Lobo v. Tamco, No. E054523 (September 10, 2014): In a recent decision, the California Court of Appeal held that under the “going and coming” rule, an employer was not vicariously liable for an accident caused by an employee’s negligence. The court upheld a jury verdict that found that the employee was not in the scope of employment when the accident occurred, and the availability of the employee’s car at work did not confer some benefit to the employer.

In 2005, Deputy Sheriff Daniel Lobo was fatally injured when an employee of Tamco, Luis Del Rosario, drove out of the company driveway and failed to notice Lobo and two other motorcycle deputies approaching with their lights and sirens activated. Deputy Lobo’s widow and minor children filed wrongful death actions against Del Rosario and Tamco, alleging that Tamco was vicariously liable for the negligent actions of Del Rosario.

Tamco requested dismissal by summary judgment under the going and coming rule, on the grounds the employee was driving home after work and the accident occurred while he was outside the scope of his employment. The trial court granted the dismissal. The plaintiffs appealed and argued that under the “required vehicle” exception, Tamco gained some incidental benefit by Del Rosario using his vehicle at work (Lobo I). Under the required vehicle exception, an employer can be held liable for an employee’s torts occurring during the regular commute if the employer expressly or impliedly required its employee to use his or her personal vehicle for work, the use of which gives some incidental benefit to the employer. The Court of Appeal reversed the trial court’s grant of summary judgment and remanded the case for a jury trial.

At trial, Del Rosario testified that he was required to use his car to visit customer sites in the event that there was a customer complaint. However, Del Rosario’s supervisor testified that although Del Rosario used his own car to visit customers a few times in his 16 years at the company, he was never required to use his own car and the company would have made other arrangements for Del Rosario’s transportation to customer sites. The jury found that Tamco was not vicariously liable as it did not gain a benefit from the availability of Del Rosario’s car. The plaintiffs appealed again.

The Court of Appeal (in Lobo II) upheld the jury verdict. It held that where there is conflicting testimony as to whether the use of an employee’s car provided an incidental benefit to the employer, resolving the conflict is within “the exclusive province of the jury.” The court also noted that its decision in Lobo I “did not preclude the possibility that a jury might conclude that although the availability of Del Rosario’s car conferred some benefit on Tamco, it did not confer a sufficient benefit that Tamco should be vicariously liable for Del Rosario’s negligence.”

According to Carolyn B. Hall, of counsel in the San Francisco office of Ogletree Deakins: “This nearly decade-long litigation serves to highlight for employers what may be a little known ‘going and coming’ rule and its exceptions. The ‘required vehicle’ exception can potentially subject an employer to liability even during what would be considered the employee’s commuting time. In the case of employees who use their personal vehicles in the course and scope of their employment—even infrequently—it is important that employers ensure adequate insurance coverage. For employees who are called upon to drive personal vehicles on a more routine basis, employers may want to implement procedures to confirm acceptable driver licensing records of such employees. Employers are advised to have policies in place setting forth the circumstances as to when use of personal vehicles is expected or required in the course of employment.”

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