Articles Posted in Respondeat Superior

While riding his bicycle, a victim collided with the door of a driver’s personal vehicle when the driver opened the door. The bicyclist sued the driver and the driver’s employer, alleging negligence and respondeat superior liability. The lower court granted summary judgment in the employer’s favor on the ground that the “going and coming” rule barred employer liability for this California bicycle accident during his commute to work. The bicyclist argued the defendant did not meet its initial burden of production on summary judgment to show the going and coming rule applied. He further argued triable issues of material fact existed as to the rule’s applicability here. The California Court of Appeal for the Fourth District held that whether the going and coming rule applied in this case could not be decided as a matter of law; therefore, it reversed the summary judgment.

On October 16, 2014, the driver drove his personally owned Chevrolet Suburban from his home and parked on Brandywine Ave. He stayed in his personal vehicle for a few minutes to gather his phone, wallet, and other items. The victim was riding his bicycle and struck the door of the driver’s personal vehicle as soon as the driver opened it.

He filed suit, alleging he suffered injuries during the accident and pleading a respondeat superior theory. The employer moved for summary judgment on the grounds that it was not liable for the injuries under respondeat superior, and undisputed facts showed the going and coming rule barred the claim. They stated that “Hunt did not have a fixed office location that he commuted to on a regular basis, but instead as a territory manager for A-Z Bus, would regularly drive to his rental vehicle to make sales calls. As such, his company-reimbursed rental vehicle was his ‘fixed place of business’ and his commute to and from the rental car was his normal commute that fell under the going and coming rule.”

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.

car accident

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.

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