Metropolitan News-Enterprise


Monday, September 19, 2016


Page 1


C.A. Rejects Claimed Exception to ‘Going-and-Coming’ Rule




A defendant whose employee struck a young pedestrian while driving home from work, in his personal vehicle, was wrongly held responsible for the resulting injuries, the First District Court of Appeal ruled Friday.

Tossing out an $885,000 jury verdict, the court held that the case should never have gone to the jury because there was no substantial evidence to support the plaintiff’s theory that the Culinary Institute of America required Almir Da Fonseca to use his own car while working away from campus.

Justice James Richman authored the opinion for Div. Two.

Leopoldo Jorge Jr., then 14, was one of two people hit by Da Fonseca in the 2010 incident. It occurred while Da Fonseca, a chef instructor at the institute’s Greystone campus in St. Helena, was driving to his home in Sebastopol at the end of the workday.

Jorge sued Da Fonseca and the institute, which he claimed was responsible on the basis of respondeat superior. The institute moved for summary judgment, citing the “going-and-coming” rule, under which an employee driving to or from work is generally regarding as doing so outside the scope of employment, absolving the employer of liability for the employee’s negligent driving.

Motion Denied

Sonoma Superior Court Judge Elliot Daum denied the motion, saying there was evidence—“[h]owever thin”—from which a jury might find that Da Fonseca was within the scope of his employment.

The case was bifurcated, so that liability was tried before damages. The plaintiff presented evidence that his duties included consulting on behalf of the institute and presenting at conferences and other events, some off-campus.

The defense countered with testimony from school officials, who acknowledged that DaFonseca did a good deal of work away from the campus, but said they did not require him to use his personal vehicle to do so.

Adam Busby, DaFonseca’s immediate supervisor, testified:

“It was up to the instructor how they got from point A to point B,” he said. “It wasn’t up to me to decide.  It was up to them.”

If an employee rented a vehicle to travel to a conference, he said, he would be reimbursed. It was undisputed that Da Fonseca had received a number of mileage reimbursements for work-related travel in his personal vehicle.

Exception Claimed

Daum instructed the jury on the going-and-coming rule and the “required vehicle” exception first recognized in Smith v. Workmen’s Comp. App. Bd. (1968) 69 Cal.2d 814 (Smith), a case involving a claim for worker’s compensation benefits when a county social worker was fatally injured in a single-car accident while driving to work.  The high court said the going-and-coming rule should not be applied because the employer required the employee to bring his car to work so that he could visit clients in the field.

Jurors in Jorge’s case found that the employee driver—who had settled out of the case for $30,000—was negligent and that he was acting within the scope of employment. The plaintiff was found not to be negligent.

Richman, writing for the appellate panel, said none of the published appellate opinions applying the required vehicle exception supported the plaintiff’s position.

The drivers in those cases, he explained, were all required to transport themselves to other locations for work and had no other means of transportation available.

“There was no evidence here that Da Fonseca was required to use any car, let alone his own car, to accomplish his work duties during his work day,” the jurist wrote. “Where there is no evidence that the employee was required to have his or her car available during the work day, there is no question for the jury as to the applicability of the required vehicle exception.”

Nor does the fact that Da Fonseca used his personal car to carry his knives and chef’s jackets between the school and home, or to off-campus work commitments, make his commute home work-related, Richman said. “Carrying employer-owned tools of the trade to work does not render an employee’s commute within the course and scope of employment” under the case law, the justice said.

The case is Jorge v. Culinary Institute of America, 16 S.O.S. 4700.


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