Lobo V. Tamco

  • Fourth District
  • Filed 9/10/14 certified for partial publication 10/8/14
  • Employer Vicarious Liability

In Lobo v. Tamco (2010) 182 Cal.App.4th 297 (Lobo I), the court reversed a summary judgment in favor of the defendant, Tamco, and remanded the matter for further proceedings in the trial court. Trial was held solely on the issue of Tamco’s vicarious liability for the negligence of its employee, Luis Del Rosario. The jury found in favor of Tamco. Plaintiffs, the survivors of a deputy sheriff killed in a vehicular collision with Del Rosario’s car as he left Tamco’s premises, contend that based on the legal principles enunciated in Lobo I, the evidence adduced at trial compels a finding that Del Rosario was acting within the scope of his employment when the accident occurred. They also argue that the trial court erred in refusing a requested jury instruction. The Court in this opinion affirmed the trial court judgmemt.

Del Rosario was leaving Tamco’s premises. As he drove his car out of the driveway and onto Arrow Highway, he failed to notice three motorcycle deputies approaching with lights and sirens activated. Deputy Lobo was unable to avoid colliding with Del Rosario’s car and suffered fatal injuries.

Tamco filed a motion for summary judgment or summary adjudication of issues, contending that the evidence established as a matter of law that Tamco was not vicariously liable for Deputy Lobo’s death, in that Del Rosario was not acting within the course and scope of his employment, but was merely leaving work at the end of his workday, intending to go home, and was driving his personal vehicle. The trial court granted summary judgment.


“Under the theory of respondeat superior, employers are vicariously liable for tortious acts committed by employees during the course and scope of their employment. However, under the ‘going and coming’ rule, employers are generally exempt from liability for tortious acts committed by employees while on their way to and from work because employees are said to be outside of the course and scope of employment during their daily commute. A well-known exception to the going-and-coming rule arises where the use of the car gives some incidental benefit to the employer. Thus, the key inquiry is whether there is an incidental benefit derived by the employer. This exception to the going and coming rule, carved out by this court in Huntsinger v. Glass Containers Corp. (1972) 22 Cal.App.3d, 803, 807, has been referred to as the ‘required-vehicle’ exception. The exception can apply if the use of a personally owned vehicle is either an express or implied condition of employment, or if the employee has agreed, expressly or implicitly, to make the vehicle available as an accommodation to the employer and the employer has ‘reasonably come to reply upon its use and [to] expect the employee to make the vehicle available on a regular basis while still not requiring it as a condition of employment.'”

“The modern view of the basis for respondeat superior is that an employer is responsible for injuries resulting from “‘risks that may fairly be regarded as typical of or broadly incidental to the enterprise [the employer] has undertaken.'” (Hinman v. Westinghouse Elec. Co. (1970) 2 Cal.3d 956, 960 (Hinman).) Accordingly, although we held that infrequency of the use of the vehicle “should not, in and of itself, defeat the plaintiff’s case” (Lobo I, supra, 182 Cal.App.4th at p. 303, italics added), the trier of fact remains free to determine in a particular case that the employee’s use of his or her vehicle was too infrequent to confer a sufficient benefit to the employer so as to make it reasonable to require the employer to bear the cost of the employee’s negligence in operating the vehicle. This is particularly true in the absence of an express requirement that the employee make his or her vehicle available for the employer’s benefit or evidence that the employer actually relied on the availability of the employee’s car to further the employer’s purposes.”