The doctrine “respondeat superior” means that the employer may be held liable for the act of its employee committed in the course and scope of employment, or something close to that.  The idea is that the employer has a deeper pocket and can spread the costs of its liability to… oh never mind.  The doctrine comes up when employees commit “torts” and third parties seek personal injury damages from the employer.  It also may come up when there is a dispute over the application of workers’ compensation coverage to an employee’s injury. 

The respondeat superior rule is old. So, one doesn’t see published case law about it unless the old rule is going to be applied to a modern set of facts.  That’s usually bad news for employers. But that was not the case in Ayon v. Esquire Deposition Solutions LLC.  Here are the facts from the court:

So, both Esquire workers were off duty when the Zuppardo’s accident happened.  But Zuppardo was the scheduling manager, and she was talking on the cell phone with Halkett.  So, Ayon wanted to argue that they were talking about work, and that Esquire therefore was responsible for the accident.

The general rule is that an employee’s off duty conduct is not charged to the employer under respondeat superior. But there are exceptions, and with today’s technology, what is “off duty” or “on duty” can be murky.  In truth, the courts are more concerned with whether the employee’s conduct is “foreseeable” as an outgrowth of the business than whether the employee is “working” on the employer’s behalf.  In the case of using cell phones while driving, the court quoted from another case:

Here, plaintiff has only one theory of respondeat superior liability: that Zuppardo was calling Halkett concerning a scheduling issue for a deposition. Plaintiff contends this would support a finding of respondeat superior liability, citing Miller v. American Greetings Corp. (2008) 161 Cal.App.4th 1055. There, the court held that a work-related phone call more than eight minutes before a driver hit a pedestrian did not create a disputed material fact that could give rise to respondeat superior liability. (Id. at pp. 1062-1063.) In reaching this conclusion, however, the court recognized that, in some cases, a cell phone call clearly would give rise to respondeat superior liability: “We envision the link between respondeat superior and most work-related cell phone calls while driving as falling along a continuum. Sometimes the link between the job and the accident will be clear, as when an employee is on the phone for work at the moment of the accident.” (Id. at p. 1063, italics added.) 

Here, though, the facts from the depositions established that the two Esquire employees were not speaking about work.  Moreover, Zuppardo wasn’t using an Esquire phone, and it was not a routine part of her job to call court reporters from her cell, although it happened. So, Esquire won the case primarily because both Zuppardo and Halkett testified, and Zuppardo’s police interview reflected, that they were involved in a personal conversation, were friends, and frequently spoke off duty about personal matters.  Here are some additional facts that could have complicated the case. 

• Zuppardo was responsible in part for contacting reporters after-hours for scheduling matters, thought that was not routinely her job. But Zuppardo theoretically could have been booking or cancelling a court reporting job on the phone, although that happened rarely.
• At one point, Zuppardo had an Esquire-issued cell phone to perform after-hours work. However, that phone was discontinued as of the time of the accident.  When she needed to use a phone after hours, she used her personal cell phone.
• Although both testified they spoke often for personal reasons, cell phone records disclosed no calls in the six months before the accident.
• Esquire had a no-cell-phone-while-driving policy.
• Zuppardo was talking on a hands-free system, while driving, legal in California.

The Court reached the right result here because of the personal nature of the call, and the fact that Zuppardo’s use of her personal phone to call Halkett about her son’s prom was not foreseeable to be part of her job.  However, if it had been an Esquire phone, or if the plaintiff had proved the call was work-related, or that Zuppardo’s cell phone use for work was routine, the plaintiff may have reached a jury.  She plainly desired having Esquire as a defendant so she could recover from Esquire damages in excess of Zuppardo’s insurance policy. 

So, there are some takeaways that could reduce the likelihood of a respondeat superior liability:

• When the company furnishes a cell phone for employees to use after hours, the risk of liability increases.  But regardless, employers should implement proper policies and procedures. 
• For example, cell phone use policies are important, and they should be enforced via discipline / termination.
• Employees who must drive while speaking on their phones may be subject to driving record checks.
• Although there’s no record that alcohol or drugs were involved here, employers should bar employees from such use when driving, and especially when using a cell phone for work;
• Sometimes the nature of the business or the employee’s job are such that after hours work, or calls while driving, are necessary.  But employers should be clear with employees in those jobs or businesses when after-hours work or phone calls while driving are not required or expected.  

This case is Ayon v. Esquire Deposition Solutions LLC and the opinion is here.