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Legal Report December 2009


VICARIOUS LIABILITY. A California court has ruled that an employer is responsible for the death of a pedestrian killed by an employee who was returning from a conference. The conference, determined the court, constituted a “special errand” under state law making the employer liable for the action of the employee who was sent on that errand.

Marc Brandon was employed by Warner Bros. Entertainment Inc. as vice president of anti-piracy Internet operations. The company did not provide Brandon with a car nor did it reimburse him for mileage when he drove on company business.

In August 2006, Brandon attended a three-day business conference. Warner paid for Brandon’s airfare, hotel, and parking. Brandon left the conference early, flew home, and retrieved his car from airport parking. He drove home along his normal route until he was involved in a collision with another car. In the accident, one or both cars hit three pedestrians, one of whom died. Chuenchomporn Jeewarat was one of the pedestrians injured in the accident.

Jeewarat, along with the family of the deceased pedestrian, filed a personal injury and wrongful death lawsuit against Brandon and the driver of the other car. Warner was named as a defendant in the case.

Warner requested summary judgment—a hearing based on the facts of a case without a trial—on the grounds that Brandon was commuting from work to home when the accident occurred. This is a California legal doctrine known as the “coming and going” rule. The company also argued that Brandon was not acting within the scope of his employment. Therefore, argued Warner, it could not be held vicariously liable for Brandon’s actions.

The plaintiffs argued that Warner was liable under California law because of the “special errand” exception. Under this exception, a company can be held responsible for harm caused by an employee’s actions if the company sent that employee on a specific assignment that was beneficial to the employer, during which the incident occurred.

The Superior Court of Los Angeles County granted the summary judgment. The plaintiffs appealed the decision.

The California Court of Appeal disagreed, reversing the summary judgment and referring the matter to trial. The court found that Brandon’s business conference constituted a special errand. Attendance at the conference, ruled the court, was funded by Warner, and the company could reasonably expect to benefit from Brandon’s attendance.

The court also said that the fact that Brandon was driving along his regular route from his office to his home was irrelevant in this case. The special errand continues for the entirety of the trip, ruled the court. In the written opinion of the case, the court noted: “It would be nonsensical to base the employer’s liability on whether the employee coincidentally chose a route that passed the work place.”(Jeewarat v. Warner Bros. Entertainment, California Court of Appeal, No. B212323, 2009.)

NEGLIGENT HIRING. A California appeals court has ruled that a fire department is not responsible for the sexual assault of a woman by firefighters aboard a fire truck. The city is not liable, in part, because the firefighters did not use their authority to lure the woman aboard the truck, according to the court.

A 24-year-old woman was working as a photographer at a costume ball. She met several firefighters, including the captain, who had driven a fire truck to the event. The woman took photos of the firefighters, many of whom had been drinking and some of whom were on duty.

One of the firefighters asked the woman if she wanted to take photos aboard the fire truck. The woman went onto the truck and another firefighter followed. Once alone with the woman, the two firefighters blocked her exit and assaulted her. When noise from outside the truck distracted the two men, the woman struggled free and escaped.

The woman sued the men for sexual assault and battery. She also sued the City of Sacramento for negligent hiring and supervision, arguing that the employees took advantage of their status as firefighters and abused their authority. She also alleged that the captain knew about the actions of his subordinates and that such activities were commonplace. Thus, the woman contended, the city knew or should have known, that an assault was likely.

The city requested summary judgment, arguing that it was not liable for an assault that took place during a social event and that the firefighters’ actions were outside the scope of their employment. The city submitted evidence that it had conducted criminal background checks on the accused firefighters before they were hired. The men had no criminal record and had not been accused of sexual misconduct during their employment with the city.

The court granted the summary judgment, ruling that the plaintiff could not demonstrate that the city had been negligent in hiring or supervision and that the sexual assault was not within the scope of the firefighters’ employment.

In appealing the decision, the plaintiff cited another case (Mary M. v. City of Los Angeles, California Court of Appeal, 1991) where a police department was found liable after an officer sexually assaulted a woman he was detaining. The California Court of Appeal upheld the lower court’s ruling, finding that the Mary M. case did not apply to this situation because the firefighter had no coercive power over the plaintiff.

In the written opinion of the case, the court noted the relationship between the firefighters and the plaintiff had nothing to do with the firefighters’ jobs. “They did not purport to detain her for any firefighting investigation or even purport to be engaged in any duty of a firefighter; they simply invited her to take photographs of them in the fire truck. Their alleged nonconsensual sex assault was motivated for strictly personal reasons not related to their duties and performance as firefighters.” (M.P. v. City of Sacramento, California Court of Appeal, No. C057324, 2009.)


DATA SECURITY. Two government agencies have issued regulations governing when healthcare providers must notify customers of data breaches.

The Department of Health and Human Services (HHS) has issued an interim final rule requiring that healthcare providers and other entities covered under the Health Insurance Portability and Accountability Act (HIPAA) promptly notify individuals whose information is disclosed in a data breach when more than 500 people are affected. The media and HHS must also be notified.

The Federal Trade Commission (FTC) has issued a final regulation that serves as a companion to the HHS interim final rule. The FTC rule applies the data breach notification requirements to vendors of personal health records not covered by HIPAA.


FOOD SAFETY. A bill (H.R. 2749) that would give the Food and Drug Administration (FDA) greater regulatory powers over the U.S. food supply has been approved by the House of Representatives. The bill is now pending in the Senate Health, Education, Labor, and Pensions Committee.

Under the bill, all facilities that process, hold, or manufacture food would be required to pay an annual fee of $500 to the FDA. That money would be used to fund inspections, testing, standards development, risk assessments, and regulatory-compliance inspections. Companies that transport or package food would be required to maintain a registry detailing the origin of food product, and they would have to have a system for tracking it throughout the distribution chain.

H.R. 2749 would authorize the FDA to demand emergency recalls of tainted foods, quarantine foods to a certain geographic location, and seize food items that might pose a danger to public health.

The bill also includes whistleblower protections for those who provide information to the government about conduct constituting a violation of the act.

CRIME. A bill (H.R. 1727) introduced by Rep. Mary Bono (R-CA) that would require that local law enforcement collect information on convicted arsonists and bombers has been approved by the House of Representatives. It is now pending in the Senate Judiciary Committee.

Under the bill, a convicted arsonist or bomber would have to register in each jurisdiction in which he or she lives, is employed, or is a student. The registry, which would be similar to that currently collected on sex offenders, would be available on the Internet. Grants would be established to help localities mitigate the costs of setting up the registry.

BIOTERRORISM. A bill (S. 1649) introduced by Sen. Joseph Lieberman (I-CT) would seek to prevent terrorist attacks in part by strengthening security at laboratories that handle dangerous pathogens.

The bill would require that the Department of Homeland Security (DHS) designate which pathogens have the potential to be used most successfully in a biological attack. DHS would then be required to establish new security standards for laboratories that handle these types of pathogens. The security standards would include risk assessments, employee screening, and training.

The legislation has four cosponsors and has been referred to the Senate Homeland Security and Governmental Affairs Committee.



BACKGROUND SCREENING. The California legislature has passed a bill (A.B. 943) that would prohibit employers from obtaining credit reports on most prospective employees. Employers would be allowed to conduct credit checks on candidates for certain positions, such as those jobs in which employees would have access to large amounts of cash or other valuables or where the employees would be privy to confidential financial information. Governor Arnold Schwarzenegger has not announced whether he will sign the bill into law.

North Carolina

SCHOOL SECURITY. A new North Carolina law (formerly A.B. 1327) would allow law enforcement agencies to communicate intelligence about criminal activity to school systems if the activity presents imminent danger to the life of a student or employee of the school.

This column should not be construed as legal or legislative advice.