Court Of Appeal Declines To Extend Liability Under “Going And Coming” Rule Where Employee Had Lengthy Commute Home From Jobsite But Had Option To Use Employer-Provided Transportation

In Flynn v. Tatitlek Support Services, Inc. (2017) 8 Cal.App.5th 1096, the Court of Appeal affirmed a summary judgment in favor of Tatitlek Support Services, Inc. (“TSSI”) in a wrongful death action on the grounds plaintiffs failed to present evidence supporting multiple exceptions to the “going and coming” rule. The sole issue on appeal was whether TSSI’s temporary employee, Abdul Formoli (“Formoli”), was acting within the scope of his employment when he caused a fatal cross-over automobile collision, killing himself and the other driver, on his way home after completing his job assignment.
The United States Marine Corps hired TSSI to provide realistic military exercises at the Marine Corp military base located at Twentynine Palms. TSSI recreated role players from Afghan communities located in Fremont, CA and San Diego, CA, and Phoenix, AZ. The training missions lasted up to 10 days, with work hours between 10 and 19 hours per day. The role players were on their feet for long periods of time, and the exercises were physically strenuous, caused fatigue, and were stressful. The role players slept a minimum of five hours per day, but were provided significant periods of downtime during which they could rest and sleep.
TSSI provided role players free bus transportation from Freemont, San Diego, and Phoenix, but allowed them to drive themselves to/from the jobsite. TSSi provided the bus service so the role players would arrive on time, not to ensure they had safe transportation to the base. TSSI did not pay the role players, like Formoli, who drove themselves for their travel time to/from the base or reimburse them for their transportation expenses.
Formoli was “in-processed” on August 7, 2011, and “out-processed” at approximately 10:00 a.m. on August 11, 2011. Formoli’s mission ended that morning at around 7:00 a.m. Pursuant to the employment contract, the role players were paid eight hours on the day they were out-processed, regardless of the hours actually worked. While driving home to Sacramento, Formoli caused a head-on collision at 2:25 p.m., after inexplicably crossing over into oncoming traffic.
On appeal, the Court analyzed the “going and coming” rule, which exempts employers from vicarious liability for the acts of employees commuting to and from work. Plaintiffs argued the “going and coming” rule did not apply based on the following exceptions to the rule: 1) extraordinary-commute incidental benefit exception; 2) compensated travel-time exception; and 3) special risk exception/work-related special risk doctrine.
Extraordinary-Commute Incidental Benefit Exception
Plaintiffs argued TSSI was vicariously liable for Formoli’s negligent acts even though the accident happened after he was “out-processed” and was driving home. Plaintiffs contended the “going and coming” rule did not apply under the incidental benefit exception because TSSI benefited from Formoli commuting unusually long distances to the jobsite.
The Court of Appeals disagreed, concluding there was no evidence Formoli’s use of a personal vehicle was a condition of employment or that Formoli agreed to make his personal vehicle available as an accommodation to TSSI. In addition, TSSI did not compensate Formoli for his travel time or expenses; did not require him to use his personal vehicle to perform his job responsibilities; and did not require Formoli to drive to or from the jobsite. Formoli had the option of using TSSI-provided bus services and had the discretion of when, where, and how to commute to the jobsite. Thus, the Court of Appeal concluded it was the role player’s personal actions in driving for his own benefit, and not for defendant’s, which caused the accident.
Compensated Travel-Time Exception

<br?Courts have exempted from the “going and coming” rule in those cases in which the employer and employee have entered into an employment contract in which the employer agrees to pay the employee for travel time and expenses associated with commuting. Plaintiffs argued there was evidence Formoli was paid for eight hours of work on the day of the incident, thus he was paid for his travel time after he left the base. The Court of Appeal found it was undisputed that, although TSSI paid Formoli for eight hours of work on the date of the incident, this did not reflect the actual time he worked that day. More importantly, the Court found there was no evidence TSSI paid Formoli for his travel time or expenses.

Work-Related, Special Risk Exception
Plaintiffs argued a triable issue of fact existed as to whether the work-related, special risk exception to the “going and coming” rule applied. Plaintiff contended when Formoli left the base the morning before the accident, he was exhausted and sleep-deprived from working as a role player.
The Court of Appeal held plaintiff did not provide evidence there was a foreseeable risk of third party injury from a car accident created by Formoli’s employment. Plaintiff failed to provided evidence Formoli’s fatigue from working as a role player proximately caused the fatal accident. Here, TSSI took measures to ensure role players had sufficient rest and uninterrupted sleep. There was no evidence as to how long Formoli slept the night before the accident, no evidence he was unfit to drive because of fatigue, and no evidence fatigue from his employment conditions proximately caused the accident.
Lynn v. Tatitlek provides an excellent analysis of vicarious liability, the “going and coming” rule, and its many exceptions. The “going and coming” rule is a powerful tool for employers, especially those who have employees commute long distances to a jobsite. However, Lynn v. Tatitlek makes clear the “going and coming” rule and its exceptions are a case-by-case determination and fact dependent.
ABOUT THE AUTHOR: Kevin Rogers is an associate at Tyson & Mendes LLP. He specializes in general liability, professional liability, and business litigation. Contact Kevin at (858) 263-4063 or