Jake Newland v. County of Los Angeles

An employee driving home from work on a day that he

did not have any job duties outside of the office injured a

third party. After a jury trial, the trial court imposed

liability on the employer based on evidence that the

employee regularly used his personal vehicle for work on

other days. The employer contends there was no substantial

evidence to support finding that the employee was driving in

the course and scope of his employment at the time of the

accident, because he was not required to use a personal

vehicle that day.

We agree that an employee must be driving a personal

vehicle in the course and scope of his employment at the

time of the accident to extend vicarious liability to an

employer. Liability may be imposed on an employer for an

employee’s tortious conduct while driving to or from work, if

at the time of the accident, the employee’s use of a personal

vehicle was required by the employer or otherwise provided

a benefit to the employer. The evidence showed that the

employee in this case was driving a routine commute to and

from work on the day of the accident. He was not required to

use his personal vehicle for work purposes that day, and his

employer did not otherwise benefit from his use of a personal

vehicle that day. The employer is entitled to judgment as a

matter of law. We reverse the judgment with directions.

2

FACTS

Defendant and appellant County of Los Angeles hired

Donald Prigo as a deputy public defender in the early 1980s.

In February 2013, Prigo lived in Long Beach and performed

felony trial work from his office in the Norwalk Courthouse.

The County does not expressly require deputy public

defenders to provide vehicles to carry out their job duties.

The minimum requirements of Prigo’s job class specification

were to have a valid California class C driver’s license or the

ability to use alternative transportation when needed to

carry out job-related essential functions.

As a trial lawyer, however, Prigo needed to use his

personal vehicle for several job-related tasks. He regularly

made appearances in branch courts in Bellflower, Whittier,

Downey, and downtown Los Angeles for arraignments,

preliminary hearings, and other proceedings. He drove his

car from home or from his office at the Norwalk Courthouse

to attend proceedings at the branch courts, which was the

most frequent use of his car for work purposes. When Prigo

received an assignment at a branch court, he had three to

ten days advance notice of the first hearing date in the

branch court. If he could not make it to an appearance at a

branch court, he could call an attorney assigned to that

branch court to have the matter continued. Trials were

rarely assigned to branch courts and Prigo had not had a

trial in another courthouse since 2006, but he drove to the

branch court if he had a trial there. It was not practical or

3

reasonable to use public transportation to get from the

Norwalk Courthouse to the other courts that he needed to

attend.

Prigo also used his car to drive to different jails as a

regular part of his job. Eighty-five percent of his clients

were in custody in downtown Los Angeles or in Castaic.

Prigo needed to speak with them in person to establish trust

and represent them properly. Public defenders can use

videoconferencing from their offices to interview clients in

custody, which Prigo made use of, but it was not intended to

replace personal contact and a detailed interview with the

client. There are interview rooms available at the Norwalk

Courthouse to meet with clients. When Prigo visited a client

in jail, he typically left his office in Norwalk in the early

afternoon after the morning court calendar. He often drove

directly home. No trains, buses, or public transportation go

to the county jails within a reasonable amount of time.

There was no practical alternative to driving his car.

Throughout his career as a trial lawyer, Prigo also

drove his car to view crime scenes. Visiting a crime scene

helped him to understand the testimony and examine the

witnesses in a case. He would visit a crime scene when he

was preparing for a motion or a trial. He sometimes went to

a crime scene on the way to or from work, but he usually

went during the work day. Typically, he left his office in

Norwalk in the afternoon to visit a crime scene. He might

return to the office if the location was close, but he often

drove directly home.

4

On occasion, Prigo drove his car to the coroner’s office

or to meet witnesses. Witnesses normally came to Prigo’s

office at the courthouse to speak with him. On a few

occasions, he had to drive to visit an expert witness, because

the equipment used by the expert was located at his or her

place of business. Public defenders use their judgment in

retaining, meeting, and preparing expert witnesses. Most

meetings with a client’s family and friends to gather

mitigation information for sentencing took place at Prigo’s

office, but there were a few times that he drove his car to

people’s homes because they could not travel. He could also

apply for a paralegal’s assistance in gathering mitigation

evidence.

Prigo had the authority and discretion to determine

when he needed to drive to a location for work. His

supervisor was aware that he used his car to do his job,

including going to the jails. The public defender’s office

reimburses attorneys for mileage when they travel between

courthouses, but not for commuting to and from their own

office. Prigo had submitted two or three requests for mileage

reimbursement in his entire career. He used his car as a

regular part of his job. If a supervisor wanted to send him

outside of the Norwalk Courthouse, his car was available to

him at work every day that he drove. Public defenders never

had emergency work situations that required the use of a car

to leave the office right away.

Prigo could not realistically do his job in Los Angeles

County without a vehicle. Prigo’s work as a trial lawyer was

5

cyclical and his workload varied, so there were months when

he had an increased need to use his car for work and weeks

when he did not need to use his car for work at all. He used

his car an average of eight to ten days per month for work

purposes. Prigo could use public transportation to commute

on the days that he did not have work-related tasks outside

the office. Prigo spent 95 percent of his time in the Norwalk

Courthouse. Public transportation was never sufficient to do

the job completely. He still needed to use his car to do his

job, such as when he planned to visit a crime scene or client

in jail.

Prigo first used public transportation for his commute

when he lived in Rancho Cucamonga and was assigned to

the public defender’s office in downtown Los Angeles in

1985. He took public transportation to downtown Los

Angeles from 1985 to 1996, including after he became a

Public Defender Grade IV in 1988. He had a heavy caseload

of felony trials and was qualified to work on special

circumstances cases. The number of days per month that he

took the bus varied. He knew in advance when he would

need to use his car for work, so he drove to work on those

days. He drove to work if he was in trial, because he might

need to stay late at the office to do legal research or go

somewhere to look at something that came up during trial.

When he was in trial, he might work 16-hour days. Public

defenders were also expected to attend educational meetings

held downtown on Wednesday nights, so he often drove to

6

work on those days to socialize after the meeting without

missing the last bus.

Prigo was living in Pasadena when he was assigned to

the Norwalk Courthouse in 2006. He took a Metro rail line

from Pasadena and other public transportation to reach the

Norwalk Courthouse. He did not take public transportation

every day, but it was a good option. Prigo still needed to use

his car to perform tasks outside the Norwalk Courthouse.

He knew in advance if he needed his car for work on a

particular day. If he was going to another location, such as a

crime scene, branch court, or jail, he would use his car to

commute to work. He used the Metro system to commute

until he moved to Lakewood.

In 2008, Prigo loaned his car to his son for a semester

of school. A public defender named Mark DiSabatino gave

Prigo a ride to and from work for two or three months. His

brother-in-law lent him a truck on days that Prigo needed a

vehicle. It did not occur often, but Prigo would drive his

brother-in-law to work, then drive himself to the Norwalk

Courthouse. In February 2013, at the time of the accident,

Prigo lived in Long Beach. There was no practical public

transportation from Long Beach to Norwalk. If there had

been reasonable public transportation to get from Long

Beach to Norwalk, he would have used it.

Prigo turned in a mileage request claim to his

supervisor Anthony Patalano seeking reimbursement for six

jail visits in May 2012 in a potential death penalty case.

After Prigo resolved the potential death penalty case in

7

August 2012, his practice slowed down and he did not leave

the office for work purposes other than appearances in

branch courts. He may have visited the jails twice between

August 2012 and the date of the accident in February 2013.

He went to crime scenes a few times between October 2012

and the accident in February 2013. He did not have any

other special circumstances cases prior to the accident.

On February 28, 2013, Prigo had six cases on calendar

in the Norwalk Courthouse, including two pre-trial

conferences that were noted on his personal calendar. Prigo

was preparing for trial, since both cases were set to begin

trial on March 19, 2013, but cases often settled at pre-trial

proceedings. The first matter was scheduled for another pretrial

conference a few days later. One of the cases on

calendar was a probation violation. In another, the client

paid an amount to participate in a diversion program and

the case was dismissed. Prigo’s clients did not appear in the

last two matters that he had on calendar. Prigo was

working on serious felony cases, but he did not have any

capital or special circumstances cases. He was not in the

trial rotation. He did not use his car to drive anywhere

during the work day.

Prigo left in his car after work to go home. A post office

was located approximately an eighth of a mile, or a very long

city block, from the Norwalk Courthouse. Prigo was turning

in to the post office to mail his rent check when he hit a car

driven by Kevin Vargas. Vargas was forced off the road and

injured plaintiff and respondent pedestrian Jake Newland.

8

Prigo returned to work within a few days of the

accident, but his car was not driveable. DiSabatino drove

Prigo to and from work while his car was repaired. Prigo

purchased a new car a few months later.

PROCEDURAL BACKGROUND

On August 12, 2013, Newland filed the operative

complaint for negligence against Prigo, the County, and

Vargas. The trial court bifurcated the issues for trial. After

jury selection, an eight-day trial was held to determine

whether Prigo was expressly or impliedly required to use his

personal vehicle for work purposes.

The trial court denied the County’s request for jury

instructions on vicarious liability, including CACI No. 3700

(introduction to vicarious liability), CACI No. 3701 (essential

elements of tort liability against a principal), and CACI No.

3703 (essential elements of tort liability against a principal

when employment relationship is not in dispute). Each of

the rejected instructions required the jury to find that Prigo

was acting in the course and scope of his employment when

the accident occurred. The County objected to the trial

court’s denial of these instructions.

The County had also requested standard jury

instructions based on CACI No. 3723 (substantial deviation)

and CACI No. 3725 (the vehicle use exception to the goingand-coming

rule). The trial court ruled that a combined

instruction based on CACI Nos. 3723 and 3725 would be

9

given, followed by a special instruction proposed by

Newland. The County objected to the combined instruction

and Newland’s special instruction. At the end of the

presentation of evidence, the trial court granted Newland’s

motion for a directed verdict on the defense of substantial

deviation, and the related instruction on substantial

deviation was deleted.

The sole instruction provided to the jury on vicarious

liability was in the language of CACI No. 3725 as follows:

“In general, an employee is not acting within the scope of

employment while traveling to and from the workplace[.]

But if an employer requires an employee to drive to and from

the workplace so that the vehicle is available for the

employer’s business, then the drive to and from work is

within the scope of employment. The employer’s

requirement may be either express or implied. [¶] . . . [¶]

The drive to and from work may also be within the scope of

employment if the use of the employee’s vehicle provides

some direct or incidental benefit to the employer. There may

be a benefit to the employer if: [¶] One, the employee has

agreed to make the vehicle available as an accommodation to

the employer, and, [¶] two, the employer has reasonably

come to rely on the vehicle’s use and expects the employee to

make it available regularly. [¶] The employee’s agreement

may be either express or implied.”

The County proposed several special verdict forms,

including one which asked, “When the accident occurred on

February 28, 2013, was Defendant Donald Prigo acting

10

within the course and scope of his employment?” The trial

court refused to give any of the County’s special verdict

forms. The court stated that whether Prigo was acting

within the course and scope of his employment at the time

the accident occurred was not an issue in the case. Instead,

the court selected the special verdict form supplied by

Newland. Newland’s form asked simply, “Was Donald Prigo

expressly or impliedly required to use his personal vehicle to

perform his job for Defendant County of Los Angeles?” If the

jury answered no, the form asked, “Did the County of Los

Angeles directly or indirectly benefit from Donald Prigo’s use

of his personal vehicle?” The County objected to Newland’s

special verdict form because it did not include the relevant

time frame or ask the jury to determine whether Prigo

required his car as of February 28, 2013.

The jury answered the first question on the verdict

form in the affirmative: it found that Prigo was required to

use his personal vehicle to perform his job for the County. In

the second phase of the trial, the jury found that Prigo’s

negligence caused the accident and awarded damages to

Newland totaling $13,935,548. On June 23, 2016, the trial

court entered judgment in favor of Newland and against the

County in the amount of $13,935,548.

The County filed a motion for judgment

notwithstanding the verdict on several grounds, including

that there was insufficient evidence to support the vehicle

use exception to the going and coming rule, and the special

verdict form in the first phase of trial failed to dispose of all

11

issues in controversy. The County also filed a motion for a

new trial. The trial court denied both motions. The County

filed a timely notice of appeal from the judgment and the

postjudgment order denying judgment notwithstanding the

verdict. The County filed a separate notice of appeal from a

postjudgment order awarding costs to Newland. The appeals

have been consolidated for all purposes.

DISCUSSION

Standard of Review

“‘The trial court’s power to grant a motion for judgment

notwithstanding the verdict is the same as its power to grant

a directed verdict. (Code Civ. Proc., § 629.) “A motion for

judgment notwithstanding the verdict may be granted only if

it appears from the evidence, viewed in the light most

favorable to the party securing the verdict, that there is no

substantial evidence in support.” [Citations.] On appeal

from the denial of a motion for judgment notwithstanding

the verdict, we determine whether there is any substantial

evidence, contradicted or uncontradicted, supporting the

jury’s verdict. [Citations.] If there is, we must affirm the

denial of the motion. [Citations.]’ (Wolf v. Walt Disney

Pictures & Television (2008) 162 Cal.App.4th 1107, 1138;

accord, Sweatman v. Department of Veterans Affairs (2001)

25 Cal.4th 62, 68 [‘As in the trial court, the standard of

review is whether any substantial evidence—contradicted or

12

uncontradicted—supports the jury’s conclusion.’].) For

evidence to be substantial, it must be of ponderable legal

significance, reasonable, credible, and of solid value. (Kuhn

v. Department of General Services (1994) 22 Cal.App.4th

1627, 1633.) The ‘focus is on the quality, not the quantity, of

the evidence.’ (Toyota Motor Sales U.S.A., Inc. v. Superior

Court (1990) 220 Cal.App.3d 864, 871.) We resolve all

evidentiary conflicts and indulge all reasonable inferences in

support of the judgment. (Leung v. Verdugo Hills Hospital

(2012) 55 Cal.4th 291, 308.)” (Jorge v. Culinary Institute of

America (2016) 3 Cal.App.5th 382, 396 (Jorge).)

Vicarious Liability for Accident During Commute

The County contends there is no evidence that Prigo

was driving his car within the course and scope of his

employment when the accident occurred. We agree. In

order for Prigo’s commute to come within the course and

scope of his employment, the County must have required

him to drive his car or otherwise benefitted from Prigo

having his car available for work purposes that day. There

is no evidence that Prigo was commuting in his car at the

time of the injury because the County required him to have

his car available, or that his commute provided any other

benefit to the County that day. The evidence is insufficient

to support the judgment.

13

A. Rationale for Respondeat Superior

Under the doctrine of respondeat superior, an employer

is vicariously liable for an employee’s tortious conduct within

the scope of employment. (Jorge, supra, 3 Cal.App.5th at

p. 396.) The employer is liable not because it controls the

employee’s actions or has any fault, “‘but because the

employer’s enterprise creates inevitable risks as a part of

doing business. [Citations.]’ [Citation.]” (Halliburton

Energy Services, Inc. v. Department of Transportation (2013)

220 Cal.App.4th 87, 94.) “‘“The losses caused by the torts of

employees, which as a practical matter are sure to occur in

the conduct of the employer’s enterprise, are placed upon

that enterprise itself, as a required cost of doing business.

They are placed upon the employer because, having engaged

in an enterprise which will, on the basis of past experience,

involve harm to others through the torts of employees, and

sought to profit by it, it is just that he, rather than the

innocent injured plaintiff, should bear them; and because he

is better able to absorb them, and to distribute them,

through prices, rates or liability insurance, to the public, and

so to shift them to society, to the community at large.”’

(Hinman v. Westinghouse Elec. Co. (1970) 2 Cal.3d 956, 959–

960 (Hinman), quoting Prosser, Law of Torts (3d ed. 1964)

p. 471; accord, Lisa M. v. Henry Mayo Newhall Memorial

Hospital (1995) 12 Cal.4th 291, 304 [policy goals of the

doctrine are ‘preventing future injuries, assuring

compensation to victims, and spreading the losses caused by

14

an enterprise equitably’]; Farmers Ins. Group v. County of

Santa Clara (1995) 11 Cal.4th 992, 1004 [‘central

justification for respondeat superior’ is that ‘losses fairly

attributable to an enterprise—those which foreseeably result

from the conduct of the enterprise—should be allocated to

the enterprise as a cost of doing business’].)” (Jorge, supra, 3

Cal.App.5th at pp. 396–397.)

B. No Liability for Commute

An employee’s commute to and from the workplace is

generally not considered to be within the course and scope of

employment. “While an employer’s vicarious liability for the

torts of its employees is well established, courts have

recognized that an employee’s commute ‘to and from work is

ordinarily considered outside the scope of employment so

that the employer is not liable for [the employee’s] torts’

committed during the employee’s commute. (Hinman,

supra, 2 Cal.3d at p. 961; Anderson v. Pacific Gas & Electric

Co. (1993) 14 Cal.App.4th 254, 258 (Anderson) [employee is

not acting within the scope of employment when going to or

coming from his or her place of work]; Tryer v. Ojai Valley

School (1992) 9 Cal.App.4th 1476, 1481 (Tryer) [employer is

generally not responsible for torts committed by an employee

who is going to or coming from work].) This rule, commonly

referred to as the ‘going and coming rule,’ is grounded in the

notion that ‘“the employment relationship is ‘suspended’

from the time the employee leaves until he returns [citation],

15

or that in commuting he is not rendering service to his

employer.”’ (Tryer, supra, 9 Cal.App.4th at p. 1481, quoting

Hinman, supra, 2 Cal.3d at p. 961; Baptist v. Robinson

(2006) 143 Cal.App.4th 151, 162 [employee is not ordinarily

rendering a service to the employer while commuting];

Blackman v. Great American First Savings Bank (1991) 233

Cal.App.3d 598, 602 (Blackman) [‘employment relationship

is suspended from the time the employee leaves his place of

work until he returns’].)” (Jorge, supra, 3 Cal.App.5th at

p. 397.)

C. Required Vehicle Exception

There are exceptions to the going and coming rule

which hold an employer liable for an employee’s conduct

during his or her commute. (Hinman, supra, 2 Cal.3d at

p. 962.) Exceptions are made “where the trip involves an

incidental benefit to the employer, not common to commute

trips by ordinary members of the work force.” (Id. at p. 962;

Hinojosa v. Workmen’s Comp. Appeals Bd. (1972) 8 Cal.3d

150, 157 (Hinojosa).) “[T]his means not just any trivial

benefit to the employer, but a benefit ‘sufficient enough to

justify making the employer responsible for the risks

inherent in the travel.’ (Blackman, supra, [223 Cal.App.3d]

at p. 604.)” (Jorge, supra, 3 Cal.App.5th at pp. 397–398.)

The California Supreme Court recognized the required

vehicle exception to the coming and going rule in Smith v.

Workmen’s Comp. App. Bd. (1968) 69 Cal.2d 814 (Smith),

16

holding that an employee is acting in the course of

employment during his or her commute when the employer

requires the employee to bring a car to work. The employee

in Smith was a county social worker who was killed in a car

accident while driving to work. (Id. at p. 815.) The evidence

showed that the social worker was required to have a car

available for client visits on field days and for emergency

visits on regular office days. (Id. at p. 816.) If an employee’s

car was unavailable, the county would provide a car on

request, but the social worker had never requested the use of

a county car. (Ibid.) This evidence compelled finding that

the employer required the employee to bring his car to work

on the morning of the accident. (Ibid.)

The Smith court noted that an employee “‘is

performing service growing out of and incidental to his

employment’ (Lab. Code, § 3600)” under the worker’s

compensation statutes when the employee “engages in

conduct reasonably directed toward the fulfillment of his

employer’s requirements, performed for the benefit and

advantage of the employer.” (Smith, supra, 69 Cal.3d at

pp. 819–820.) The court concluded that a requirement to

provide a car for work purposes limited the going and coming

exclusion. (Id. at p. 820.) The employment relationship

resumes “when the employer requires that the employee

engage in conduct, whether prior to the workday or after it,

whether on the premises of that employer or away from

them, that inures to the benefit of the employer.” (Ibid.)

“[T]he employer instructed [the employee] to have his car

17

available on the job every morning. In driving the car to and

from work, [the employee] carried out this order in a

reasonable and normal manner, acquiesced in by his

employer. Accordingly, even though [the employee’s]

employment contract said nothing about the manner of his

transit to the job, he nevertheless acted within the course of

his employment in thus furnishing his own car.” (Id. at

p. 821.)

Similarly in Hinojosa, supra, 8 Cal.3d 150, the

Supreme Court found the going and coming rule did not bar

recovery, because the employer required employees to

provide vehicles for transportation at work every day.

Hinojosa worked as a farm laborer. (Id. at p. 152.) When

employees finished work at one ranch, the foreman assigned

the workers to another ranch operated by the same

employer. On any particular day, Hinojosa did not know in

which field he would be working or the duration of the work

to be done on that field. (Ibid.) Because of the nature of the

work, employees were required to provide their own vehicles

for transportation between fields during the work day.

(Ibid.) Hinojosa did not own a car, so he paid another

worker for transportation. (Id. at pp. 152–153.) He was

injured in an accident on the commute home. (Id. at p. 153.)

The Supreme Court distilled a formula from the case

law to determine whether the coming and going rule applied

in worker’s compensation cases. Injuries were noncompensable

when they occurred “during a local commute

enroute to a fixed place of business at fixed hours in the

18

absence of special or extraordinary circumstances. The

decisions have thereby excluded the ordinary, local commute

that marks the daily transit of the mass of workers to and

from their jobs; the employment, there, plays no special role

in the requisites of portage except the normal need of the

presence of the person for the performance of the work.”

(Hinojosa, supra, 8 Cal.3d at p. 157.) In contrast were

“extraordinary transits that vary from the norm because the

employer requires a special, different transit, means of

transit, or use of a car, for some particular reason of his own.

When the employer gains that kind of particular advantage,

the job does more than call for routine transport to it; it

plays a different role, bestowing a special benefit upon the

employer by reason of the extraordinary circumstances. The

employer’s special request, his imposition of an unusual

condition, removes the transit from the employee’s choice or

convenience and place it within the ambit of the employer’s

choice or convenience, restoring the employer-employee

relationship.” (Ibid.) In cases where an employee was

expressly or impliedly required to bring a means of

transportation to the job, “‘the obligations of the job reach

out beyond the premises, making the vehicle a mandatory

part of the employment environment, and compel the

employee to submit to the hazards associated with private

motor travel, which otherwise he would have the option of

avoiding. Since this is the theory, it is immaterial whether

the employee is compensated for the expenses of the trip.’ (1

19

Larson, The Law of Workmen’s Compensation [(1968)] §

17.50.)” (Id. at p. 160.)

Based on the facts of Hinojosa, the court held: “[T]he

instant case clearly differs from the normal routine

commute; it is instead the extraordinary situation in which

the job is structured, and dependent upon, transportation

from one place of work to another so that the use of an

instrument of such transportation is a requisite of

employment. The employer could have provided, at his own

expense, company vehicles to transport the workers between

his various farms during their workday. His failure to do so

made it necessary for the workers to supply their own onthe-job

transportation. Thus [Hinojosa] made use of the car

from his residence to the first ranch, and thereafter from

ranch to ranch and finally from ranch to his residence

because the car was an essential requirement of the job; the

presence of the car was requisite to performance of the job;

the worker was impliedly required to bring the car to the job

and to take it from the job. Thus the injury suffered in the

car was covered by the Workmen’s Compensation Act.”

(Hinojosa, supra, 8 Cal.3d at p. 162.) Hinojosa’s injuries as a

passenger in the vehicle were compensable because he was

required to supply a vehicle for work, and employees who are

injured in the same car accident under identical employment

circumstances are not treated differently based on the

ownership of the car. (Id. at p. 162.)

The test for liability under worker’s compensation law,

which requires finding “at the time of the injury, the

20

employee is performing service growing out of and incidental

to his or her employment and is acting within the course of

his or her employment” (Lab. Code, § 3600, subd. (a)(2)), is

not identical to the test for liability under the respondeat

superior doctrine based on “scope of employment.” (Hinman,

supra, 2 Cal.3d at p. 962, fn. 3.) The tests are closely

related, because they both consider the benefit to the

employer and the allocation of risk for industrial injuries.

(Ibid.) Worker’s compensation provisions are construed

liberally, however, to protect employees, and courts have

been generous in finding injured workers entitled to benefits.

(Jorge, supra, 3 Cal.App.5th at pp. 398–399, fn. 7.) Although

California courts look to worker’s compensation cases for

guidance, the scope of employment for imposing vicarious

liability is more restrictive in tort claims based on the

differing policy considerations. (Ibid.)

Courts have applied the required vehicle exception to

hold an employer vicariously liable when the facts show an

employee was required to bring a car to work every day or on

the day of the accident. In Hinman, supra, 2 Cal.3d 956, an

employee’s contract required the employer to pay “carfare”

and travel time under certain circumstances, depending on

the location of the job site. (Id. at p. 959.) The employee

injured a third party on his way home from a job site which

qualified for the payment of travel time and expenses. The

Hinman court reasoned that paying travel time and

expenses allowed the employer to locate its enterprise at a

remote place and enlarge the available labor market, but it

21

also increased the risk of injury during transportation. (Id.

at p. 962.) The court concluded that when travel time is part

of the working day by contract, “the employer should be

treated as such during the travel time, and it follows that so

long as the employee is using the time for the designated

purpose, to return home, the doctrine of respondeat superior

is applicable.” (Ibid.) Since the employee injured the third

party during paid travel time, the employer was vicariously

liable as a matter of law. (Id. at p. 963.)

The required vehicle exception was similarly applied in

Huntsinger v. Glass Containers Corp. (1972) 22 Cal.App.3d

803 (Huntsinger), when an employee was required to bring a

car to work every day to have it available for work purposes.

Service representative Edward Fell had daily contact with

customers “not only by telephone but in person at the

customers’ plants as the need arose. Thus, Fell performed

his duties both in the company office and in the field. Many

of his field trips were unplanned and unpredicted. He was

not required to punch a timeclock at the office, nor was he

required to sign in or out.” (Id. at p. 806.) On the day of the

accident, Fell drove his car from his office to a customer’s

plant and back to the office. While driving home from the

office later that day, he killed a motorcyclist. The court

reasoned that “ordinary members of [an employer’s] work

force would not be required to use their vehicles in company

business and would not, therefore, be required to drive their

vehicles to and from work. The means by which they travel

to and from work is a matter of complete indifference to [the

22

employer].” (Id. at p. 810.) When an employer requires an

employee to have a personal vehicle available at work,

however, the employee’s commute to and from the workplace

in that vehicle is “incidentally beneficial to [the employer] in

a manner not common to commute trips by ordinary

members of its work force. In other words, when a business

enterprise requires an employee to drive to and from its

office in order to have his vehicle available for company

business during the day, accidents on the way to or from the

office are statistically certain to occur eventually, and, the

business enterprise having required the driving to and from

work, the risk of such accidents are risks incident to the

business enterprise.” (Ibid.) The appellate court concluded

there was substantial evidence from which a jury could find

that “Fell was acting within the scope of his employment at

the time of the accident.” (Ibid.)

The required vehicle exception may apply when an

employee is required to bring a car daily to have it available

for work, even if the employee rarely has to use the car for

work purposes. In Lobo v. Tamco (2010) 182 Cal.App.4th

297 (Lobo I), the appellate court reversed a summary

judgment in favor of employer Tamco, concluding there was

a triable issue of material fact as to whether the required

vehicle exception applied. Tamco employee Luis Duay Del

Rosario was commuting home when he killed a deputy

sheriff. (Id. at pp. 299, 301.) The plaintiff presented

evidence that Del Rosario’s job description required him to

answer customer complaints, and if necessary, to visit

23

customer sites. (Id. at pp. 301–302.) Tamco did not provide

a company car. Del Rosario usually rode in a sales

engineer’s car to a customer site, but he occasionally used

his own car if no sales engineer was available. (Id. at

p. 302.) During the 16 years that he worked at Tamco, he

used his own car to visit customer sites no more than 10

times and had been reimbursed for expenses. (Ibid.) Del

Rosario was on his way home when he left Tamco on the day

of the accident, but he would have used his car to visit a

customer site if he had been asked. (Ibid.)

The Lobo I court found the evidence “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.” (Lobo I, supra, 182

Cal.App.4th at p. 302.) The frequency of the employee’s use

of the personal vehicle was not determinative. Instead, the

issue depended on “whether the employer expressly or

implicitly required the employee to make the vehicle

available or has reasonably come to expect that the vehicle

will be available for work purposes and whether the

employer derived a benefit from the availability of the

vehicle. [Citations.] If the employer requires or reasonably

relies upon the employee to make his personal vehicle

available to use for the employer’s benefit and the employer

derives a benefit from the availability of the vehicle, the fact

that the employer only rarely makes use of the employee’s

personal vehicle should not, in and of itself, defeat the

24

plaintiff’s case. Here, [Del Rosario’s supervisor] testified

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. Thus, the availability

of Del Rosario’s car provided Tamco with both the benefit of

insuring that Del Rosario could respond promptly to

customer complaints even if no sales engineer was available

to drive him to the customer’s site and the benefit of not

having to provide him with a company car. Based on this

evidence, a reasonable trier of fact could find that the

‘required-vehicle’ exception does apply.” (Id. at p. 303.)1

Courts have declined to apply the required vehicle

exception when evidence showed the employee was not

required to drive a personal vehicle to work on the date of

the accident, even when the employee had used the vehicle

for work purposes at other times. In Ducey v. Argo Sales Co.

1 We note that on remand, the jury found the required

vehicle exception did not apply. (Lobo v. Tamco (2014) 230

Cal.App.4th 438, 440–441 (Lobo II).) Del Rosario’s

supervisor had stated in deposition testimony that Del

Rosario was required to make his personal car available to

visit customer sites whenever the need arose, which was

sufficient to create a triable issue of fact in Lobo I. (Id. at p.

444.) At trial, the supervisor stated his deposition testimony

was in error. Tamco did not rely on Del Rosario making his

car available and did not receive any benefit if Del Rosario

used his own car to visit a customer’s site. (Id. at pp. 444–

445.) The Lobo II court found substantial evidence

supported the judgment in favor of Tamco. (Id. at p. 441.)

25



(1979) 25 Cal.3d 707, the Supreme Court found employee

Dolores Glass was not required to use her personal vehicle

as a condition of her employment, and therefore, was not

acting in the course and scope of her employment at the time

that she was involved in a car accident. (Id. at p. 721.)

Glass cleaned model homes in San Jose, Alameda, and

Union City. She drove from her home to the model homes,

which were up to 45 miles away, several days per week.

Glass was returning home from cleaning a model home when

she was involved in an accident. The Supreme Court

concluded, “The evidence does not establish as a matter of

law that the company required Glass, as a condition of her

employment, to commute to work in her personal car. The

job was not one that embraced driving, and Glass was not

required to use her vehicle for field work. Although there

was evidence that she occasionally ran errands for her

employer, these trips were not conclusively shown to be a

condition of her employment. The jury could reasonably

have believed that Glass was acting as a volunteer in

running occasional errands for replacement items. She was

not engaged in such an errand at the time of the accident.

There is no evidence that Glass was required to go from

location to location during the day. [Citation.]” (Id. at

p. 723.)

In Jorge, supra, 3 Cal.App.5th 382, the appellate court

refused to impose liability on an employer for an accident

that occurred during an employee’s commute home from his

regular work duties, even though there was evidence that

26

the employee frequently drove his personal vehicle in

connection with extraordinary work duties. In the trial

court, the jury found employee Almir Da Fonseca to be

acting in the scope of his employment for the Culinary

Institute of America when he struck pedestrian Jorge on his

drive home. (Id. at p. 387.) In reversing the judgment, the

appellate court acknowledged extensive evidence that Da

Fonseca drove his personal vehicle to and from off-campus

commitments, but the court declined to hold the Institute

vicariously liable for an accident that occurred when he was

simply commuting from his regular work site. (Id. at

pp. 402–403.) Da Fonseca’s primary job duty as a chef

instructor for the Institute was to teach courses. (Id. at

p. 388.) He drove his personal car to work at the Institute,

but he could have carpooled, gotten a ride, or taken public

transportation. (Id. at p. 389.) In addition to regular

classes, Da Fonseca taught specialized classes. Chef

instructors could assist with events, conferences, and

retreats. The instructors who could travel, including Da

Fonseca, provided consulting services. They provided

consultation services at the Institute or the client’s business.

In addition, Da Fonseca conducted research in Brazil for

several weeks. The Institute paid his salary while he was in

Brazil and promoted his findings.

The Institute paid for Da Fonseca’s travel time when a

trip involved a substantial amount of travel, and paid for

mileage when he drove to work locations away from the

Institute. (Jorge, supra, 3 Cal.App.5th at p. 392.) For

27

consulting locally, a chef instructor could rent a car, take

public transportation, carpool, or take a personal vehicle.

(Id. at p. 392–393.) If the travel required taking a flight, Da

Fonseca drove to the airport or got a ride from his wife. Da

Fonseca used his car on many occasions to get to jobs away

from the Institute. (Id. at p. 393.) The Institute also

provided jackets and paid for dry cleaning at a particular dry

cleaner. (Id. at 395.) On the day of the accident in Jorge, Da

Fonseca drove to the Institute, taught classes, and drove

home with a few dirty chef’s jackets and a set of knives in

the car. (Id. at p. 388.) He did not intend to go to the dry

cleaner that day.

Based on this evidence, the Jorge court found that “Da

Fonseca did not need a car for any purpose on the days he

fulfilled his regular chef instructor duties at the St. Helena

campus. He testified that he commuted from home to the

campus and back in his car as a matter of convenience, but

he could have taken public transportation, carpooled, or been

dropped off.” (Jorge, supra, 3 Cal.App.5th at p. 402.)

“[E]ven if there were substantial evidence that Da Fonseca

was impliedly required to drive his car to off-campus events

or that he agreed to make his car available for off-campus

events as an accommodation to the Culinary Institute and

the Institute came to rely on it—which there was not—there

is no authority holding that such evidence took Da Fonseca’s

ordinary commute to and from the St. Helena campus

outside the going and coming rule. In short, the accident

here occurred when Da Fonseca was simply commuting

28

home from a day of performing his regular duties as a chef

instructor at the St. Helena campus, a commute that lacked

any imaginable connection to the performance of his duties

at the Culinary Institute.” (Id. at p. 406.)

D. Application of the Vehicle Use Exception

In order to apply the vehicle use exception to the

coming and going rule in this case, Newland had to show

that (1) the County required Prigo to drive his car to and

from the workplace at the time of the accident, or (2) Prigo’s

use of his car provided a benefit to the County at the time of

the accident. A benefit to the County may be found if at the

time of the accident, Prigo agreed to make his car available,

the County reasonably came to rely on Prigo’s use of the car,

and the County expected Prigo to make it available. There

was no evidence in this case to support finding a job

requirement or a benefit to the County on the day of the

accident.

First, there was no evidence to support that Prigo was

required to drive to or from work on the date of the accident.

Prigo was required to drive his car to perform several of his

job duties outside the office, including appearances in branch

courts, visits to the jails, viewing crime scenes and meeting

witnesses. However, he did not have to perform these duties

every day. He knew in advance when he had tasks outside

the workplace for which he needed his car. When he had

reasonable alternatives to driving and did not have tasks

29

scheduled outside the workplace, he used public

transportation to commute to work. If reasonable public

transportation had been available from his home in Long

Beach, he would have used it. He did not have any job

duties outside the workplace scheduled for the day of the

accident, and he did not use his car for work purposes that

day. Prigo never had emergency situations that required the

use of his car during the day for work, except when he was in

trial. In short, he did not need his car for work purposes on

the day of the accident. Prigo was driving a normal, routine

commute at the time of the accident from a fixed place of

business to home. (Hinojosa, supra, 8 Cal.3d at p. 157.) He

could have carpooled, been dropped off, or taken public

transportation if it were available. Prigo’s conduct in driving

to and from work on the day of the accident was not

“reasonably directed toward the fulfillment of his employer’s

requirements” or “performed for the benefit and advantage

of the employer.” (Smith, supra, 69 Cal.2d at pp. 819–820.)

It was not an extraordinary situation in which his work

depended upon transportation from one place of work to

another. There was no evidence to support finding that the

County directly or indirectly required Prigo to drive to work

on the day of the accident in order to have his car available

for the County’s business.

Second, Newland contends that the case should be

remanded to consider whether Prigo’s use of his car provided

a direct or incidental benefit to the County. There is no

evidence, however, to support finding that the County

30

received any benefit from Prigo’s use of his car at the time of

the accident. A trier of fact could certainly conclude from the

evidence that when Prigo had job duties outside the

workplace, he made his car available as an accommodation

to the County, and the County reasonably came to rely on

Prigo’s use of his vehicle to complete those tasks. There was

no evidence, however, that the County relied on or expected

Prigo to make his car available on days that he did not have

outside tasks. In fact, the evidence was that Prigo

commuted to work for years by bus, Metro train, and carpool

on days that he did not have any duties outside the

workplace. When Prigo drove his car, it was available to him

for work purposes. But Prigo had discretion to determine

when he needed to drive to a location for work, and he knew

in advance when he needed a car for work purposes. He did

not have emergencies that required him to immediately

perform job duties outside the workplace, and there was no

evidence that he had ever been directed to immediately

perform a task. There is no evidence to support finding that

the County received a benefit from the availability of Prigo’s

car on the day of the accident. Since Prigo was not required

to drive to work on the day of the accident, and his use of his

car that day did not otherwise provide a benefit to the

County, there was no evidence to support finding that Prigo

was driving in the course and scope of his employment when

he injured Newland.

The facts of Smith, Hinojosa, Hinman, Huntsinger, and

Lobo I are distinguishable, because in each of those cases,

31

the employee was required to drive to work on the day of the

accident or was providing a benefit to the employer every

time that the employee had a car available at work. In

contrast, Prigo was not required to drive his car every day or

on the day of the accident, and his use of his car that day did

not provide a benefit to the County.

Our conclusion that an employee must be driving in

the course and scope of employment at the time of the

accident for the vehicle use exception to apply is supported

by the language of the worker’s compensation statute from

which it was derived in Smith. Labor Code section 3600,

subdivision (a)(1) provides that an employee must have been

acting within the course of his or her employment “at the

time of the injury” to be entitled to compensation. CACI

instructions on vicarious liability and the tort liability of a

principal also require finding an employee was acting in the

course and scope of employment when the accident occurred.

(CACI No. 3700 [introduction to vicarious liability]; CACI

No. 3701 [essential elements of tort liability against a

principal]; CACI No. 3703 [essential elements of tort liability

against a principal when employment relationship is not in

dispute].)

The policy factors underlying the doctrine of

respondeat superior do not dictate its application in this

case. “Those policy factors are ‘(1) to prevent recurrence of

the tortious conduct; (2) to give greater assurance of

compensation for the victim; and (3) to ensure that the

victim’s losses will be equitably borne by those who benefit

32

from the enterprise that gave rise to the injury.’ [Citation.]

These factors do not constitute the legal standard for

respondeat superior liability, but they provide guidance to

the courts in considering whether the doctrine should be

applied. [Citation.]” (Kephart v. Genuity, Inc. (2006) 136

Cal.App.4th 280, 296 (Kephart).)

Holding the County liable on the facts of this case

would not prevent recurrence of the tortious conduct. For

example, if the County provided vehicles for public defenders

to use during the workday for their duties outside the office,

it would not reduce the occurrence of this type of accident,

because Prigo did not require a vehicle at work on the day of

the accident, he did not have emergencies at work that

required the use of a vehicle immediately, and his commute

that day was not related to his work duties outside the office.

He drove to the Norwalk Courthouse on the day of the

accident because he did not have any reasonable public

transportation options from Long Beach.

“From the perspective of a plaintiff, imposition of

vicarious liability would always serve the policy of giving

greater assurance of compensation to the victim. But

respondeat superior liability is not ‘merely a legal artifice

invoked to reach a deep pocket or that it is based on an

elaborate theory of optimal resource allocation.’ (Alma W. v.

Oakland Unified School Dist. (1981) 123 Cal.App.3d 133,

143–144.) The second and third policy factors are

inextricably bound together (Le Elder v. Rice (1994) 21

Cal.App.4th 1604, 1610; Alma W. v. Oakland Unified School

33

Dist., supra, 123 Cal.App.3d at pp. 143–144) and vicarious

liability is invoked to provide greater assurance of

compensation to victims in circumstances where it is

equitable to shift losses to the employer because the

employer benefits from the injury-producing activity and

such losses are, as a practical matter, sure to occur from the

conduct of the enterprise. (Le Elder v. Rice, supra, 21

Cal.App.4th at p. 1610; Alma W. v. Oakland Unified School

Dist., supra, 123 Cal.App.3d at p. 144.)” (Kephart, supra,

136 Cal.App.4th at p. 297.)

Prigo’s accident during his commute on a day that he

did not need his car for work purposes was no more likely to

occur from the County’s enterprise than other fixed places of

business in the conduct of their enterprise. The County did

not derive any benefit from Prigo’s conduct at the time of the

accident. Public policy does not support imposing liability on

the County for the tortious conduct of an employee who was

not driving in the course and scope of his employment at the

time of the accident.

There was no evidence that Prigo required a vehicle for

work on the day of the accident, and no evidence that the

County received any direct or incidental benefit from Prigo

driving to and from work that day. It was error to deny the

motion for judgment notwithstanding the verdict, and the

judgment must be reversed.

The judgment and the order denying the County’s

motion for judgment notwithstanding the verdict are

reversed. The trial court is directed to enter a new and

different order granting the motion for judgment

notwithstanding the verdict. Respondent County of Los

Angeles is awarded its costs on appeal.