IN THE COURT OFAPPEALS OF THE STATE OFWASHINGTON

HEIDI SCHUYLEMAN, individually and a 

### ) No. 78908-2-I Personal Representative ofthe ESTATE 

### ) OF JASON LYLE SCHUYLEMAN, and as 

### ) DIVISION ONE representative ofSERENA SHUYLEMAN, 

### ) age 14, child ofJASON LYLE 

### ) UNPUBLISHED OPINION SCHUYLEMAN and JASON’S 

### ) stepchildren, HAlLEYWOOLSEY, age 7, 

### ) COLLEEN SHEWEKING, age 10, JULIA 

### ) SHEWEKING, age 12, and RICHARD 

### ) LOTHROP, age 20, Appellant,

v. BP WEST COAST PRODUCTS, LLC, a 

### ) Delaware Limited Liability Corporation and 

### ) its affiliates Cherry Point Refinery at 

### ) Ferndale, Washington,

Respondent, 

### )

) BRIAN JEFFREY SMITH, as a separate 

### ) person in his own right, BRIAN JEFFREY 

### ) SMITH and JANE DOE SMITH, husband 

### ) and wife and the marital community 

### ) composed thereofand other unknown 

### ) parties, Defendants. 

### ) FILED: July 1,2019 HAZELRIGG-HERNANDEZ, J.

— Heidi Schuyleman seeks reversal ofan order dismissing her claims ofvicarious liability and negligence against BP West CoastNo. 78908-2-1/2

Products, LLC. Because BP’s company Christmas party was aimed toward children and there was no alcohol served or expectation that attendees would be drinking, BPwas nota “banquet-hosting employer.” Therefore, it is notvicariously liableforthe injuriescaused byits intoxicated employeewhen hewas driving home

over an hour and a half after he left the party. Additionally, because the injury occurred off of BP’s premises, BP had no duty to protect third parties from its employee acting outside the scope ofemployment. We affirm. FACTS BP West Coast Products, LLC, operates the Cherry Point Refinery in Ferndale, Washington. The Cherry Point Rec Club is avolunteergroup of refinery employees thatorganizes the Cherry Point Rec ClubAnnual Children’s Christmas Party each year. The afternoon event is geared toward children aged twelve and younger, and features such activities as face-painting, crafts, and pictures with Santa. Refinery employees, retirees, and contractors are invited to attend the party with theirfamilies, but attendance is not compulsory. The organizers track the total number of adult and child attendees but do not track attendance of individual employees. A BP identification badge is required forentry. No alcohol is provided atthe party. Although theywere not aware ofa written rule forbidding drinking atthe party, multiple BP employees asserted thatthe companyhas astrict drug and alcohol policy at work and that there is typically no drinking at the Christmas party. One Rec Club member asserted that she had never known of anyone drinking or being intoxicated at the party in the 39 years that she had attended the event.

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On December 5, 2014, Brian J. Smith leftwork atthe refinery around 5:00 p.m. and drove to the Lynden Fairgrounds to meet his wife and children for the party. Multiple party attendees said thatthey interacted with Smith and he did not appear intoxicated atthe event. Smith and his family left the party shortly after it ended at 7:00 p.m. and went to dinner atthe RustyWagon. The Smiths were at the restaurantfrom approximately 7:30 to 8:20 p.m. Theirservertold co-workers that she thought Smith was drunk because he appeared disoriented and slow to respond to herquestions, butshe did not smell alcohol on him. She asserted that she had been trained on indicators of intoxication to avoid overservice of alcohol. Smith did not order any drinks at dinner, but admitted he drank one beer after dinner in the parking lot. Smith left the restaurant and drove home alone in his

own car. Atapproximately8:43 p.m., as hewas driving home, he collided with Jason Schuyleman, who was driving a motorcycle. The trooper who responded to the

scene observed that Smith’s eyes were bloodshotand wateryand his speech was slightly slurred. Smith performed poorly on field sobriety tests, and a voluntary breath sample produced a reading of .145 on the portable breath test at 9:40 p.m. Smith was arrested for driving under the influence. Four hours and 47 minutes after the collision, a blood test measured Smith’s blood alcohol content at 0.05 grams per 100 milliliters. Jason Schuyleman died from the injuries he sustained in the collision. Heidi Schuyleman, individually, as personal representative of Jason’s estate, and as representative of each of their children, filed a complaint against

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Smith and BP West Coast Products LLC. The complaint alleged that BP was negligent in failing to identify Smith as intoxicated at the Christmas party and vicariously liableforSmith’s negligence in driving a motorvehiclewhile intoxicated. Schuyleman alleged that BP was vicariously liable because Smith had consumed the alcohol atthe company party and the party served a business interest ofthe company. BP moved for summary judgment, arguing that Schuyleman had not established the elements ofvicarious liability or direct negligence and her claims failed as a matter of law. The trial court granted the motion and dismissed all of Schuyleman’s claims against BP with prejudice. DISCUSSION Schuyleman contends that the court erred in dismissing her claims of vicarious liability or, in the alternative, direct negligence against BP on summary judgment. We review summaryjudgment orders de novo. Keckv. Collins, 184 Wn.2d 358, 370, 357 P.3d 1080 (2015). A trial court may properly grant summary judgmentwhen there are no genuine issues of material fact and the moving party is entitled to judgment as a matter of law. CR 56(c). Summary judgment is warranted when the plaintiff has failed to make a factual showing sufficient to establish an essential elementofa claim. Young v. Key Pharmaceuticals, Inc., 112 Wn.2d 216, 225, 770 P.2d 182 (1989). When reviewing a dismissal by summary judgment, we accept the affidavits and deposition testimony as verities and

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considers all facts and reasonable inferences in the light most favorable to the plaintiff. Dickinson v. Edwards, 105Wn.2d 457, 461, 716 P.2d 814 (1986). Vicarious Liability Generally, an employer is liable for the acts of an employee committed within the scope or course of employment. Nelson v. Broderick & Bascom Rope Co., 53Wn.2d 239, 241, 332 P.2d 460 (1958). With several exceptions, traveling to or from work is usually not an action within the scope of employment. Aloha LumberCorp. v. Dep’tof Labor& Indus., 77Wn.2d 763, 766, 466 P.2d 151 (1970). When an intoxicated employee causes an accident after leaving a company party, the “banquet-hosting employer” may be vicariously liable forthe plaintiff’s injuries in certain instances. Dickinson, 105Wn.2d at468. Dickinson introduced this “new application” ofthe vicarious liabilitydoctrine as follows:

A plaintiffmay recoverfrom a banquet-hosting employer ifthe following prima facie case is proven: 1. The employee consumed alcohol at a party hosted by the employerwhich was held to furtherthe employer’s interest in some way and at which the employee’s presence was requested or impliedly orexpressly required bythe employer. 2. The employee negligently consumed alcohol tothe pointof intoxication when he knew or should have known he would need to operate avehicle on some public highway upon leaving the banquet. 3. The employee caused the accident while driving from the banquet. 4. The proximate cause of the accident, the intoxication, occurred atthetimethe employee negligentlyconsumedthe alcohol. 5. Since this banquet was beneficial to the employer who impliedly or expressly required the employee’s attendance, the employee negligently consumed this alcohol during the scope of his employment.

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The employer is, therefore, vicariously liable under respondeat superior on the ground that the proximate cause ofthe accident occurred whilethe employeewas acting within the scope of his employment. This action does not affectthe “going and coming” rulesince itassertsthatthe proximate causeofthe accidentoccurred atthe banquet, before the employee even attempted to drive away. See Comment, Employer Liabilityfora Drunken Employee’sActions Following an Office Party: A Cause of Action Under Respondeat Superior, 19 Cal. W.L. Rev. 107, 137 (1982) and Chastain v. Litton Sys., Inc., 694 F.2d 957 (4th Cir.1982). ki. at468—69. Dickinson did not define the term “banquet-hosting employer” and did not explicitly state thatthe employer must have provided the alcohol to the employee to be vicariously liable forthe employee’s negligence. In that case, the employee had attended a banquet provided by his employerwhere dinner, champagne, wine, and mixed drinks were served. j~ at 459. The employer paid forthe use ofthe facilities, service, and all ofthefood and beverages.j4~ The banquetorderdirected the servers to “keep the glasses filled.” Id. at459—60. In Fairbanks, which refined the elements first set out in Dickinson, the banquet-hosting employer held a company Christmas banquet at one of its properties and provided food, wine, and champagne forthe guests. Fairbanks v. J.B. McLoughlin Co., 131 Wn.2d 96, 98, 929 P.2d 433 (1997). When the lead opinion in Dickinson introduced this newtheory, it drewthe above-quoted language nearly verbatim from analysis proposed in the cited law reviewcomment. See PatrickJ. Barry, Comment, Employer Liabilityfora Drunken Employee’s Actions Following as Office Party: A Cause of Action Under Respondeat Superior, 19 Cal. W. L. Rev. 107, 137 (1982). The Comment

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addressed “the specific employer-sponsored party situation where an employee becomes intoxicated, attemptsto drive home, and injures a third party.” Id. at 107. It framed the legal issue as “the conflict between the employer’s act of goodwill and the creation ofaforeseeable riskofharm to drivers and pedestrianswho might encounterthe drunken employee.” ki. Before reaching the prescriptive portion of the Comment from which Dickinson drew heavily, Barry reviewed general liquor liability laws, liability of social hosts who supply alcohol, and analyzed a specific California case in which an employee caused an accident after drinking alcoholic beverages furnished by his employerat an office Christmas party. ki. at 108. Schuyleman arguesthatthe language of Dickinson and Fairbanksdoes not indicate thatthe alcohol must be furnished bythe employerfor itto be vicariously liable. Although the elements aswritten do not include this specific language, the court’s rationale does not support Schuyleman’s position. There would be no foreseeable risk of harm to third parties from an employee driving home from a company party at which the employer did not provide alcohol or encourage drinking. Schuyleman also contends thatthere would be no consequencesforan employee who drankto intoxication on thejob and then drove and injured a third party ifthe employer did not directly supply or encourage the drinking. However, the banquet-hosting employer analysis would not apply if there was no party furthering the employer’s interests. We decline to apply the banquet-hosting employer analysis for vicarious liability to an employer who did not supply alcohol to employees or explicitly or implicitlycondone drinking atan afternoon companyChristmas partyaimed toward

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young children. The trial court did not err in dismissing Schuyleman’s claim of vicarious liability. II. Negligence Schuyleman contends in the alternative that BP was directly negligent in failing to anticipate and prevent an employee from leaving the event in an intoxicated condition and driving on rural roads after dark. To establish direct negligence, Schuyleman must show “(1) the existence of a duty owed to the complaining party; (2) a breach ofthat duty; (3) a resulting injury; and (4) thatthe claimed breach was the proximate cause of the injury.” Hansen v. Friend, 118 Wn.2d 476, 479, 824 P.2d 483 (1992) (citing Pedroza v. Bryant, 101 Wn.2d 226, 228, 677 P.2d 166 (1984)). Generally, there is no duty to protect another from the actions of a third person. Tallariti v. Kildare, 63Wn. App. 453, 458, 820 P.2d 952 (1991). However, in certain instances, an employerhas a dutyto control an employee acting outside the scope ofemployment: A master is under a duty to exercise reasonable care so to control his servant while acting outside the scope of his employment as to prevent him from intentionally harming others orfrom so conducting himselfas to create an unreasonable risk ofbodily harm to them, if (a) the servant (i) is upon the premises in possession ofthe master or upon which the servant is privileged to enteronly as his servant, or (ii) is using a chattel ofthe master, and (b) the master (i) knows or has reason to know that he has the ability to control his servant, and (ii) knows orshould knowofthe necessity and opportunityfor exercising such control.

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ki. (quoting Restatement(Second) ofTorts

### § 317 (Am. Law. Inst. 1965). InTallariti, the plaintiffsfiled a negligence claim againstan employerafteran employee drank to intoxication on the employer’sjob site, leftto drive home, and collided with the plaintiff. Id. at454—55. Thiscourtfoundthat“unlesstheemployee is using achattel ofthe master, an employer has a dutyto protectthird persons onlyfrom acts ofan employee that are committed while the employee is on the employer’s premises.” ki.at458—59 (citing Restatement (Second) ofTorts

### § 317(a) (Am. Law. Inst. 1965)) (emphasis in original). Because the employee was “miles from thejobsite” when he caused the injuries to the plaintiffs, this courtfound thatthe employer owed no dutyto the plaintiffs. Id. at459. As in Tallariti, Schuyleman’s injuries occurred away from BP’s premises, and therefore BP owed no duty to Schuyleman under section 317 of the Restatement. Schuyleman argues that the Tallariti court did not consider the holding in Dickinson that“the relevantconduct ofthe drunk employee driver isthe conductthatoccurs atthe company party[.]” She arguesthatsection 317 imposes

a duty on the employerto control the employee while on the premises to prevent the employee from drinking to intoxication so as to create an unreasonable risk of harm to others when he leavesthe premises. However, this court cited Dickinson to distinguish Tallariti from the scenario in which the employerfurnished alcohol to the employee. Tallariti, 63 Wn. App. at 459—60. There is no indication that the Tallariti court failed to consider Dickinson. Also, as BP noted in its briefing, the Dickinson banquet-hosting employeranalysis involved vicarious employer liability

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for breach of the employee’s own duty of care rather than any duty that the employerowed to third parties directly. Dickinson, 105Wn.2d at457. Schuyleman argues that a North Carolina case found that section 317 of the Restatement applied in a similarfactual scenario. In that case, the Court of Appealsfound thatthe employer had a dutyto control the actions ofthe employee when supervisory personnel were aware that employees commonly met in the parking lotoftheworksitetodrinkbeerbeforedriving home andtheaction violated company policy. Peal ex rel. Peal v. Smith, 115 N.C. App. 225, 226, 233, 444 S.E.2d 673 (1994). The court found that “the common law duty of a master to control his servant undercertain circumstances as outlined in Restatement

### § 317, taken togetherwith the defendants’ own written policies established a standard of conductthat ifbreached could result in actionable negligence.”j4~ at233. However, thefactthatsupervisory personnel were aware ofthe activity is a significantfactual distinction from the present case. Also, as BP pointed out in its briefing, Peal was upheld by the North Carolina Supreme Court in an equally divided, per curiam opinion and therefore “the decision ofthe Court ofAppeals is left undisturbed and standswithout precedential value.” Peal ex rel. Peal v. Smith, 340 N.C. 352, 352, 457 S.E.2d 599 (1995). We elect notto rely on this decision ratherthan relevant case lawfrom Washington courts. Because BP had no duty to protect third parties from the acts of its employees acting outside the scope ofemployment and offof BP’s premises, the trial court properly dismissed Schuyleman’s negligence claim.

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Affirmed. 

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~ ~IA~ WE CONCUR: ~ 

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