Demurrer re: Respondeat Superior

An employer may be vicariously liable under the doctrine of respondeat superior for torts committed by employees:

(1) in the course and scope of employment, and

(2) if there exists a reasonable relationship between the duties of employment and the conduct causing injury, or

(3) the injury was reasonably foreseeable in light of the employer’s business or employee’s job responsibilities.

Lisa M. v. Henry Mayo Newhall Memorial Hospital (1995) 12 Cal.4th 291, 298; Baptist v. Robinson (2006) 143 Cal.App.4th 151, 161; Bailey v. Filco, Inc. (1996) 48 Cal.App.4th 1552, 1559–1560. An employer is liable for personal injuries caused by an employee where the employment in some way involves the risk thereof and the act is not motivated by independent personal malice. Flores v. Autozone West, Inc. (2008) 161 Cal.App.4th 373, 380-382.

Here, plaintiff has used a Judicial Council form complaint, checking the boxes relative to respondeat superior at MV-2(b). Although form complaints are not immune from pleading attack, some deference is afforded the use thereof for claims requiring only notice pleading – which is the case here. Defendant contends that plaintiff must provide “more facts” regarding the employment relationship and the need to drive in the course and scope, but these are matters keenly in the knowledge of defendant, not plaintiff. The degree of detail required depends on the extent to which the defendant in fairness needs such detail which can be conveniently provided by the plaintiff. Less particularity is required when the defendant ought to have co-extensive or superior knowledge of the facts. Leek v. Cooper (2011) 194 Cal.App.4th 399, 413.

Demurrer overruled. Defendant to answer in 10 days.

Motion to Strike Punitive Damages

Plaintiff contends that defendant driver was intoxicated at the time, and that she knew she was intoxicated from the amount of alcohol she consumed prior to getting back behind the wheel. Plaintiff also adds a new allegation: that defendant was texting her boyfriend immediately prior to impact.

The two leading opinions on punitive damages in drunk driving cases are Taylor v. Superior Court (1979) 24 Cal.3d 890 (consuming alcohol while driving), and Dawes v. Superior Court (1980) 111 Cal.App.3d 82 (swerving in and out of lanes amongst pedestrians) – and collectively stand for the proposition that merely driving while intoxicated is not enough for punitive damages, but that driving in a way which enhances an appreciable risk to others may. To clarify the issue, the Legislature followed these two cases with the “despicable” requirement for non-intentional malice claims under §3294. Lackner v. North (2006) 135 Cal.App.4th 1188, 1210.

Recently, the Court of Appeal in Sumpter v. Matteson (2008) 158 Cal.App.4th 928, 936, revisited this issue – albeit not at the pleading stage. In that case, the matter was tried to a jury which declined to award punitive damages. Plaintiff appealed, asserting that the jury was required to award punitive damages on the state of the evidence. The Court noted that the evidence of malice was sufficient: “We are mindful that Matteson ingested drugs right before he left his house, that by his own admission, Matteson knew he was under the influence when he got into his car, and that Matteson knew the light was red for over a quarter mile before he entered the intersection, yet he never braked, choosing instead to take the risk and run the red light. Such conduct reflects a conscious disregard for the rights and safety of others and would have supported the imposition of punitive damages in this case.” Id. However, the Court further noted that the trier of fact is free to weigh the evidence and make its own determination as to punitive damages.

While Taylor, Lackner and Dawes teach us that causing an accident while under the influence is, alone, not enough to support an award of punitive damages – no court has really answered the question “what more is needed?” Based on Sumpter though, that line is in close proximity to (1) knowing you are intoxicated and (2) driving in a way which increases the risk of others because of your lowered judgment/inhibition. Such a line is consistent with Taylor, Dawes and Lackner, and can be meaningfully applied to distinguish one DUI accident from another.

Here, plaintiff has alleged texting while driving under the influence. Although no court has yet connected the dots this way, this Court sees no reason why such allegations could not support a prayer for such damages – at least at the pleading stage.

Motion to strike DENIED. Defendant to answer in 10 days.