“Going and Coming” Rule Intact Where Employee Not Required to Have Personal Vehicle Available for Company Business

Haight Brown & Bonesteel LLP

In Jorge v. Culinary Institute of America (No. A143545, filed 9/16/16), a California appeals court held that an employer was not liable on a respondeat superior theory for the negligence of its employee as there was no evidence supporting the jury’s finding that the employee was acting within the scope of his employment at the time of the accident. The “required vehicle” exception to the coming and going rule did not apply to place liability back on the employer as the subject employer did not require the employee, either expressly or implicitly, to use his personal vehicle to accomplish his job duties.

In Jorge, Almir Da Fonseca (“Fonseca”) was hired as a culinary instructor for the Culinary Institute of America (“Institute”). In addition to teaching classes at one of the Institute’s branch campuses, when his schedule permitted Da Fonseca would work for a variety of off-campus events on behalf of the Institute. Da Fonseca readily volunteered for the off-campus events, which included cooking conferences, retreats and consulting projects. Da Fonseca was never asked to have his car available during the day and did not make any arrangements to have his car available for the Institute. While Da Fonseca did drive his personal vehicle to work on the days he was teaching at the campus and to the off-campus events that were within driving range, he was never required to drive his own vehicle. For example, for local travel on consulting trips, he was free to rent a car, take public transportation, carpool or use his own car. Da Fonseca’s manager and supervisor were not aware of how he got to work or to the various consulting sites.

On the date of the accident, Da Fonseca completed a full day of teaching at the campus and was driving home when he struck two pedestrians, one of whom was Plaintiff. Plaintiff sued Da Fonseca and the Institute for negligence. The case proceeded to a jury trial where the jury reached a verdict finding Da Fonseca was negligent and that he was acting within the scope of his employment at the time of the accident. Shortly after judgment was entered, the Institute moved for judgment notwithstanding the verdict, arguing that there was insufficient evidence that Da Fonseca was acting within the scope of his employment at the time of the accident, which was denied. The Institute appealed, and the Court of Appeal reversed.

In its reasoning, the Jorge court first acknowledged the well-established going and coming rule, which stands for the principle that an employee’s commute to and from work is generally considered outside the scope of employment. Consequently, an employer ordinarily is not liable for the torts committed by its employees during a commute.

The Jorge court next noted several exceptions to the going and coming rule, including the “required vehicle” exception. This exception applies, and thus potentially places liability back in the employer’s seat, when an employee’s use of his or her vehicle is an implied or express condition of employment. For instance, where a county social worker was required to bring his car to work to be able to visit his clients on field days and be available to see clients in emergencies on regular office days, the exception applies. Or where a farm laborer working for an operator of several non-contiguous ranches was required to use his vehicle not only to get to the fields but also to get to separate ranches to perform the day’s work, the exception would apply. In effect, the employer required the laborer himself to have a vehicle to get to the different fields designated by the foreman.

The Jorge court distinguished such circumstances, finding it dispositive that the Institute did not require the use of a vehicle as an integral part of performing the job duties at disparate locations throughout the workday. In other words, the Institute did not require Da Fonseca to drive to and from work in order to have his vehicle available for company business. During trial, there was no evidence that the Institute expressly required Da Fonseca to use his car for work purposes. Neither was there an implied requirement as Da Fonseca did not need a car for any purpose while teaching on campus and he could have used alternative means for off-campus travel. Rather, Da Fonseca chose to drive as a matter of convenience.

Jorge serves to reaffirm the going and coming rule and also provides clarification of the “required vehicle” exception. While Jorge ultimately came down against application of the exception, it is worth noting that the exception applies whenever the employee needs to use his or her vehicle or have it available during the work day to perform job duties. Where these requirements are not met and assuming no other exceptions apply, the going and coming rule should still prevail when an employee is commuting to and from work.

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Haight Brown & Bonesteel LLP

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