Staffing Agency Not Liable for Employee Who Poisoned Co-Worker

Yes, you read that right.

Nursefinders is a placement company.  It provides nurses and other employees to hospitals and other health care facilities.  Nursefinders assigned Theresa Drummond to work at a Kaiser facility as a medical assistant.  Drummond had a few work related disagreements with another medical assistant at Kaiser, whose name is Montague.  Montague did not consider these squabbles to be important.  

Drummond, though, apparently took the disputes more seriously.*  Because one day, when Montague left a water bottle lying around, Drummond spiked it with carbolic acid, a rather dangerous substance to drink with water.  Montague became quite ill.

* Perhaps Drummond's fictional ancestors were Capulets.  

Montague and her husband sued Drummond and Nursefinders for intentional infliction of emotional distress.  But the trial court granted summary judgment to Nursefinders, finding that Drummond was Kaiser's special employee, and that Drummond's actions were beyond the course and scope of her employment. Therefore, Nursefinders could not be held vicariously liable for Montague's injuries (or her husband's loss of consortium).  The court also dismissed Montague's claim for negligent retention, supervision and hiring, holding there was a lack of causation between Nursefinder's hiring and Drummond's decision to spike Montague's water.

With respect to the IIED / vicarious liability claim, the court rejected Nursefinders' liability for two reasons.  First, the court of appeal held that there was no evidence the poisoning arose out of a work-related dispute, as opposed to personal animosity that Drummond developed for Montague.  Second, the Court held that Nursefinders, a staffing placement agency, could not be liable for an incident between two employees who were working at Kaiser. 

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.

The Court also rejected the negligent training claim.  The plaintiff argued that Nursefinders had a duty to train Drummond not to handle workplace disputes by poisoning her co-worker?  Really?  

Well, the Court did not reject that argument. Rather it simply assumed, without deciding, that there is such a duty:

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.' "].)

What about suing Drummond's kindergarten, parents, college, etc.?  "It's nice to share."  "Wash your hands." "Don't poison people you don't agree with."

Anyway, having assumed such a duty exists, without deciding, the court held that Montague did not establish that Nursefinders failed to conduct workplace violence training:

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 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.

After rejecting Montague's argument that Drummond was not trained, she tried a different argument, which the Court also rejected.

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"

So, the takeaway is that employers should conduct workplace violence training to avoid the argument that lack of training could result in an employee's not knowing it's wrong to poison a co-worker's water.   Good news for management trainers like us.

This case is Montague v. AMN Healthcare and the opinion is here. 

Court of Appeal: No Employer Liability for Employee's Car Accident in Company Truck

We posted about the Court of Appeal's previous opinion in Moradi v. Marsh here.  That case caused quite a stir, when it held that an employer could be vicariously liable for an employee's car accident when she took a detour for yoga and frozen yogurt during her commute home.  The premise was that the employer required the employee to use her personal vehicle for work. Therefore, the  "going and coming" rule exonerating employers did not apply.  The employer was held vicariously liable for accidents occurring during foreseeable detours from the commute as well as the commute itself.

Now, just a few days later, a different court decided that an employer was NOT liable for an employee's accident when he was using a company-owned vehicle.   Why? Because he took a long detour away from work, over 100 miles.  Here is the Court's analysis.

The undisputed facts presented by Halliburton’s motion for summary judgment demonstrated that Martinez’s purpose in traveling to and from Bakersfield on September 13, 2009, was entirely personal. He finished his shift and drove the company truck 140 miles to Bakersfield; he intended to meet his wife at a car dealership and sign the papers to purchase a vehicle for her. Martinez was not performing any services or running any errands for Halliburton. His supervisor was unaware of the trip until after the accident. The trip was not made in the furtherance of any business activity of the employer. The
risk of a traffic accident during this personal trip was not a risk inherent in, or “‘“typical of or broadly incidental to,”’” Halliburton’s enterprise. (Bailey, supra, 48 Cal.App.4th at pp. 1558-1559.)

The Court here read Moradi before issuing the opinion, but held that the plaintiff's trip for yogurt and yoga was way more closely related to her commute than the plaintiff in the Haliburton case.

The plaintiffs in this opinion were the injured persons who sued Martinez, Halliburton's employee. Halliburton argued that it was not liable for Martinez's accident because he was acting outside the course and scope of his employment by driving the company owned truck on a personal errand taking him miles away from his home and work. 

The Court rejected the plaintiff's argument that the 100 mile detour was part of his commute or that it was foreseeable:

The Plaintiffs argue Martinez was returning to work at the time of the accident, so the trip, or at least the return from Bakersfield, was part of Martinez’s commute back to work. We do not believe the purpose or destination of the return leg of the journey can be separated from the purpose of the trip as a whole in this manner. Under plaintiffs’ theory, the return leg of any personal trip in the company vehicle, regardless of the length of time spent, the distance traveled, and the complete lack of connection between the trip and the enterprise of the employer or the work of the employee, would give rise to respondeat superior liability, as long as the employee’s ultimate destination on return was the workplace. We reject such an expansion of the incidental benefit exception to the going and coming rule.

The purpose of Martinez’s trip as a whole was entirely personal. The trip to Bakersfield was such a complete and material departure from his employment duties that it could not reasonably be considered to be an activity in pursuit of the employer’s business or a minor deviation from the strict course of the employee’s duties. It was such a marked turning aside from the employer’s business as to be inconsistent with its pursuit: driving to a location 140 miles from his assigned worksite, a trip that would take more than six hours to complete, without asking his employer’s permission or informing his supervisor that he would be gone, when, according to plaintiffs, Martinez was on call 24 hours, seven days a week, and might be called at any time to proceed to a new location. This activity would be entirely inconsistent with serving the employer’s purposes. Consequently, the trip to Bakersfield was, as a matter of law, outside the scope of Martinez’s employment.

Plaintiffs attempt to characterize the trip to Bakersfield as part of Martinez’s commute between the oil rig in Seal Beach and his home in Caliente. But the evidence presented indicated Martinez did not go home, because it was too far out of the way. Martinez met his wife and daughter at a car dealership in Bakersfield, 45 to 50 miles from his home, in order to sign the documents necessary to purchase a vehicle for his wife. The undisputed evidence does not support a contention that Martinez was
commuting between his home in Caliente and the oil rig at the time of the accident.

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So, Moradi is not going to expand liability as far as some imagine, apparently.  

This case is Halliburton Energy Services, Inc. v. Department of Transportation and the opinion is here.

Court of Appeal Imposes Franchisor Liability for Franchisee Harassment Claim

A Domino's franchisee's employee claimed sexual harassment against her supervisor and her employer, the franchisee (Sui Juris).  However, she also sued franchisor Domino's Pizza.  Normally, only the "employer" can be held liable for FEHA violations.  But the victim, Patterson, claimed that Domino's was also her employer because of its control over franchisee Sui Juris. The trial court disagreed, but the Court of Appeal reversed.

The appellate court decided there at least was a triable issue of fact regarding whether the franchisor exercised sufficient control over Sui Juris' employment practices to make it an "employer."  The court did not apply "single employer" or "joint" employer standards that normally apply to these analyses.  Nor did the Court analyze franchisor liability under FEHA's text.  Rather, the Court of Appeal applied an independent contractor-type analysis applying to torts generally:

Whether a franchisor is vicariously liable for injuries to a franchisee's employee depends on the nature of the franchise relationship.  . . . ."The general rule is where a franchise agreement gives the franchisor the right to complete or substantial control over the franchisee, an agency relationship exists." . . . "'[I]t is the right to control the means and manner in which the result is achieved that is significant in determining whether a principal-agency relationship exists.'" (Ibid.) Consequently, a franchisee may be found to be an agent of the franchisor even where the franchise agreement states it is an independent contractor.  .... If the franchisor has substantial control over the local operations of the franchisee, it may potentially face liability for the actions of the franchisee's employees. 

"[T]he franchisor's interest in the reputation of its entire system allows it to exercise certain controls over the enterprise without running the risk of transforming its independent contractor franchisee into an agent."  ... Consequently, it may control its trademarks, products and the quality of its services. But the franchisor may be subject to vicarious liability where it assumes substantial control over the franchisee's local operation, its management-employee relations or employee discipline. 

Applying this rule, the Court decided there should be a trial on whether Domino's was sufficiently controlling of Sui Juris to the considered an "employer" and liable for the harassment.

Significantly, Domino's then argued it could not be liable because it had no advance knowledge there was sexual harassment at that franchise.  But the Court of Appeal ruled that the franchisor could be held strictly liable for the harassment of the franchisee's supervisor. 

Anyway, this decision opens up a significant avenue for franchisor liability when it exercises tight control over a franchisee's operations. 

It will be interesting to see if the California Supreme Court takes this one up or if Domino's seeks rehearing. The standard for liability under FEHA is usually analyzed under whether the corporate entity is an "employer."  At the same time, FEHA does impose liability on "agents" of the employer.   

The case is Patterson v. Domino's Pizza, LLC and the opinion is here.