Lead Opinion
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
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 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
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.
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 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
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
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 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
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 pre-trial 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
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
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 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 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.
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)
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
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,
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
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,
The California Supreme Court recognized the required vehicle exception to the coming and going rule in Smith v. Workmen's Comp. App. Bd. (1968)
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.2d at pp. 819-820,
Similarly in Hinojosa, supra,
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 non-compensable when they occurred "during a local commute enroute to a fixed place of business at fixed hours in the 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 ,
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 on-the-job transportation. Thus [ Hinojosa ] made use of the car from his residence to the first ranch, and thereafter from ranch
The test for liability under worker's compensation law, which requires finding "at the time of the injury, the 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,
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 ,
The required vehicle exception was similarly applied in Huntsinger v. Glass Containers Corp. (1972)
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)
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 ,
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. (1979)
In Jorge , supra ,
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 ,
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,
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
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 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 ,
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
The facts of Smith , Hinojosa , Hinman , Huntsinger , and Lobo I are distinguishable, because in each of those cases, 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
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)
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.
DISPOSITION
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.
I concur:
KIM, J.
Notes
We note that on remand, the jury found the required vehicle exception did not apply. (Lobo v. Tamco (2014)
Judge of the Los Angeles Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.
Dissenting Opinion
Sufficiently regular use of a personal vehicle for travel to perform employment duties, where it confers a substantial incidental benefit on an employer, can properly support application of the vehicle-use exception even if the vehicle was not required for such duties "at the time of the accident," as the majority today holds. ( Lobo v. Tamco (2010)