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Harless v. Nash5/19/1998
RELEASE FOR PUBLICATION BY ORDER OF COURT OF CIVIL APPEALS
AFFIRMED
Defendant/Appellee Weatherford U.S., Inc. moved for summary judgment in its favor on the ground that any negligence committed by its employee, Nash, occurred while Nash was returning to work. Under the "going and coming rule," an employer is not liable for damages caused by its employee who is merely going to or coming from work. The court certified the grant of summary judgment pursuant to 12 O.S. Supp. 1995 Section 994(A), finding no just reason for delay in entering a final judgment. We affirm.
The motion for summary judgment, as well as the individual responses of Plaintiff William Jerry Harless and Defendant Dale Frederick Nash, depend on Nash's deposition testimony in support of their positions. No party presented any other evidence.
Nash's deposition reveals that he was off work on the date when he was involved in the car wreck with Harless in November 1994. He stated that he worked out of Weatherford's store in Liberal, Kansas, but had also worked out of stores in Elk City and Woodward. He was in Elk City, his home, because of the Thanksgiving holiday. Some weekends he would go to Elk City. He stated that his job was a 24-hour on-call job, unless there was a holiday. Weatherford did not compensate him for driving from Elk City to Liberal. Weatherford had never sent him from Liberal to Elk City to pick up parts. He never used his own vehicle, a pickup truck, for company business. He was driving his own truck at the time of the wreck. Weatherford had called him one night during the Thanksgiving holiday and asked him to return to work the next day in Liberal because of unavailability of people. If the company had a job for him to do during a holiday, someone would call him and ask him to return to the shop, rather than telling him to go directly to a job site. Although it was still his holiday time, he was not compensated for the day he drove back to Liberal. The wreck occurred at the intersection of Business 40 and Highway 34. His home base store was in Liberal, which is 191 miles from Elk City. He lived in a motel room while in Liberal.
The basic rule pertaining to employer liability for the torts of an employee is that the "burden is upon the plaintiff to show, not only that the alleged employee was an employee of the defendant, but that at the time the injury was sustained and the property damage suffered he was engaged in the performance of an act which was within the scope of his employment." Elias v. Midwest Marble and Tile Company, 1956 OK 259, 302 P.2d 126 (syllabus by the court). Insofar as commuting time, as "a general rule, a man's employment does not begin until he has reached the place of his employment, and does not continue after he has gone, and where employer's liability for negligent acts of his employee is determined under the doctrine of respondeat superior the rules relating to tasks applied in workmen compensation cases has no application." Id. at 127 (syllabus by the court). In the Elias case, an employee was called into work for a few hours on a Saturday which was his usual day off. The employee was involved in a car wreck that day, while driving home at the end of the two hour job. He was in his own car and he paid its operating costs. The plaintiff in Elias argued that the employee was on a special task for his employer because he had worked on his normal day off at a place different from previous days. The Elias court found that these facts did not show that the employee was engaged in a special task for his employer, which would constitute an exception to the rule, because the test for respondeat superior is whether "at the time of the alleged a
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