Daily Blast March 1, 2017

Last week, the Fourth District Court of Appeal Division Two (Riverside) issued an opinion analyzing the “going and coming” rule, which exempts employers from vicarious liability for the acts of employees commuting to and from work. In Lynn v. Tatitlek Support Services, Inc. (Feb. 22, 2017, E063585) __ Cal.App.5th __, the court held that no exceptions to the going and coming rule applied in the case of a one-time temporary employee who worked long hours and commuted 500 miles to his place of employment. (Slip opn., pp. 2, 22.)

This case arose from a head-on car collision, which resulted in the death of both drivers, Formoli and Mr. Lynn. (Slip opn., pp. 7-8.) The Lynn family sued Formoli’s estate and his employer, Tatitlek Support Services, Inc. (TSSI) for wrongful death. (Id. at p. 8.) TSSI had hired Formoli as a temporary role-player in an immersive military training exercise. (Id. at pp. 3-5.) On the day of the collision, Formoli was returning to his home in Sacramento after participating in a three-and-a-half-day training exercise in Twentynine Palms, 500 miles away. (Id. at p. 7, 22.) TSSI moved for summary judgment, arguing that the going and coming rule precluded vicarious liability. (Id. at pp. 8-9.) The plaintiffs argued that exceptions to the rule should apply because TSSI gained an incidental benefit from Formoli’s abnormally long commute, Formoli was compensated for his travel time, and Formoli’s commute constituted a work-related special risk. (Id. at pp. 9-10.) The trial court granted summary judgment for TSSI. (Id. at p. 10.)

The Court of Appeal affirmed, holding that no exceptions to the going and coming rule applied, thus TSSI was not vicariously liable for the accident. (Slip opn., p. 2.) First, while TSSI benefitted from an expanded labor market, the court held that “a lengthy, one-time, round-trip commute for a temporary job in and of itself is not a sufficient basis for applying the incidental benefit of exception to the going and coming rule.” (Id. at p. 17.) Second, evidence that Formoli was compensated for eight hours of work on the day of the accident was not sufficient to permit an inference that Formoli was compensated for travel. (Id. at p. 21.) Third, evidence that Formoli worked long hours that could be stressful as well as physically and mentally demanding was not enough, by itself, to raise a triable issue that his commute was a work-related special risk. (Id. at pp. 25-26.) The plaintiffs argued that Formoli caused the accident due to work-related fatigue, however, the impetus behind Formoli’s crossing of the center divider was not known. (Id. at p. 24.) Therefore, “there was an insufficient nexus between Formoli’s employment and the accident as a matter of law.” (Id. at p. 26.)

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