Respondent Leopoldo Jorge, Jr. sued Almir Da Fonseca and appellant Culinary Institute of America for injuries suffered when he was hit by a car driven by Da Fonseca, a chef instructor employed by the Institute. Although Da Fonseca had finished his shift at the Culinary Institute and was driving home in his own vehicle at the time of the accident, a jury found the Institute liable for Jorge’s injuries on a theory of respondeat superior. The Culinary Institute moved for judgment notwithstanding the verdict on the ground that Da Fonseca was not acting within the scope of his employment at the time of the accident. More specifically, it argued that there was no evidence supporting the application of the “required vehicle” exception to the “going and coming” rule, and thus it could not be vicariously liable for Da Fonseca’s negligent conduct while he was commuting home from work. The trial court denied the motion.The Culinary Institute appealed, again arguing that it could not be liable to Jorge for injuries caused by Da Fonseca’s negligence because there was no evidence that at the time of the accident, Da Fonseca was acting within the scope of his employment. The California Court of Appeals for the First District agreed and reversed.
In February 2010, Da Fonseca drove his car to work to start his shift at the Culinary Institute’s campus in St. Helena. After work, he left in his car, heading toward his home in Sebastopol. As he was driving down Calistoga Road, he struck two pedestrians, 14-year-old Jorge and his then-girlfriend.
Jorge, through his legal guardian, filed a complaint for negligence against Da Fonseca. An amended complaint added a claim against the Culinary Institute, based on a respondeat superior theory.
The appeals court first explained that under the theory of respondeat superior, an employer is vicariously liable, regardless of its own fault, for the tortious conduct of its employees acting within the scope of their employment. While an employer’s vicarious liability for the torts of its employees is well established, courts have recognized that an employee’s commute is ordinarily considered outside the scope of employment so that the employer is not liable for the employee’s torts committed during the employee’s commute. There are several exceptions to the going and coming rule, however, that if applicable will result in an employer being liable for its employee’s tortious conduct that occurs during the commute. These exceptions typically arise when the trip carries incidental benefits to the employer. But it must be a benefit sufficiently great to justify making the employer responsible for the risks inherent in the travel. The applicability of one such exception—the required vehicle exception—was at the heart of this case.
It was undisputed that at the time of the accident, Da Fonseca was commuting home from the Culinary Institute’s St. Helena campus. As a result, the going and coming rule would typically bar a vicarious liability claim against the Institute. To take his claim outside the rule, Jorge invoked the required vehicle exception, arguing at trial that the Culinary Institute required Da Fonseca to use his personal vehicle to accomplish his job duties. The jury agreed, finding that Da Fonseca was acting within the scope of his employment at the time of the accident. The appeals court, however, held that this finding was not supported by substantial evidence.
Under the required vehicle exception, the employer’s requirement that an employee use a personal vehicle may be express or implied. Here, there was no evidence that the Culinary Institute expressly required Da Fonseca to use his car for work purposes. Witnesses testified that chef instructors were never told to use their private vehicles for any purpose. And Da Fonseca confirmed this. Jorge did not present any evidence to the contrary. There was therefore no evidence of any express requirement.
Da Fonseca did not need a car for any purpose on the days he fulfilled his regular chef instructor duties at the St. Helena campus. He testified that he commuted from home to the campus and back in his car as a matter of convenience, but he could have taken public transportation, carpooled, or been dropped off. Witnesses testified that they did not know—and had no reason to know—how Da Fonseca arrived at the campus each day. Da Fonseca was not paid for his commute time to or from the campus. He was never required—indeed, never asked—to run errands on his way to or from the campus or during his work day. Simply, there was no evidence that during his on-campus work days, Da Fonseca was impliedly required to use his car to fulfill any of his work obligations. Thus, there was no evidence of an implied requirement.
The court concluded that the evidence did not support a finding, for the purposes of the required vehicle exception to the going and coming rule, that the employee was required to use his personal vehicle. The evidence showed that the instructor could have used other means for his commute and for off-campus commitments but used his personal vehicle as a matter of convenience. There was no evidence that he needed to use his car or have it available during the work day in order to perform his duties. Furthermore, the instructor’s use of his car to transport his chef’s knives and jackets to and from the campus, to off-campus work commitments, and to the cleaner did not extend liability to the employer.
For these reasons, the appeals court reversed the order denying the Culinary Institute’s motion for judgment notwithstanding the verdict.
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