Lynn v. Tatitlek Support Services, Inc.
8 Cal. App. 5th 1096
| Cal. Ct. App. | 2017Background
- TSSI hired temporary "role players" for a Mojave Viper military exercise at Twentynine Palms (Aug 7–11, 2011); duties were physically and mentally demanding but included required rest and sleep rules.
- Abdul Formoli, a Sacramento resident, was hired as a role player, in‑processed Aug 7, worked through Aug 11, and chose to drive his personal car rather than use optional free bus transport TSSI offered from recruitment areas.
- Formoli completed out‑processing around 10:00 a.m. on Aug 11, 2011, and was driving home when he crossed the center line on SR‑247 and caused a fatal head‑on collision; toxicology showed BAC .06; Formoli died at the scene.
- Plaintiffs (Gail and Randy Lynn) sued TSSI under respondeat superior; TSSI moved for summary judgment arguing the going‑and‑coming rule precludes vicarious liability and no exception applies.
- Trial court granted summary judgment, excluding plaintiffs’ expert (Dr. Glass) as speculative; the Court of Appeal affirmed, finding no triable issue that any exception (incidental benefit, travel‑pay, special risk) applied.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the incidental benefit exception to the going‑and‑coming rule applies | TSSI benefited by recruiting from distant labor markets (long commutes) so employer should bear commuting risk | TSSI did not require or rely on employees’ personal vehicles, offered free bus transport, and did not induce Formoli’s personal long commute | No — incidental benefit exception does not apply because Formoli’s personal commute was discretionary and TSSI did not make personal driving a condition or benefit of employment |
| Whether payment of travel time makes commute part of workday (Hinman rule) | Formoli was paid eight hours on last day and thus was paid during the period including travel | TSSI paid eight hours by contract for out‑processing only; TSSI did not pay travel time or expenses and records show no travel pay | No — undisputed evidence shows TSSI did not compensate travel time, so Hinman exception inapplicable |
| Whether the special risk/work‑related fatigue exception applies | Long, grueling shifts (63+ hours) created foreseeable risk of fatigue‑related crash; expert links fatigue to lane departure | TSSI had rest policies, plaintiffs offered no admissible evidence of inadequate sleep or that fatigue proximately caused the crash; expert opinion speculative | No — plaintiffs failed to show fatigue was work‑caused and a proximate, foreseeable cause; expert opinion excluded as speculative |
| Evidentiary basis for expert opinion (Dr. Glass) | Expert opined Formoli was fatigued and fatigue contributed to crash | TSSI objected: opinion speculative, lacked foundation, improperly relied on assumptions | Trial court properly excluded Dr. Glass for lack of foundation and speculation; exclusion supported summary judgment |
Key Cases Cited
- Hinman v. Westinghouse Electric Company, 2 Cal.3d 956 (employer payment of travel time/expenses can make commute part of workday)
- Moradi v. Marsh USA, Inc., 219 Cal.App.4th 886 (summary judgment standard; going‑and‑coming analysis)
- Bussard v. Minimed, Inc., 105 Cal.App.4th 798 (special‑risk/foreseeability test for employer liability)
- Depew v. Crocodile Enterprises, Inc., 63 Cal.App.4th 480 (rejection of special‑risk exception where nexus between work and fatigue‑crash insufficient)
- Blackman v. Great American First Savings Bank, 233 Cal.App.3d 598 (incidental‑benefit exception framing)
- Smith v. Workmen’s Comp. App. Bd., 69 Cal.2d 814 (exceptions to going‑and‑coming rule; travel‑pay precedent)
- Huntsinger v. Glass Containers Corp., 22 Cal.App.3d 803 (ordinary commute context for going‑and‑coming rule)
- Aguilar v. Atlantic Richfield Co., 25 Cal.4th 826 (standards on inferences and summary judgment burden)
- Sargon Enterprises, Inc. v. University of Southern California, 55 Cal.4th 747 (expert opinion admissibility and need for reliable foundation)