Woodland Hills personal injury lawyer Barry P. Goldberg is continually looking for viable resources of recovery for his severely injured clients. One inquiry is always whether the adverse driver was in the scope of employment at the time of the accident in order to access an employer’s potentially larger insurance policy. There are many recognized exceptions which could make an employer responsible even when the accident did not technically occur at the actual time of employment. That is why it is very important to understand the adverse driver’s employment and duties in severe cases.
In a recent case certified for publication the Court of Appeal for the Second District (encompassing Los Angeles), has made it more difficult for injury victims to claim that an employer should be held liable when an accident occurs completely unrelated to work; Newland v. County of Los Angeles (June 18, 2018) (“Newland”). However, because not all districts in California agree with Newland, and because there was a dissenting opinion, the California Supreme Court may have to weigh in on the issue.
Barry P. Goldberg is an Expert on Vicarious Liability Issues.
Barry P. Goldberg has been quoted in several tort and insurance publications on these issues and he has been following the case law closely. In fact, Mr. Goldberg has penned several Articles analyzing the exact cases relied upon by the Court of Appeal in Newland. In Newland, an employee driving home from work on a day that he did not have any job duties outside of the office injured a third party. After a jury trial, the trial court imposed liability on the employer based on evidence that the employee regularly used his personal vehicle for work on other days-one of the recognized exceptions to no liability. The employer contended there was no substantial evidence to support finding that the employee was driving in the course and scope of his employment at the time of the accident, because he was not required to use a personal vehicle that day.
Majority Opinion in Newland v. County of Los Angeles.
In Newland, the majority of the Court agreed 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 vicarious liability to an employer. The Court reasoned that liability may be imposed on an employer for an employee’s tortious conduct while driving to or from work, if at the time of the accident, the employee’s use of a personal vehicle was required by the employer or otherwise provided a benefit to the employer. The evidence showed that the employee in this case was driving a routine commute to and from work on the day of the accident. He was not required to use his personal vehicle for work purposes that day, and his employer did not otherwise benefit from his use of a personal vehicle that day. Therefore, the Court held that the employer was entitled to judgment as a matter of law.
Dissenting Opinion in Newland v. County of Los Angeles.
The dissenting opinion in Newland recognized that the law seems to be unsettled in this area. The Justice pointed out that “[s]ufficiently 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.” (Citing Lobo v. Tamco (2010) 182 Cal.App.4th 297, 302-303.)
The dissenting Justice further pointed out that, even assuming the majority’s analysis of the express or implied requirement justification for applying the vehicle-use exception is sound on the facts here, it is still the case that the jury never reached the question of vicarious liability on a direct or incidental benefit theory of liability. (See, e.g., CACI No. 3725 [“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”], Emphasis added.) There was substantial evidence that would support (but certainly not compel) liability on that theory.
Application of the “Vehicle Use” Exception.
The majority of the Court in Newland found that in order to apply the vehicle use exception to the coming and going rule, the negligent at fault driver had to show that (1) the employer required him to drive his car to and from the workplace at the exact time of the accident, or (2) his use of his car provided a benefit to the employer at the exact time of the accident. A benefit to the employer may be found if, at the time of the accident, he agreed to make his car available, the employer reasonably came to rely on his use of the car, and the employer expected him to make it available. On the limited facts of this case, the Court found there was no evidence to support finding a job requirement or a benefit to the employer on the day of the accident.
The Court noted that there was no evidence to support that employee was required to drive to or from work on the date of the accident. Rather, he 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.
In addition, the Court found there is no evidence to support finding that the employer received any benefit from his use of his car at the time of the accident. A trier of fact could have concluded from the evidence that when he had job duties outside the workplace, he made his car available as an accommodation to the employer, and the employer reasonably came to rely on his use of his vehicle to complete those tasks. There simply was no evidence to support that conclusion.
Serious Injury Cases Still Require a “Deep Dive” into Whether the Employer could be held Liable.
A narrow reading of the Newland case could limit its application essentially to prevent imposing vicarious liability on the at fault driver’s day off. Otherwise, the Newland case really does not change existing California law in this area. On all significant and serious injury cases, an experienced personal injury trial lawyer should sufficiently inquire regarding the at fault driver’s employment at the time of the subject accident. The inquiry should not end with “the driver was off duty” at the time of the accident. It is critical to determine what the driver did for a living and whether he or she used the vehicle in any manner related to employment. If the employer received an “incidental benefit” by having the vehicle available, vicarious liability is still possible, notwithstanding the Newland case.