Jorge v. Culinary Institute of America
207 Cal. Rptr. 3d 586
Cal. Ct. App.2016Background
- On Feb 10, 2010, chef instructor Almir Da Fonseca drove home from his shift at the Culinary Institute’s Greystone campus and struck pedestrian Leopoldo Jorge, Jr.; Jorge sued Da Fonseca and added the Culinary Institute on a respondeat superior theory.
- At trial the jury found Da Fonseca negligent and, on the required-vehicle exception to the going-and-coming rule, found he was acting within the scope of employment; the jury awarded $885,083 against the Institute after Jorge settled with Da Fonseca.
- The Culinary Institute moved for judgment notwithstanding the verdict (JNOV), arguing no substantial evidence supported application of the required-vehicle exception because the Institute neither required nor directed use of personal vehicles for on-campus duties.
- Trial evidence showed Da Fonseca used his personal car to commute and to travel to some off-campus consulting and conferences (and was sometimes reimbursed for mileage), but the Institute did not require personal vehicles, provided vans for student field trips, and did not control how instructors traveled to off-campus assignments.
- The Institute also provided chef jackets and did not require knives, though instructors commonly used personal knives; Da Fonseca sometimes left jackets or knives in his car but was not en route to the cleaner at the time of the accident.
- The Court of Appeal reversed the judgment and ordered the trial court to grant JNOV, concluding no substantial evidence supported that Da Fonseca was required to have his vehicle available during the workday such that the required-vehicle exception applied.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the Culinary Institute is vicariously liable for Da Fonseca’s commute accident under respondeat superior | Jorge: the required-vehicle exception applies because Da Fonseca routinely used his car for off-campus work, submitted mileage reimbursement, and transported work tools, implying the Institute required or relied on his car | Institute: Da Fonseca was commuting after on-campus work; the Institute did not require personal vehicles, did not control travel, and alternates (vans, public transit) were available | Reversed: no substantial evidence the Institute required or reasonably relied on Da Fonseca’s car during the workday; going-and-coming rule bars liability |
| Whether transporting personal tools/jackets transforms commute into scope of employment | Jorge: carrying chef knives and jackets served employer’s benefit and connected commute to work | Institute: transporting ordinary tools and soiled jackets is common and incidental to commuting and does not change scope absent special transport or increased risk | Held for Institute: mere carriage of tools/jackets without special transport requirement or increased risk insufficient to displace the going-and-coming rule |
| Whether reimbursement for some travel time/mileage supports required-vehicle inference | Jorge: reimbursement and occasional paid travel indicate employer expectation of vehicle availability | Institute: reimbursement for off-campus travel does not prove a requirement to have vehicle available during regular commute or for on-campus days | Held for Institute: isolated reimbursement for off-campus trips does not establish implied requirement for daily vehicle availability |
| Whether frequent off-campus assignments turn ordinary commute into employer benefit | Jorge: extensive off-campus consulting makes vehicle integral to job, so commute risks are employer’s | Institute: off-campus travel was voluntary/assignable, alternatives existed, and on-campus duties did not require vehicle | Held for Institute: off-campus travel frequency alone is insufficient; required-vehicle exception requires that vehicle availability be necessary or required during the workday |
Key Cases Cited
- Smith v. Workmen’s Comp. App. Bd., 69 Cal.2d 814 (recognizing required-vehicle exception where employee was required to furnish car for field work)
- Hinojosa v. Workmen’s Comp. Appeals Bd., 8 Cal.3d 150 (required-vehicle exception applies where employee must provide transport between work sites)
- Huntsinger v. Glass Containers Corp., 22 Cal.App.3d 803 (applies required-vehicle exception in tort context when vehicle use is an implied or express condition of employment)
- Ducey v. Argo Sales Co., 25 Cal.3d 707 (refused to apply exception where employee’s use of car was occasional and not required)
- Hinman v. Westinghouse Elec. Co., 2 Cal.3d 956 (explains going-and-coming rule and policy basis for respondeat superior)
- Lobo v. Tamco, 182 Cal.App.4th 297 (required-vehicle exception may be a jury question but depends on evidence employer required vehicle availability)
- Anderson v. Pacific Gas & Electric Co., 14 Cal.App.4th 254 (remote or variable work locations do not automatically make commute within scope of employment)
- Wilson v. Workers’ Comp. Appeals Bd., 16 Cal.3d 181 (transporting ordinary work materials does not convert commute into course of employment absent special transport or increased risk)