Metropolitan News-Enterprise


Thursday, October 9, 2014


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C.A. Upholds Defense Verdict in Crash That Killed Sheriff’s Deputy

Justices Say Evidence Was Sufficient for Jury to Find That Driver Was Not Acting In Scope of Employment




The Fourth District Court of Appeal has upheld a jury verdict absolving a Rancho Cucamonga company of vicarious liability for the death of a San Bernardino County Sheriff’s deputy killed when his motorcycle collided with the car of a company employee who was driving home from work.

Div. Two held that jurors could conclude from the evidence presented at trial that the company did not benefit from the employee having his personal car available at work, so that the employee was, under the “going-and-coming” rule, acting outside the scope of employment while driving home.

In the Sept. 10 opinion by Justice Art McKinster, certified yesterday for publication, the panel rejected the plaintiffs’ argument that a prior Court of Appeal decision in the case required a finding in their favor.

On the prior appeal, Lobo v. Tamco (2010) 182 Cal.App.4th 297, the court said 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.

Fatal Collision

Deputy Sheriff Daniel Lobo was killed in 2005 when Luis Duay Del Rosario—while leaving the premises of 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.

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, according to the plaintiffs’ evidence. 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 McKinster wrote in Tamco 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.

Prior Testimony

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.

He also cited deposition testimony by Del Rosario’s supervisor “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,” and said “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.”

But on retrial, the jury found by special verdict that Del Rosario was acting outside the scope of employment while driving home at the time of the fatal collision. And the evidence, including testimony by the supervisor that varied from his deposition, supported that verdict, McKinster said in the opinion ordered published yesterday.

The justice explained:

“[Supervisor James] Crompton testified that he had realized, when he reviewed his deposition in preparation for the trial, that his deposition testimony was in error when he said that Del Rosario was ‘required’ to use his car if it was necessary, and that Tamco received a benefit from his doing so. He testified that Tamco did not rely on Del Rosario making his car available, and that Tamco did not receive any benefit if Del Rosario did use his own car to visit a customer’s site. On the contrary, if Del Rosario drove separately from the sales engineer who also needed to respond to the customer’s complaint, it doubled the cost to Tamco, because it would have to reimburse both Del Rosario and the sales engineer for their mileage. He said that on the few occasions that he had authorized Del Rosario to use his own car to visit a client, it was at Del Rosario’s request and for his convenience—for example, when it made more sense for Del Rosario to drive directly to a customer’s site from his home rather than driving to Tamco’s offices and then to the site.”

Crompton also testified that the company never asked Del Rosario to use his own car, and that if the sales engineer were not available to drive him to a worksite, the company could have made other arrangements for his transportation, as it did on a particular occasion when he had to take a piece of steel with him and it did not fit in his car.

That testimony, and De Rosario’s, were sufficient for the jury to conclude “that the availability and occasional use of Del Rosario’s car to attend to customer complaints did provide a benefit to Tamco and that it did not provide a benefit to Tamco but rather provided a benefit only to Del Rosario,” the justice wrote.

The case is Lobo v. Tamco, E054523.


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