County of Los Angeles not Vicariously Liable for its Employee’s Negligence Under the Required Vehicle Exception to the Going and Coming Rule

The Case and Factors Considered

In Newland v. County of Los Angeles (2018) 2018 WL 3017203, ____ Cal.Rptr. ____ (appeal from a judgment and order of the Superior Court of Los Angeles County), a deputy public defender was not acting in the course and scope of his employment with the County of Los Angeles at the time of a vehicle accident to hold the County vicariously liable for a $14,000,000.00 judgment on a personal injury judgment due to the following:

  1. The County employer did not require the employee to drive to or from work on the day of the accident.
  2. The County did not receive any benefit from the employee’s use of his vehicle at the time of the accident.
  3. The County did not come to reasonably rely upon his use of his personal vehicle as an accommodation to the County.
  4. The employee was not expected to take care of work-related emergencies with his personal vehicle.
  5. The employee knew in advance whether or not his daily job duties would involve the use of his personal vehicle.

The analysis of this case addresses employers’ liability under the doctrine of respondeat superior, the going and coming rule, and the required vehicle exception to the going and coming rule.

Factual Overview

Donald Prigo was a deputy public defender for the County of Los Angeles (“the County”). The County did not expressly require its 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. Despite this minimum requirement, Prigo regularly used his personal vehicle for job-related tasks—making court appearances, meeting with clients in jails, viewing crime scenes, to meet with witnesses, to meet with experts, to meet with the coroner, and to meet with his clients’ family members, to name a few examples. Typically, he would leave 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 following. He could not realistically do his job as a deputy public defender without a vehicle, which he would use on average 10 days per month. Occasionally, he would submit a request for mileage reimbursement, and he would know in advance what days he would need to use his personal vehicle for work purposes.

On February 28, 2013, Prigo had six cases on calendar. His clients did not appear in the last two cases. Since he was not in the trial rotation, he did not use his car to drive anywhere that day, and at the end of the day, he left in his car after work to go home. Along the way home he was turning into the post office to deposit his rent check when he hit a car driven by Kevin Vargas. Vargas was forced off the road and injured Plaintiff/Respondent pedestrian Jake Newland. Plaintiff sought to hold the County vicariously liable due to its employee’s negligence and causing Plaintiff’s injuries under the doctrine of respondeat superior.

Jury Instructions

The trial court denied the County’s request for jury instructions as they pertained to vicarious liability. 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 only instruction that the court did give on this issue was one pertaining to vicarious liability: “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.”

Special Verdict Form

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 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 Verdict, Motion, and Appeal

After answering the first question in the affirmative, the jury ultimately ended up awarding Plaintiff nearly $14,000,000.00 in compensatory damages. The County’s motion for judgment notwithstanding the verdict was denied. An appeal followed that resulted in the trial court being directed to enter a new and different order granting the County’s motion for judgment notwithstanding the verdict, with the County to recover its costs on appeal.

Rationale

The court of appeal began with a simple discussion of the rationale behind the doctrine of respondeat superior, which is to hold an employer vicariously liable for its employees torts that are committed while acting in the course and scope of his or her employment. Since it is the employer that benefits from the employee’s conduct, policy goals of the doctrine are to prevent future injuries, to assure compensation to victims, and to spread the losses caused by an enterprise equitably.

To the contrary, the court recited the going and coming rule, which is not considered to be within the course and scope of employment while the employee is commuting to and from work. The employment relationship is suspended during the commute.

One of the exceptions to the going and coming rules is due to the required vehicle exception, which holds an employer vicariously liable during its employee’s commute where the trip involves an incidental benefit to the employer, not common to commute trips by ordinary members of the work force. This court of appeal follows other appellate courts in that travel to and from work is a matter of complete indifference to the employer. The California Supreme Court recognized this exception when the employer requires the employee to bring a car to work when the employer requires the employee to engage in conduct that inures to the benefit of the employer.

This case easily makes its presence in the worker’s compensation environment as well. Injuries were not compensable when they occurred “during a local commute en route 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.”

Conclusion

Applying these factors to the Newland matter, Newland would have had to show (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. Newland was unable to meet this burden, which resulted in the judgment being reversed as to the County. Given the facts of this case, the County was not found to be vicariously liable for Prigo’s conduct. Should the California Supreme court think otherwise, an additional alert will follow in due course.

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