 Cal.3d
707, 721.) "Ordinarily, the determination whether an employee has acted within the
scope of employment presents a question of fact; it becomes a question of law, however,
when 'the facts are undisputed and no conflicting inferences are possible.' " (Mary M. v.
City of Los Angeles (1991) 54 Cal.3d 202, 213.)
Although an employee's willful, malicious, and even criminal torts may fall within
the scope of employment, "an employer is not strictly liable for all actions of its
employees during working hours." (Farmers Ins. Group v. County of Santa Clara (1995)
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11 Cal.4th 992, 1004 (Farmers).) For the employer to be liable for an intentional tort, the
employee's act must have a "causal nexus to the employee's work." (Lisa M., supra, 12
Cal.4th at p. 297.) Courts have used various terms to describe this causal nexus: the
incident leading to the injury must be an " 'outgrowth' " of the employment; the risk of
tortious injury must be " ' "inherent in the working environment" ' "; the risk must be
" ' "typical" ' " or " ' "broadly incidental" ' " to the employer's business; the tort was " 'a
generally foreseeable consequence' " of the employer's business. (Id. at pp. 298-299.)
" 'One way to determine whether a risk is inherent in, or created by, an enterprise
is to ask whether the actual occurrence was a generally foreseeable consequence of the
activity.' " (Farmers, supra, 11 Cal.4th at pp. 1003-1004, italics omitted.)
" '[F]oreseeability' [in the context of determining scope of employment] merely means
that in the context of the particular enterprise an employee's conduct is not so unusual or
startling that it would seem unfair to include the loss resulting from it among other costs
of the employer's business.' " (Id. at p. 1004, italics omitted.)
These various terms have been condensed into a two-prong disjunctive test.
(Bailey v. Filco, Inc. (1996) 48 Cal.App.4th 1552, 1559, 1561 ["the two-prong test is
substantively similar to the foreseeability-based test"].) The conduct of an employee falls
within the scope of his or her employment if the conduct either: (1) is required by or
incidental to the employee's duties, or (2) it is reasonably foreseeable in light of the
employer's business. (Id. at p. 1559; see CACI No. 3720.)
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Nursefinders presented evidence that it is a staffing agency that Drummond did
not work for; rather, Drummond applied for medical assistant positions through
Nursefinders. Drummond obtained a medical assistant position at Kaiser through
Nursefinders. This evidence satisfied Nursefinders initial burden of showing that
Drummond's acts were not required by or incidental to her employment with
Nursefinders or that her acts were reasonably foreseeable in light of Nursefinders's
business. Accordingly, the burden of production shifted to Montague. (Code Civ. Proc.,
§ 437c, subd. (p)(2).)
We first consider whether Montague presented evidence showing that
Drummond's acts were required by or incidental to her employment with Nursefinders.
In evaluating this factor, occupational duties are broadly defined. (Alma W. v. Oakland
Unified School Dist. (1981) 123 Cal.App.3d 133, 139 (Alma W.) "The fact that an
employee is not engaged in the ultimate object of his employment at the time of his
wrongful act does not preclude attribution of liability to an employer. [Citation . . .
However, that is not to say, that employers are strictly liable for all actions of their
employees during working hours. If an employee substantially deviates from his duties
for personal purposes, the employer is not vicariously liable for the employee's actions."
(Id. at p. 139.)
Montague presented no evidence regarding the scope of Drummond's employment
with either Nursefinders or Kaiser. While Drummond testified she generally knew that
carbolic acid was used for patients with foot issues, it is unknown what job duties
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Drummond had at Kaiser and whether her duties involved the use of carbolic acid. It is
also unknown whether Drummond committed the poisoning during working hours.
We next consider whether Montague presented evidence showing Nursefinders
could have reasonably foreseen that Drummond would poison a coworker at Kaiser.
First, Drummond testified that she "poured" the carbolic acid into Montague's water
bottle. Although Montague argues this evidence supports an inference that Drummond
acted negligently, Drummond's testimony is not subject to differing inferences and
establishes she committed an intentional act. (Evid. Code, § 600, subd. (b) ["An
inference is a deduction of fact that may logically and reasonably be drawn from another
fact or group of facts found or otherwise established in the action."].)
An injury arising out of a work-related dispute has such a causal nexus, while an
injury inflicted out of the employee's personal malice, not engendered by the
employment, does not. (Lisa M., supra, 12 Cal.4th at pp. 297-298.) Montague asserts
summary judgment is not appropriate because the evidence shows the poisoning arose out
of a work-related dispute. The evidence shows that a few weeks or months before the
incident, Drummond and Montague had a disagreement at work regarding how rooms
were to be stocked, but Montague did not consider the dispute to be serious. They also
had a discussion regarding misplaced lab slips where Drummond raised her voice. A few
weeks after that discussion, Drummond poisoned Montague's water bottle. Although
Montague asserts the poisoning took place a day or two after arguing with Drummond
about the misplaced paperwork, the evidence she cited does not support this assertion.
Montague presented no evidence that these past work-related disputes, rather than
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Drummond's personal animosity toward Montague unrelated to Drummond's
employment with Kaiser, motivated her actions. (Compare, Carr v. Wm. C. Crowell Co.
(1946) 28 Cal.2d 652, 657 [the fact employee and coworker victim had never conversed
before the dispute indicated dispute arose out of employment]; Yamaguchi v. Harnsmut
(2003) 106 Cal.App.4th 472, 476, 486 [trial court committed reversible error in ruling, as
a matter of law, that restaurant worker's act of throwing hot oil at police officer there to
break-up work-related dispute was within the scope of his employment for purposes of
respondeat superior liability against restaurant]; Rodgers v. Kemper Constr. Co. (1975)
50 Cal.App.3d 608, 615, 621 [when dispute arose, victims were complete strangers to
assailants who worked at same job site, thus dispute was within the scope of
employment].)
Even assuming the evidence supports an inference that the poisoning arose out of
a work-related dispute that occurred weeks earlier, the dispute concerned Drummond and
Montague's mutual employment with Kaiser, not Nursefinders. Montague's attempt to
establish respondeat superior liability for Nursefinders simply because she and
Drummond worked together at Kaiser is misguided. "The nexus required for respondeat
superior liability—that the tort be engendered by or arise from the work—is to be
distinguished from 'but for' causation. That the employment brought tortfeasor and
victim together in time and place is not enough." (Lisa M., supra, 12 Cal.4th at p. 298,
fn. omitted.) The facts, construed most favorably for Montague, do not support liability
against Nursefinders because Drummond's poisoning of Montague was highly unusual
and startling.
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Finally, the public policy factors underlying the doctrine of respondeat superior do
not support the imposition of vicarious liability to Nursefinders under these facts. These
public policy factors are: "(1) to prevent recurrence of the tortious conduct; (2) to give
greater assurance of compensation for the victim; and (3) to ensure that the victim's
losses will be equitably borne by those who benefit from the enterprise that gave rise to
the injury." (Farmers, supra, 11 Cal.4th at p. 1013.) Here, the potential for civil and
criminal liability provides a deterrent to the type of aberrant conduct that Drummond
committed. (Kephart v. Genuity, Inc. (2006) 136 Cal.App.4th 280, 284-287, 297 [court
deemed employee's act of forcing another car off the road to be aberrant behavior that the
majority of motorists did not engage in, so there was no deterrent effect in imposing
liability on the employer].) Additionally, while invoking vicarious liability under these
facts would provide greater assurance of compensation to victims, Nursefinders derived
no benefit from Drummond's conduct and it would be inequitable to shift the loss to
Nursefinders. (Alma W., supra, 123 Cal.App.3d at pp. 143-144.)
III. Negligence Cause of Action
The trial court concluded that Montague did not establish a triable issue of fact
regarding her claim that Nursefinders negligently hired, retained or supervised
Drummond. Montague does not challenge the ruling on the issues of negligent hiring,
retention or supervision. Accordingly, we focus on Montague's remaining claim for
negligent training.
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Montague alleged that Nursefinders had a duty to train Drummond regarding the
proper handling of work-related disputes and that its negligence in this regard caused her
harm. As a preliminary matter, we will assume without deciding, that Nursefinders had a
duty to train its employees regarding the avoidance of workplace violence. (Phillips v.
TLC Plumbing, Inc. (2009) 172 Cal.App.4th 1133, 1140 [Liability for negligent hiring,
training, and supervision " 'is limited by basic principles of tort law, including
requirements of causation and duty.' "].)
The trial court concluded that Montague's negligence cause of action failed based
on lack of causation. Montague asserts the trial court erred because a jury could conclude
that Drummond's intentional act was caused by the failure of Nursefinders to train her on
avoiding workplace violence and, to the extent a jury could conclude that Drummond
acted negligently, her negligent act was caused by the failure of Nursefinders to train her
on handling hazardous chemicals. We do not address the latter argument as this theory of
liability was not alleged in Montague's complaint. (Powell v. Standard Brands Paint Co.
(1985) 166 Cal.App.3d 357, 365 [pleadings define the issues on motion for summary
judgment].) Moreover, as addressed above, the evidence does not support an inference
that Drummond acted negligently. (Ante, pt. II.)
Drummond and the Nursefinders's branch director signed a document verifying
that Drummond participated in Nursefinders's orientation which explained certain topics
including "Workplace Violence." Nursefinders also admitted it trained Drummond on
Kaiser's policies and procedures regarding "Violence in the Workplace" and
"Management of Threats and Aggressive Behavior." Montague cites to Drummond's
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deposition testimony and her response to an interrogatory to show Drummond did not
receive the specified training. Review of this evidence does not support her contention.
When asked whether Nursefinders "train[ed] her," Drummond responded "no." A
follow-up question then clarified that Drummond had already been trained as a medical
assistant when Nursefinders hired her. Additionally, when asked to identify the persons
employed by Nursefinders who were responsible for training her, Drummond responded
that although the term "training" was vague, she did not receive training from
Nursefinders. This evidence regarding unspecified training does not conflict with
Nursefinders's sworn responses to request for admissions that it trained Drummond on
Kaiser's policies and procedures regarding "Violence in the Workplace" and
"Management of Threats and Aggressive Behavior." At most, Drummond's testimony
and interrogatory response hints at a possible issue that Nursefinders failed to provide the
specified training, however, speculative inferences do not raise a triable issue of fact.
(Joseph E. Di Loreto, Inc. v. O'Neill (1991) 1 Cal.App.4th 149, 161 [inferences offered to
oppose summary judgment must be reasonably deducible from the evidence and not
derived from "speculation, conjecture, imagination, or guesswork"].)
Montague's argument appears to be that because Nursefinders trained Drummond
on avoiding workplace violence and the incident occurred, this evidence supports an
inference that Nursefinders must have breached its duty to train Drummond in avoiding
workplace violence and this breach caused her injuries. We reject this contention as the
suggested inferences are based on speculation and not reasonably deducible from the
evidence. Montague "cannot survive summary judgment simply because it is possible"
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that Nursefinders breached a duty to provide training regarding the avoidance of
workplace violence and that this breach "might have" caused her injury. (Leslie G. v.
Perry & Associates (1996) 43 Cal.App.4th 472, 483, italics deleted.)
For example, a similar argument was rejected in Flores v. Autozone West, Inc.
(2008) 161 Cal.App.4th 373 (Flores). In Flores, a customer attacked by a store employee
claimed that triable issues of fact existed because no one actually made sure that the
employee had read and understood an employee handbook. The court disagreed, stating
"implicit in this claim is the assertion that [the employee's] decision to physically attack
[the customer] might have been caused by his failure to understand that such an act
would contravene [the store's] policies. This does not pass the straight face test. There is
simply no reasonable basis to conclude that [the employee's] act of criminally assaulting
a customer was somehow the result of [the store's] failure to make clear that such conduct
would not be considered an acceptable employee act." (Id. at p. 385, italics added.)
Because the evidence does not allow a reasonable jury to find for Montague by a
preponderance of evidence, Nursefinders is entitled to summary judgment of this claim.
(Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 851.)
III. Loss of Consortium
The loss of consortium claim by Montague's husband is derivative of Montague's
claims. (Davis v. Consolidated Freightways (1994) 29 Cal.App.4th 354, 358, fn. 1.)
Because we conclude that Montague's negligence and vicarious liability claims fail, her
husband's loss of consortium claim also fails. (Ibid.)
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DISPOSITION
The judgment is affirmed. Respondent is to recover its costs on appeal.
McINTYRE, J.
WE CONCUR:
McCONNELL, P. J.
McDONALD, J.
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