Augustus Vogt, et al. v. Herron Construction, Inc.

Court of Appeal, Fourth District (November 1, 2011)

This case arose from a construction site injury that occurred on October 31, 2007. Plaintiff Vogt was an employee of a concrete subcontractor, Performance Concrete ("Performance.") Defendant Herron Construction ("Herron") was the framing contractor on the project. Cruz, an employee of Herron, parked his personal vehicle next to the location where Performance was about to pour cement, prompting Vogt to ask Cruz to move his vehicle. Cruz complied, but ran over Vogt as he moved the vehicle.

Vogt sued Herron for his injuries, asserting causes of action based on a theory of vicarious liability, or respondeat superior. Herron moved for summary judgment on the grounds that Cruz was not acting in the course and scope of his employment because the vehicle was Cruz's personal vehicle, and he moved it for the non-work-related purpose of preventing damage to his (personal) vehicle.

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