Though a plaintiff alleged that LA Fitness should have known its employee had a drug problem and had a habit of driving under the influence, so should be liable for the death of her husband, who was struck by the employee’s vehicle shortly after he was sent home early due to suspected intoxication, a California appeals court in an unpublished opinion sustained the demurrer against her claims. There was no legal basis for vicarious (respondeat superior) liability because the employee acted outside the scope of employment, and his mere presence at work when he became intoxicated was not enough to connect the employer’s business to the accident. Nor was the employer liable for negligently hiring or retaining the employee. “Although it may be foreseeable that an individual who abuses drugs will injure someone by driving intoxicated, such an accident is not a foreseeable—or even logical—consequence of hiring a drug addict to perform a job that does not involve driving,” said the court (Pryor v. Fitness International, LLC, January 3, 2019, Rothschild, F., unpublished).
Background. This suit arises from the death of a bicyclist who was hit by a car driven by an LA Fitness employee sent home early. According to an LA Fitness manager, the employee appeared “fit to perform his job duties” when he started his shift five and a half hours before the accident, but, as the day progressed, his attention span shortened, he began slurring his words, his eyes appeared dilated, and his behavior suggested he was intoxicated. The manager concluded he could not perform his duties and sent him home around 4:00 p.m., though his shift was not supposed to end until 8:00 p.m.
There was no indication anyone at LA Fitness asked what the employee would do when he left or whether he would drive. However, the bicyclist’s widow claimed LA Fitness knew or should have known that he had a drug problem, that his driver’s license was suspended but he drove anyway, and that he had a “habit of driving while under the influence of intoxicating substances. On the day in question, he drove his girlfriend’s car and around 4:31 p.m., struck and killed the bicyclist. He is serving a 10-year sentence for gross vehicular manslaughter while intoxicated.
Negligence claims. The plaintiff sought to hold LA Fitness vicariously liable for the employee’s negligence, arguing that he was acting within the scope of employment when he became intoxicated and struck her husband. She also claimed the company itself was negligent in hiring, retaining, and supervising the employee, because it had a duty to investigate his drug use, to warn third parties, and to “safely address his condition” on the day of the accident.
The trial court sustained LA Fitness’ demurrer, finding that the employee was acting outside the scope of his employment and there was no nexus between the accident and LA Fitness’s actions with respect to the employee.
No respondeat superior liability. Affirming, the appeals court first addressed the vicarious liability theory. The plaintiff claimed liability was supported by: the drug use during work hours; the employer’s knowledge that the employee became impaired on the job; temporal proximity to the accident; and the fact that LA Fitness benefitted from sending the impaired employee away. However, the appeals court held that neither these allegations nor anything else in the complaint connected the deadly accident with the nature of LA Fitness’s business or the employee’s job duties. Nor could the car accident be considered an “outgrowth” of his duties.
While the plaintiff argued that the employee’s tortious conduct was reasonably foreseeable as a general matter, she conceded her argument did not rely on any specifics of LA Fitness’s business and general foreseeable didn’t establish the employee was acting in the scope of his employment.
Furthermore, under the “going and coming rule,” an employee is not regarded as acting in the scope of employment on his way to or from work. Though the plaintiff argued that an exception applied, the appeals court disagreed. The “dangerous instrumentality” exception applies where activities within the scope of employment cause an employee to become an instrumentality of danger, and here, the employee’s covertly ingesting drugs at work did not constitute a work-related activity. Nor did the “special errand” exception apply because the employee leaving the facility did not benefit LA Fitness in the manner required for the exception. Finally, the “special risk” exception applied in workers’ comp cases did not apply here.
In sum, there was no legal basis for respondeat superior liability here, mere presence at work when the employee became intoxicated was not enough to make a connection to the accident.
No negligent supervision. Also relying on direct negligence theories, the plaintiff claimed LA Fitness should be liable for failing to assure safe transportation for the employee after he left intoxicated. Affirming on this claim as well, the appeals court found no legally cognizable duty. Foreseeability weighed in favor of imposing liability but overriding public policy considerations under the Rowland v. Christian analysis weighed against imposing a duty on LA Fitness. For one thing, standing in the causal chain, in-between the employee leaving work and the accident, was his decision to drive rather than to seek alternative transportation, among other factors. And the plaintiff’s negligence theory would impose on businesses a “sweeping duty” because it doesn’t require a connection between the employee’s behavior and the employer’s business. In addition, nothing in the complaint suggested that LA Fitness should be held morally culpable and its ability to secure insurance was an improper basis for imposing liability.
While the plaintiff urged that LA Fitness may have been able to do something to make it less likely the employee, acting wholly outside the scope of his employment, might injure someone, this argument imposed a duty on employers far from guarantees of a net public benefit, and the appeals court refused to impose such a duty.
No negligent hiring or retention. The plaintiff was no more successful on her remaining theory. Affirming judgment against the negligent hiring or retention claim, the appeals court explained: “Although it may be foreseeable that an individual who abuses drugs will injure someone by driving intoxicated, such an accident is not a foreseeable—or even logical—consequence of hiring a drug addict to perform a job that does not involve driving.” Nor did the appeals court find any overriding policy considerations that made it appropriate to impose liability here.
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