WEEKLY LAW RESUME™
 Issue By: Mark Hazelwood

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March 4, 2010

Torts- Employer May Be Liable For Damages Caused By Accident Involving Employee Driving Home In Personal Vehicle

Lobo v. Tamco
Court of Appeal, Fourth District (February 24, 2010)

Under the theory of "respondeat superior", employers are vicariously liable for tortious acts committed by employees during the course and scope of their employment. A general exception applies where the employee is going or coming from work. Under the "going and coming" rule, employees are generally deemed to be outside of the course and scope of employment during their daily commute. California courts have recognized a limitation on the going and coming rule where the use of the employee's car gives some incidental benefit to the employer. This limitation is tested in this case.

Defendant Luis Duay Del Rosario left the premises of his employer, Defendant Tamco, in his personal motor vehicle. As Del Rosario left the Tamco driveway and turned onto a highway, he collided with a motorcycle driven by Daniel Lobo, a San Bernardino County Sheriff. Lobo was killed in the accident.

Lobo's widow and minor children filed two separate wrongful death actions, which were consolidated. Plaintiffs alleged that Del Rosario was acting within the course and scope of his employment by Tamco at the time of the accident. Tamco filed a motion for summary judgment contending that Del Rosario was not acting within the course and scope when he left work in his personal vehicle. As such, Tamco contended that it could not be held vicariously liable. The trial court granted the summary judgment and Plaintiffs appealed. The Fourth District Court of Appeal reversed.

On appeal, Plaintiffs focused on the limitation to the going and coming rule, where an employer gains some incidental benefit by the employee using his personal vehicle. Plaintiffs presented evidence that Tamco manufactured steel bars used in construction. Del Rosario, a metallurgist, was the manager of quality control. On occasion, Del Rosario would visit a client to go over quality control issues. Del Rosario testified at deposition that he had used his personal vehicle approximately 10 times over 16 years to visit client sites. On those occasions, Del Rosario was reimbursed his driving expenses by the company. Del Rosario did keep work equipment in his vehicle in case he was called upon to visit a client site. Based on this evidence, Tamco argued that Tamco received an incidental benefit from Del Rosario's use of his personal vehicle, thereby negating the going and coming rule.

Tamco contended that in all cases where the limitation to the going and coming rule was applied, driving was an "integral" part of the employee's job. Here, Tamco argued that Del Rosario's occasional use of his own car to visit client sites was insufficient to be deemed an integral part of the job. The Court of Appeal disagreed and held that was important was that Tamco relied on Del Rosario to make his personal vehicle available for the employer's benefit. The Court held that Tamco benefited when Del Rosario could promptly respond to customer complaints- even if this was rare. The Court, therefore, reversed the judgment in favor of the Defendants.

COMMENT
This is a harsh decision for employers and could prove to substantially negate the "going and coming" rule in California.

For a copy of the complete decision see: http://www.courtinfo.ca.gov/opinions/documents/E047593.PDF