Sherar v. B & E CONVALESCENT CENTER

Opinion

COMPTON, J.

Eileen Wampler was a nurse’s aid employed by B & E Convalescent Center. At approximately 6:50 in the morning on August 16, 1972, she was backing out of her driveway preparatory to driving to her place of employment. Plaintiffs Warren and Kevin Sherar who were riding on a motorcycle, collided with Eileen Wampler’s automobile and suffered injury.

Plaintiffs commenced an action against Eileen Wampler and her employer, B & E Convalescent Center (employer). Employer moved for

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summary judgment and upon documents which were properly before the court the motion was granted on the grounds that at the time of the accident Eileen Wampler was not in the course and scope of her employment, leaving no triable issue of fact as to the liability of the employer.

The evidence presented no factual dispute. Eileen Wampler’s regular duty hours were 7 a.m. to 3 p.m., and all of her duties were performed at one location—the B & E Convalescent Center at 14819 South Vermont in the City of Gardena. She was never required to travel to any other location to perform any services incident to her employment. No arrangements had ever been made to have her travel time considered as a part of her working day nor was she at any time compensated for travel to and from work.

The entire basis for plaintiffs’ contention that the doctrine of

respondeat superior

would, under the circumstances, impose liability on the employer for the negligence of Eileen Wampler, was the fact that from time to time she was subject to special call to report for work at times other than her regular hours of work although it is conceded that on the date of the accident she was going to her regular work shift.

We conclude as a matter of law that the simple fact that an employee may be subject to call to duty during hours other than their normal duty hours does not without more make their travel to and from work an activity which is within the scope of their employment.

Plaintiffs concede that generally an employee who is going to or coming from work is not, during such times, considered to be acting in the course or scope of his employment. This is the so-called “going and coming” rule.