Skip to content Court of Appeal Limits Exception To “Going and Coming Rule” To The Benefit Of California Employers


Search Publications

January 2017

Court of Appeal Limits Exception To “Going and Coming Rule” To The Benefit Of California Employers

Leopoldo Jorge, Jr. (Jorge) sued Almir Da Fonseca (Da Fonseca) and appellant Culinary Institute of America (Culinary Institute or Institute) for injuries sustained when he was struck by a car driven by Da Fonseca, a chef instructor employed by the Culinary Institute. Da Fonseca had finished his shift at the Culinary Institute and was driving home in his own car at the time of the accident.  A jury found the Culinary Institute liable for Jorge’s injuries based respondeat superior.

Gordon & Rees Partner Charles Custer and Associate Ryan Birmingham filed motions for summary judgment, directed verdict and, after an adverse verdict, for judgment notwithstanding the verdict on behalf of the Culinary Institute on the ground no evidence existed or was offered that Da Fonseca was acting in the scope of his employment at the time of the accident. More specifically, they argued that the evidence at trial did not support application of the “required vehicle” exception to the “going and coming” rule and so the employer could not be vicariously liable for Da Fonseca’s negligent conduct while he was commuting home from work. The trial court denied the motion. 

On appeal, the Court agreed that no substantial evidence supported a conclusion that Da Fonseca was expressly or impliedly required to drive his private vehicle as a condition of his employment.  In fact, direct evidence established that he was not: the managing director of the Culinary Institute, the supervisor of the Institute’s chef instructors, and Da Fonseca all testified that Da Fonseca was not required to use his private vehicle. As to his on-campus work commitments, Culinary Institute witness testified consistently that how Da Fonseca arrived at work each day and whether he used his car was unknown. Da Fonseca testified that as an alternative to driving, he could have carpooled, been dropped off, or taken public transportation. As to off-campus commitments, use of a personal vehicle was neither requested nor required, as other alternatives were available. Additionally, Da Fonseca confirmed that no one at the Culinary Institute dictated how he was to get to off-campus work commitments.

Plaintiff's counsel filed a Petition for Review with the California Supreme Court which was denied. The ruling assists California employers and insurers of employers in defending scope of employment claims when employees are commuting to and from work.  In order for claimants to take advantage of the “required vehicle” exception, substantial evidence must be offered.

To read the Court's decision, please click here. 

Employment Law

Employment Law
Product & General Liability