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The skillful employer of men

By Leisa Boley Hellwarth, a dairy farmer and attorney near Celina

An interesting case arose in California. And I hate to discuss California cases because they occur in California, which is sometimes more like the Twilight Zone than the rest of the US. Moreno v. Visser Ranch, Inc., however, raises some important issues for any farm that has employees.

The trouble all began when Passenger Moreno was heading back to work at 11:45 pm in the passenger seat of a pickup truck, driven by his father, when their vehicle was involved in an accident. Following the accident, the son filed a complaint against his father based on the premise that his father was acting within the scope of his employment at the time of the accident because he was driving a company vehicle. The son claimed his father’s employers were vicariously liable under the respondeat superior doctrine, that an employer is responsible for acts of their employees.

The employers prevailed at the trial court, winning their motion for summary judgment. The trial court reasoned that the employee was driving home late at night from a family gathering, a “purely personal pursuit” and was therefore not acting within the scope of his employment at the time of the accident. This was an expected outcome.

Passenger Moreno appealed, and this is where it gets interesting. The appellate court overruled, holding that although the driver was engaged in personal business, it was not obvious whether he was in engaged in “purely” personal business. In reaching this conclusion, the court considered the following critical factors: the driver was employed by Visser Ranch, which had multiple farms, ranches and a dairy. The employee’s scheduled office hours were 6:00 a.m. to 4:30 p.m., 6 days a week. The employer provided employee with a cell phone and a pickup truck. The employee was required to drive the company-owned vehicle, which contained tools and spare parts. The employer required the employee to be on call 24/7 for repairs and maintenance of equipment. The employee was expected to address maintenance issues immediately. The employee’s duties sometimes included transportation of workers to various employer properties for work. The employee was the lone exception to the employer’s policy that company vehicles were to be used for business purposes only.

The appellate court applied the Halliburton test. Under Halliburton, an employee’s conduct is within the scope of their employment if (1) the act performed was required by the employer or (2) incident to the employee’s duties. If neither is met, the conduct is still within the scope of employment if the employee’s misconduct could be reasonable foreseen by the employer. Here, foreseeability refers to employee conduct that “is no so unusual or startling that it would seem unfair to include the loss resulting from it among the costs of the employer’s business.”

Since there was evidence the employee’s use of the vehicle at the time of the incident served as a benefit for both himself and his employer, the court concluded there was a factual question for a jury. The case was remanded back to the trial court so that a jury could determine if the employee’s use of the vehicle during non-business hours was a benefit to the employer.

The best answer to a scenario like this is a really good insurance policy purchased by the employer that covers situations like the ones just reviewed. That means that the dispute over who pays and who is liable will be litigated by the insurance carrier.

“The skillful employer of men will employ the wise man, the brave man, the covetous man, and the stupid man,” according to Sun Tzu, the Chinese general and philosopher. The skillful employer of men will purchase good liability insurance coverage in the event the wise man, the brave man, the covetous man or the stupid man do something foreseeable that causes the employer liability.

 

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