Weekly Law Resume - October 2013: Torts–Vicarious Liability–Special Errand Exception to “Going and Coming” Rule

by Low, Ball & Lynch

Nadja Rayii v. Melvin Ovidio Gatica, et al.
Court of Appeal, Second Appellate District, Division Three (July 24, 2013)

The “going and coming” rule generally exempts employers from liability for wrongful acts committed by employees while on their way to and from work, because employees are said to be outside of the course and scope of employment during their daily commute. This case considered whether the employer was liable for the employee’s accident under the “special errand” exception to the rule, which allows a plaintiff to recover for her injuries from the employer of the defendant employee who is traveling to or from work, if the injuries occur while the employee is engaged in a special duty or errand for his employer.

Melvin Gatica (“Gatica”) was employed by Gateway Insulation, Inc. (“Gateway”) at its warehouse located in Valencia. Early in the day his supervisor sent him to a jobsite in Lancaster. Gatica drove a Honda Accord to Lancaster that he had just purchased from his friend, Carlos Seciada (“Seciada”), the day before. He left the Lancaster jobsite at 5:26 p.m. by taking a two-lane road. He crossed the double-yellow line while turning a curve and crashed head-on into a vehicle driven by Nadja Rayii (“Rayii”), causing her severe injuries.

Rayii filed a personal injury complaint against Gatica and Seciada alleging negligence. She later named Gateway as a defendant. At trial, Rayii moved for a directed verdict against Gateway, arguing that Gatica was returning from a “special errand” for his employer Gateway at the time of the collision and that he was acting within the scope of his employment. The trial court denied the motion. The jury returned a special verdict finding, among other things, that Gatica was not acting in the course and scope of his employment at the time of injury. Rayii moved for judgment notwithstanding the verdict as to Gateway. The trial court denied her motions. Rayii appealed.

The Court of Appeal affirmed, finding that citing evidence that contradicted the jury’s finding was not enough. Referencing Gatica’s own testimony, Rayii argued that the evidence showed Gatica was returning to Gateway’s warehouse in Valencia from the jobsite in Lancaster, and that he was thus clearly on a special errand for his employer. However, the Court noted that substantial evidence – not cited by Rayii - supported the finding that Gatica was not acting in the course and scope of his employment. Gatica was sent from the Valencia warehouse to the Lancaster warehouse at 10 a.m. and was returning from his assignment in Valencia at 5:26 p.m. on a road that led back to the Valencia warehouse as well as to his home. His supervisor did not expect Gatica to return to the Valencia warehouse after his assignment because company policy did not require workers to return to the warehouse at the end of a work day. Thus, the jury could reasonably find that the Lancaster job was not a “special errand” and that Gatica was not returning to the warehouse at the time of the collision, but was on his way home.

Although Rayii had argued that there was sufficient evidence for the jury to find that Gatica was in the course and scope of his employment, Rayii ignored the evidence in support of the jury’s finding. The Court held that an appellant who fails to cite and discuss the evidence supporting the judgment cannot demonstrate that such evidence is insufficient. The fact that there was substantial evidence in the record to support a contrary finding does not compel the conclusion that there was no substantial evidence to support the judgment.


An appealed judgment is presumed correct unless an appellant affirmatively demonstrates error. The fact that there is substantial evidence to support a contrary finding does not compel the conclusion that there was no substantial evidence to support the judgment. While Gatica’s testimony would have been enough to allow a jury to vote in Rayii’s favor on the vicarious liability issue, the jury ultimately has great leeway in evaluating conflicting evidence.

For a copy of the complete decision see:


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