Cearlock v. Lambertson CA1/5

Filed 8/5/13 Cearlock v. Lambertson CA1/5 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION FIVE

BRUCE CEARLOCK, Plaintiff and Appellant, A136742 v. PETER LAMBERTSON et al., (San Francisco County Super. Ct. No. CGC-10-500751) Defendants and Respondents.

When an employee injures a bystander while fleeing the police, is the employer liable for those injuries under the doctrine of respondeat superior? The answer in this case is no, because assuming an employment relationship can be established, the flight from the police was not an activity within the course and scope of that employment. We also reject a claim that assisting another in evading the police amounts to an ultrahazardous activity giving rise to strict liability. We affirm the trial court‘s order granting nonsuit on claims by plaintiff and appellant Bruce Cearlock against defendants and respondents 1054 Kearny, LLC and Peter Lambertson. I. FACTS AND PROCEDURAL HISTORY Police were called to the Heaven Mini Theater (Theater), an adult entertainment business in San Francisco, to investigate an altercation between some patrons and the Theater‘s doorman. One officer went inside and spoke to the manager, Michael Canavan, who claimed to be the only male present. The officer then saw a second man, later identified as Richard Lund, close the door to a room. Lund jumped out the second storey

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window of that room and landed on plaintiff, who was standing on the sidewalk below. Lund ran from the scene and was arrested a few blocks away. Plaintiff filed this personal injury action against Lund, also naming as defendants 1054 Kearny LLC, the limited liability company that operated the Theater, and Lambertson, a member of the LLC (collectively, ―defendants‖). The first amended complaint alleged Lund was an employee of the Theater, and sought relief against defendants on theories of negligent hiring, negligent supervision and respondeat superior. Lund did not appear in the action. The case was called for jury trial. Plaintiff‘s counsel filed a trial brief indicating relief would be sought on two theories: (1) Defendants were liable for Lund‘s negligent and intentional conduct under the doctrine of respondeat superior; and (2) Defendants were strictly liable for plaintiff‘s injuries, because the Theater manager had assisted Lund in resisting arrest and in so doing, engaged in an ultrahazardous activity.1 Defendants filed a written motion for nonsuit, based on the lack of evidence that Lund was an employee of the Theater‘s or was acting in the course and scope of such employment when he fled from the police and injured plaintiff. The parties agreed plaintiff‘s counsel would present an opening statement before a jury was empanelled and the court would rule on the nonsuit motion based on that opening statement. Plaintiff‘s counsel gave an opening statement setting forth the following facts: Plaintiff was standing on the sidewalk near a bar his wife owned while she conducted business inside; he was slammed to the sidewalk when a man (Lund) jumped out the window of the Theater and landed on him; police had gone to the Theater that evening in response to an incident involving the doorman in which some customers were sprayed with pepper spray; the Theater employed a doorman to attract and deal with customers; an officer went inside the Theater looking for the doorman and was told by the manager there were no other males on the premises; the manager was on the phone with the Theater‘s lawyer at the time and told the officer he could not look through the rooms