Metropolitan News-Enterprise


Friday, February 26, 2010


Page 1


C.A. Addresses Vicarious Liability for Employees Driving Home


By STEVEN M. ELLIS, Staff Writer


The family of a San Bernardino County Sheriff’s deputy killed when his motorcycle collided with the car of a man driving home from work can seek to hold the man’s employer liable, the Fourth District Court of Appeal ruled yesterday.

Div. Two held that evidence the employee was required to drive home in his personal vehicle and have it accessible at all times in case he needed to visit customers on short notice raised a triable issue whether his operation of the vehicle benefited his employer.

Deputy Sheriff Daniel Lobo was killed in 2005 when Luis Duay Del Rosario—while leaving the premises of his employer, Tamco, which manufactures steel bars for use in construction—turned into the path of Lobo and two other motorcycle deputies approaching with lights and sirens activated.

Summary Judgment

Lobo’s widow and three daughters sued Tamco, but the company moved for summary judgment contending it was not vicariously liable for Lobo’s death. It argued Del Rosario was not acting within the course and scope of his employment, but merely leaving work at the end of his work day, intending to go home and driving his personal vehicle

Del Rosario, a 16-year employee of Tamco, was a metallurgist and the sole employee with the expertise necessary to determine whether the company’s products were defective. That involved travel to customers’ facilities, but infrequently, so the company reimbursed Del Rosario for his mileage rather than provide him with a company car.

San Bernardino Superior Court Judge Barry L. Plotkin granted the motion, but Justice Art W. McKinster wrote on appeal that the plaintiffs established a triable issue of fact whether Del Rosario met the “required vehicle” exception to the “going and coming” rule, which exempts employers from liability for torts by employees on their way to or from work.

“The evidence is clearly sufficient to support the conclusion that Tamco requires Del Rosario to make his car available whenever it is necessary for him to visit customer sites and that Tamco derives a benefit from the availability of Del Rosario’s car,” McKinster said.

‘Required Vehicle’ Exception

The justice rejected Tamco’s contentions that Del Rosario’s use of his own car for work purposes was too infrequent to warrant application of the exception, and that a plaintiff invoking the “required-vehicle” exception needed to show that driving was an “integral” part of the employee’s job.

“If the employer requires or reasonably relies upon the employee to make his personal vehicle available to use for the employer’s benefit and the employer derives a benefit from the availability of the vehicle, the fact that the employer only rarely makes use of the employee’s personal vehicle should not, in and of itself, defeat the plaintiff’s case,” McKinster explained.

“Here, [Del Rosario’s supervisor] testified that Tamco required Del Rosario to make his car available rather than providing him with a company car in part because the need arose infrequently. Thus, the availability of Del Rosario’s car provided Tamco with both the benefit of insuring that Del Rosario could respond promptly to customer complaints even if no sales engineer was available to drive him to the customer’s site and the benefit of not having to provide him with a company car.”

Justices Barton C. Gaut and Douglas P. Miller joined McKinster in his opinion.

The case is Lobo v. Tamco, 10 S.O.S. 695.


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