Lynn v. Tatitlek Support Services, Inc. ( 2017 )

Filed 2/22/17
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION TWO
GAIL M. LYNN, Individually and as
Executor, etc., et al.,
E063585
Plaintiffs and Appellants,
(Super.Ct.No. CIVBS1200525)
v.
OPINION
TATITLEK SUPPORT SERVICES,
INC.,
Defendant and Respondent.
APPEAL from the Superior Court of San Bernardino County. Donald R. Alvarez,
Judge. Affirmed.
Kristensen Weisberg, John P. Kristensen, David L. Weisberg, Matthew T. Hale;
Carpenter, Zuckerman & Rowley, Paul S. Zuckerman and John C. Carpenter for
Plaintiffs and Appellants.
Hinshaw & Culbertson, Frederick J. Ufkes and Aji N. Abiedu for Defendant and
Respondent.
I
INTRODUCTION
Plaintiffs and appellants Gail M. Lynn (Mrs. Lynn), individually and as executor
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of the Estate of Brian Griffin Lynn (Mr. Lynn), and Randy Lynn, Mr. and Mrs. Lynn’s
son, (plaintiffs) appeal from summary judgment entered in favor of defendant and
respondent Tatitlek Support Services, Inc. (TSSI) in a wrongful death action.
The sole question raised on appeal is whether TSSI’s temporary employee, Abdul
Formoli, was acting within the scope of his employment when he caused an automobile
accident (the accident), killing Mr. Lynn and seriously injuring Mrs. Lynn. Plaintiffs
contend the “going and coming” rule, precluding employer vicarious liability, does not
apply because of the nature of Formoli’s employment preceding the accident. Because of
the remoteness of the jobsite, Formoli’s employment required him to undertake a lengthy
commute home, after working long hours, over three and a half days. Plaintiffs argue
that under such circumstances there is a triable issue of material fact as to whether an
exception to the “going and coming” rule applies. Plaintiffs rely on three exceptions: the
extraordinary-commute incidental benefit exception, the compensated travel-time
exception, and the special risk exception.
We conclude plaintiffs have failed to present evidence supporting these exceptions
to the going and coming rule. We therefore affirm the judgment on the ground it is
undisputed TSSI was not vicariously liable for the accident under the doctrine of
respondeat superior.
II
FACTUAL AND PROCEDURAL BACKGROUND
The following facts are taken from evidence provided in the summary judgment
motion and opposition, including declarations and deposition testimony from TSSI
2
operations manager, Mark Munoz, and retired United States Marine Corps Master
Gunnery Sergeant, Mark Capese. Capese served as TSSI’s project manager for the
military exercises Formoli participated in, beginning on August 7, 2011, and ending on
August 11, 2011.
A. Formoli’s Employment as a TSSI Role Player
TSSI is an Alaskan corporation that provides support services for realistic military
pre-deployment training at several United States Army and Marine Corps bases
throughout the country. TSSI entered into an employment contract with the United States
Marine Corps to recruit and hire foreign language role players to participate in military
exercises at the United States Marine Corps military base located at Twentynine Palms
(the Base). Those exercises included the Mojave Viper mission, beginning on August 7
and ending on August 11, 2011. These exercises provided training of marines before
they were deployed to combat in Afghanistan. Around 500 role players were hired on an
“as needed” basis for the exercises.
The exercises were intended to provide “real life experience.” TSSI recruited role
players from Afghan communities located in Fremont and San Diego, California, and
Phoenix, Arizona. Although TSSI did not recruit from other areas, some of the role
players were from Idaho, Colorado, Nevada, other parts of California, New York, and
Florida. They would hear about the jobs by word of mouth. There were two types of role
players. One type had to be from the Afghan culture and know the Afghan language.
There were also “street walkers,” called “Civilian on the Battlefield” role players. They
could be Americans who did not know the culture or language.
3
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. There were
simulated battle scenes. The exercises were physically strenuous, caused fatigue, and
were stressful. The role players slept a minimum of five hours per day. The noise level
reduced to a reasonably quiet level by 11:00 p.m., which “easily accommodates sleep,”
according to TSSI operations manager, Mark Munoz.
When hiring role players for a mission, TSSI would ask if the employee was going
to drive to/from the jobsite or wanted round-trip bus transportation from Fremont, San
Diego or Phoenix. TSSI provided this optional bus service to role players at no charge.
The bus service was not provided with the intention of ensuring the role players had safe
transportation to the Base. Rather, the bus service was provided because many of the role
players did not have personal vehicles and the transportation ensured that the role players
would arrive on time.
Before a role player was formally hired and permitted on the Base, the employee
was required to pass a TSSI background check and be “in-processed” at TSSI’s facility
near the Base. After completing the “in-processing,” role players were bused to TSSI’s
on-base location and then sent to their assigned locations on the Base, where the Mojave
Viper exercises were conducted. During the exercises, the role players were not allowed
to leave their assigned locations and could not act “out of role,” except during a rest
break. Workers were provided significant periods of downtime during which they could
rest and sleep. Role players recorded their work time on a TSSI time card.
4
After the exercises were completed the role players returned to TSSI’s on-base
facility for “out-processing.” The role players returned their costumes and gear used for
the exercises, filled out their time cards, and received a meal or snack. They were then
transferred by bus to TSSI’s nearby off-base facility. The role players were then free to
leave by personal vehicle, bus services provided by TSSI, or other transportation.
Formoli was hired by TSSI as a “civilian,” “Afghan villager” role player to
participate in the exercises at the Base beginning on August 7, 2011. He had not worked
for TSSI before. Formoli was 41 years old and lived in Sacramento. He passed TSSI’s
background check, which included an alcohol and drug test. Formoli’s time sheets
showed eight work hours on August 7; 17 hours on August 8; 19 hours on August 9; 19
hours on August 10, and eight hours on August 11.
According to Capese, Formoli’s work hours were determined pursuant to contract
and did not necessarily reflect the number of hours Formoli actually worked. The first
day, role players were paid for eight hours, for in-processing and being placed on the
Base range for their role playing assignments. After that, role players were required to be
on the range participating in military exercises for a specified number of hours a day,
such as 17 or 19 hours. During that time, role players might be in their village hut
sleeping, or playing cards or Dominos. They might not be physically active during that
time. Formoli slept in the same location on the Base range where he participated in the
exercises. This would have been the tribal family village where he was assigned to role
play. The role players were required to get at least five hours a day of sleep but might get
more sleep. Normally, the exercises would last until 10:00 p.m. or 11:00 p.m. Role
5
players would then be free to sleep until 6:00 a.m. the next morning, although at 4:00
a.m., the loud speaker would play the pre-dawn call to prayer.
Formoli chose to drive himself to and from TSSI’s Twentynine Palms facility,
rather than make use of the bus services provided by TSSI. About 80 percent or 392 of
the role players travelled by the buses TSSI provided. None of the role players lived
locally in Twentynine Palms, although 15 or 20 lived within 100 miles of the Base.
According to Capese, TSSI did not pay Formoli or any other role players for their travel
time to or from the Base, regardless of whether the workers drove themselves or took the
bus. Role players who used their own cars for transportation were also not reimbursed
for their transportation expenses.
Formoli drove from his home in Sacramento to TSSI’s Twentynine Palms facility
and was in-processed on August 7, 2011. Formoli did not drive his vehicle on the Base.
It was parked outside the Base at a TSSI parking lot. From there, a TSSI bus transported
Formoli and others to the Base. According to Capese, Formoli was out-processed and
departed from the Base and TSSI’s facility at approximately 10:00 a.m. on August 11,
2011. Normally the mission ends and the role players finish out in the field at around
7:00 a.m. They are bused back to the out-processing facility to check out and are off the
Base by 11:00 a.m. or noon.
The paid work hours on the last day, August 11, were determined by contract,
regardless of the hours actually worked. Pursuant to contract, the role players were paid
eight hours on the day they were out-processed. Military exercises were not performed
that day but were performed the night before. It was possible the exercises could have
6
lasted until after midnight. Capese did not know if this occurred. Formoli would have
gotten up on August 11, 2011, at 6:00 a.m. The workers probably did not get breakfast
but were given a sack lunch at check out. They put away their cots, gathered their
belongings, and got on the bus transporting them to the check-out facility. Capese
confirmed that, at the time of the accident, Formoli was not engaging in any errand or
activity benefitting TSSI or incidental to Formoli’s employment with TSSI.
As Formoli was driving home to Sacramento, after completing his job assignment,
he crashed into a pickup truck driven by Mr. Lynn. Formoli’s vehicle, a Toyota Solara,
burst into flames, fatally incinerating Formoli. The fire spread to the Lynns’ vehicle.
Formoli died at the scene and Mr. Lynn died shortly thereafter from his serious injuries.
Mrs. Lynn, who was a passenger, survived the accident. The accident occurred on
August 11, 2011, at 2:25 p.m., on California Route 247 (SR-247). Formoli was about
five miles south of Barstow and almost 100 miles from TSSI’s Twentynine Palms
facility. According to the coroner’s toxicology report, at the time of the accident,
Formoli’s blood alcohol level was .06 percent.
At the time of the head-on collision, Formoli was traveling north in the
southbound lane, in the wrong direction of travel, instead of remaining in the northbound
lane, which curved to the right. The collision occurred in the southbound lane, after
Formoli crossed over from the northbound lane to the southbound lane and struck the
Lynns’ vehicle. Officer Carmichall was dispatched to the accident scene at 2:29 p.m. and
arrived at the scene 10 minutes later. Carmichall determined that the primary cause of
the accident was Formoli crossing the double-yellow lines, in violation of Vehicle Code
7
section 21460, subdivision A. Before Mr. Lynn died, he stated that Formoli came into
Mr. Lynn’s lane at a high rate of speed. Mr. Lynn attempted to turn to the right to avoid
crashing but Formoli was traveling too fast. Mrs. Lynn also stated that Formoli crossed
over the center yellow lines at a high rate of speed, and collided with the Lynns’ truck,
which was travelling 55 miles per hour.
Carmichall concluded in his report that, as Formoli traveled northbound,
approaching a right curve in the roadway, Formoli “[f]or unknown reasons,” allowed his
vehicle to cross the solid double yellow lines into the southbound lane. Formoli’s vehicle
was in the direct path of the Lynns’ southbound traveling vehicle, causing a head-on
collision in the southbound lane.
B. Summary Judgment Proceedings
Plaintiffs filed a wrongful death complaint against Formoli’s estate and various
other defendants. Plaintiffs added TSSI as a Doe defendant. Plaintiffs amended the
complaint several times, with the third amended complaint serving as the operative
complaint (complaint). The complaint includes causes of action for wrongful death
negligence, alleging Formoli failed to drive in a safe and reasonable manner, resulting in
Formoli negligently crossing over the yellow lines on SR-247 and crashing head-on into
plaintiffs’ vehicle. Plaintiffs’ remaining claims are against TSSI, Formoli, and Formoli’s
ex-wife who owned the vehicle Formoli was driving at the time of the accident.
TSSI filed a motion for summary judgment. TSSI’s separate statement of
undisputed facts asserted the following facts were undisputed: (1) Before the accident,
TSSI had discharged Formoli as an employee; (2) at the time of the accident, Formoli
8
was not engaged in any activity that benefited TSSI; (3) at the time of the accident,
Formoli was not engaging in any activity incidental to his employment with TSSI; (4) the
military exercises TSSI hired Formoli to participate in as a role player were completed
the morning of August 11, 2011; (5) Formoli departed from TSSI’s Twentynine Palms
facility at approximately 10:00 a.m. on August 11, 2011; and (6) TSSI did not
compensate Formoli or any other role player for travel time to or from the Base.
Relying on Hinman v. Westinghouse Electric Company (1970) 2 Cal. 3d 956
(Hinman), plaintiffs argued in their opposition that TSSI was liable under the doctrine of
respondeat superior based on the employer special benefit exception to the going and
coming rule. Plaintiffs also argued the accident occurred while Formoli was being paid
by TSSI for his travel time and therefore TSSI was liable under the respondeat superior
doctrine. Plaintiffs’ third argument was that a triable issue of fact existed as to whether
the special risk exception to the going and coming rule applied, based on TSSI allowing
exhausted, sleep deprived role players to drive home after completing their grueling,
stressful work assignments.
During oral argument on TSSI’s summary judgment motion, plaintiffs argued that
a triable issue existed as to whether the incidental benefit and special risk exceptions to
the going and coming rule applied. Plaintiffs maintained it was foreseeable a TSSI role
player would cause an automobile accident while driving home. Plaintiffs further argued
that an employer, such as TSSI, which benefits from employing workers solicited from
extended, distant labor markets, should be required to pay for the travel risks inherent in
such employees commuting long distances. TSSI requested the trial court strike Dr.
9
Glass’s expert opinion declaration on the ground the expert declaration lacked foundation
under Evidence Code sections 801 and 802, and Formoli’s mental state at the time of the
accident was purely speculative.
In a detailed written statement of decision, the trial court granted TSSI’s summary
judgment motion “on the ground that TSSI has met its prima facie burden of showing that
Mr. Formoli was not acting within the course and scope of his employment when he
collided with plaintiffs’ decedent, shifting the burden of production onto the plaintiffs,
and plaintiffs have failed to present evidence sufficient to show the existence of any
triable issue of material fact as to the scope of Mr. Formoli’s employment.” The trial
court sustained TSSI’s objection to Dr. Glass’s expert opinion declaration on the ground
that, “although [] it seems possible and even likely that Mr. Formoli was tired when he
left Twentynine Palms, Dr. Glass’s opinion that his fatigue was the reason Mr. Formoli
crossed into oncoming traffic seems to be mere speculation especially in the absence of
evidence showing how long it had been since Mr. Formoli had last slept.”
III
SUMMARY JUDGMENT
A defendant seeking summary judgment has the burden of showing that a cause of
action has no merit by showing that one or more elements of the cause of action cannot
be established or that there is a complete defense to that cause of action. (Moradi v.
Marsh USA, Inc. (2013) 219 Cal. App. 4th 886, 894 (Moradi).) Upon the defendant
meeting this burden of proof, “‘“the burden shifts to the plaintiff to show that a triable
issue of fact exists as to that cause of action. . . . In reviewing the propriety of a summary
10
judgment, the appellate court independently reviews the record that was before the trial
court. . . . We must determine whether the facts as shown by the parties give rise to a
triable issue of material fact. . . . In making this determination, the moving party’s
affidavits are strictly construed while those of the opposing party are liberally construed.”
. . . We accept as undisputed facts only those portions of the moving party’s evidence
that are not contradicted by the opposing party’s evidence. . . . In other words, the facts
[set forth] in the evidence of the party opposing summary judgment and the reasonable
inferences therefrom must be accepted as true.’” (Buxbaum v. Aetna Life & Casualty Co.
(2002) 103 Cal. App. 4th 434, 441.)
IV
VICARIOUS LIABILITY
Plaintiffs contend the trial court erred in granting TSSI’s summary judgment
motion, finding it was undisputed TSSI was not vicariously liable for Formoli’s acts
under the doctrine of respondeat superior. The trial court concluded there was no
evidence that Formoli was acting within the course and scope of employment at the time
of the accident. Plaintiffs argue the going and coming rule, which precludes respondeat
superior liability, does not apply under several applicable exceptions to the rule. We
conclude it is undisputed exceptions to the going and coming rule do not apply.
A. Incidental Benefit Exception to the Going and Coming Rule
Plaintiffs argue the incidental benefit exception to the going and coming rule
applies. “‘Under the theory of respondeat superior, employers are vicariously liable for
tortious acts committed by employees during the course and scope of their
11
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.’ [Citation.]” (Moradi, supra, 219 Cal.App.4th
at pp. 894-895.)
As a matter of public policy, employers are vicariously responsible for losses from
employees’ torts that inevitably occur in the operation of a business enterprise. Vicarious
responsibility for employee torts is one of the imputed costs of production that society as
a whole bears through the price of the product or insurance rates, rather than the innocent
injured party. (Hinman, supra, 2 Cal.3d at pp. 959-960.) However, once employees
complete their work day, they ordinarily are not providing any benefit or service to their
employer until they begin the next work day, and therefore under the going and coming
rule, torts occurring during an employee’s commute are no more the vicarious
responsibility of the employer than torts committed at an employee’s home. (Id. at p.
961.) This is because the employment relationship is commonly viewed as “suspended”
from the time the employee leaves until he or she returns, or that in commuting the
employee is not rendering service to the employer. (Ibid.; Blackman v. Great American
First Savings Bank (1991) 233 Cal. App. 3d 598, 602 (Blackman).)
Normally the going and coming rule applies in cases where an employee
ordinarily works at a particular location and the job duties do not ordinarily include
driving on the job. (Huntsinger v. Glass Containers Corp. (1972) 22 Cal. App. 3d 803,
809-810 (Huntsinger); Hinojosa v. Workmen’s Comp. Appeals Bd. (1972) 8 Cal. 3d 150,
12
157 (Hinojosa).)1 On the other hand, if the employer expressly or impliedly makes the
commute a part of the work day, or derives an incidental benefit from a particular
employee’s commute beyond that of the other members of the work force, then the
employer’s vicarious liability will continue during the course of the commute. (Id. at pp.
961-962.) In order for liability to arise for the use of a personal car, “the benefit must be
sufficient enough to justify making the employer responsible for the risks inherent in the
travel.” (Blackman, supra, 233 Cal.App.3d at p. 604.)
As explained in Moradi and Smith v. Workmen’s Comp. App. Bd. (1968) 69 Cal. 2d 814
(Smith): “‘Under the well established going and coming rule, an employee does not
pursue the course of his employment when he is on his way to or from work. . . . In a
number of cases we have established exceptions to this rule, such as those in which the
employer defrayed travel expenses . . . and those in which the employee engaged in a
special errand for his employer.” (Moradi, supra, 219 Cal.App.4th at p. 895, quoting
Smith, at pp. 815-816, 818, 820.) For instance, where an “‘accident occurred when the
employee drove his car to the employer’s premises pursuant to the employer’s
requirement that the employee furnish his own car, we hold that the so-called going and
coming rule does not bar coverage.’ [Citation.] ‘[T]he employer clearly benefited from
[the employee’s] bringing the car to work. Indeed, an employer must be conclusively
1 Although workers’ compensation cases represent a more liberal allocation of
liability to an employer for commute injuries and therefore are not controlling, such cases
may be instructive to the extent they are based on the principle of identifying an
extraordinary employer benefit from an employee’s commute. (Hinman, supra, 2 Cal.3d
at p. 962, fn. 3.)
13
presumed to benefit from employee action reasonably directed towards the execution of
the employer’s orders or requirements. An employer cannot request or accept the benefit
of an employee’s services and concomitantly contend that he is not “performing service
growing out of and incidental to his employment.”’ [Citation.]” (Moradi, at p. 895,
quoting Smith, at pp. 815-816, 818, 820.)
“Generally, whether an employee is within the scope of employment is a question
of fact; however, when the facts of a case are undisputed and conflicting inferences may
not be drawn from those facts, whether an employee is acting within the scope of
employment is a question of law. [Citation.] [¶] Exceptions are made to the going-and-
coming rule when the employee’s trip involves an incidental benefit to the employer, not
common to commute trips by ordinary members of the work force. [Citation.]”
(Blackman, supra, 233 Cal.App.3d at p. 602.)
In the instant case, the accident occurred while Formoli was driving home after
completing his temporary job as a TSSI role player. It is undisputed that Formoli caused
the head-on crash. Plaintiffs argue TSSI is vicariously liable for Formoli’s negligent acts
even though the accident occurred after Formoli had completed his job assignment and
was driving home. Plaintiffs contend the going and coming rule does not apply under the
incidental benefit exception because TSSI benefited from role players, such as Formoli,
commuting unusually long distances to the jobsite, which was in a remote location.
We conclude plaintiffs have not provided evidence establishing that the incidental
benefit exception to the going and coming rule applies. Even though Formoli had a long
commute, there is no evidence that Formoli’s use of a personal vehicle was a condition of
14
employment or that Formoli agreed to make his personal vehicle available as an
accommodation to TSSI, with TSSI reasonably relying upon Formoli using it during his
employment.
Citing Hinman, supra, 2 Cal. 3d 956, plaintiffs argue TSSI is vicariously liable
under the incidental benefit exception to the going and coming rule because TSSI
benefited from hiring role players from an expanded labor market, thereby requiring role
players such as Formoli to travel lengthy distances to work at the Base. Plaintiffs assert
that this benefit to TSSI created the inherent risk that role players would get in vehicle
accidents during their lengthy commutes. Plaintiffs’ reliance on Hinman for the
proposition the going and coming rule is inapplicable is misplaced.
The court in Hinman recognized that if an employee commute confers “an
incidental benefit to the employer, not common to commute trips by ordinary members of
the work force,” respondeat superior liability can extend to accidents during the trip.
(Hinman, supra, 2 Cal.3d at p. 962.) The Hinman court explained that, when an
employer chooses to further its business interest by enlarging the geographical pool from
which to draw its labor force by paying its employees for their commute, and this
business benefit also creates a concomitant increased risk of accidents by hiring
employees with lengthy commutes, the lengthy employee commutes benefit the
employer. Under these circumstances, Hinman concluded the employer should also be
responsible for the risks inherent in the choice of inducing increased commuting.
The court in Hinman explained in this regard that “There is a substantial benefit to
an employer in one area to be permitted to reach out to a labor market in another area or
15
to enlarge the available labor market by providing travel expenses and payment for travel
time. It cannot be denied that the employer’s reaching out to the distant or larger labor
market increases the risk of injury in transportation. In other words, the employer,
having found it desirable in the interests of his enterprise to pay for travel time and for
travel expenses and to go beyond the normal labor market or to have located his
enterprise at a place remote from the labor market, should be required to pay for the
risks inherent in his decision.” (Hinman, supra, 2 Cal.3d at p. 962; italics added.) The
Hinman court concluded that, by agreeing to pay employee travel time and expenses
associated with commuting, the employer made the travel time part of the employee’s
working day and the employee should be treated as an employee during the travel time.
(Ibid.)
Hinman is factually distinguishable from the instant case. In Hinman, the
plaintiff, a policeman, who was standing on the freeway center divider, was struck by the
defendant’s employee. The employee was driving home from work on company time.
He worked as an elevator constructor’s helper. He drove directly to and from the jobsite,
rather than to the defendant’s office. The employee was paid for “carfare,” travel
expenses, and travel time. The court in Hinman rejected application of the “going and
coming” rule and concluded the respondeat superior doctrine applied because, at the time
of the accident, the employee was on company time and was engaged in the very conduct
contemplated by the employer. (Hinman, supra, 2 Cal.3d at p. 960.)
Here, as discussed in greater detail below, there was no evidence that Formoli’s
employer, TSSI, compensated Formoli for his travel time or expenses. There was also no
16
evidence that during his commute, Formoli was engaged in conduct benefiting TSSI.
Formoli was simply driving home after completing his temporary job assignment.
Furthermore, even though TSSI’s role players were hired from an extended labor market
and were generally required to commute long distances to the Base, evidence established
that the role players were not required to commute by personal vehicle. The means by
which they travelled to and from the jobsite was “a matter of complete indifference” to
TSSI (Moradi, supra, 219 Cal.App.4th at p. 897, quoting Huntsinger, supra, 22
Cal.App.3d at p. 810), and required only a single round-trip commute. TSSI left to the
discretion of the workers the manner of transportation. Role players could commute by
personal car, bus, or any other means of transportation they so choose.
Plaintiffs argue Formoli’s commute was not “ordinary” because it was lengthy,
and the incidental benefit exception does not require employer payment of employee
travel time and expenses under Hinman. While payment of travel expenses is not
required under Hinman, a lengthy, one-time, round-trip commute for a temporary job in
and of itself is not a sufficient basis for applying the incidental benefit exception to the
going and coming rule, particularly when TSSI provided optional, free transportation by
bus. Formoli could have used the bus services offered by TSSI, to and from Fremont, for
the majority of his lengthy commute. Formoli nevertheless chose to drive himself. There
thus was no removal of the means of transit from Formoli’s choice or convenience, with
placement of transit within the ambit of the employer’s choice or convenience. (Moradi,
supra, 219 Cal.App.4th at p. 899; Hinojosa, supra, 8 Cal.3d at p. 157.)
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Furthermore, TSSI did not induce its employees to commute long distances by
personal vehicle. TSSI recruited employees from only three areas, San Diego, Fremont,
and Phoenix, communities known to have the type of individuals who would qualify for
the particular role playing jobs TSSI was offering. In the three areas where TSSI
recruited employees, TSSI offered free bus transportation. It is undisputed that Formoli
was not from one of the three areas where TSSI recruited employees. Any benefit TSSI
received from reaching out to a distant labor market did not apply to Formoli.
It is unrefuted the incidental benefit exception does not apply here. The
undisputed evidence shows that TSSI did not require Formoli to use his personal vehicle
to perform his job responsibilities; TSSI did not require Formoli to drive to or from the
jobsite; TSSI did not recruit employees from Sacramento, where Formoli lived; Formoli
had the option of using bus services provided by TSSI for most of his commute; Formoli
had discretion on when, where and how to commute to the jobsite; Formoli had
completed his temporary employment assignment at the time of the accident; Formoli had
left the jobsite over two hours before the accident; and the accident occurred nearly 100
miles from the jobsite. Under these circumstances, the relationship between Formoli’s
employment and driving home after completing his job assignment was simply too
attenuated an employer benefit to require TSSI to bear the risk of an accident during
Formoli’s commute home. (Tognazzini v. San Luis Coastal Unified School Dist. (2000)
86 Cal. App. 4th 1053, 1058-1060; Blackman, supra, 233 Cal.App.3d at pp. 602-604.)
Hinman does not stand for the proposition that the incidental benefit exception to
the going and coming rule applies whenever an employee has a lengthy commute. In this
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day and age of employees commuting long distances to work or telecommuting with an
occasional lengthy commute to their employer’s office, employer liability based solely on
an employee’s lengthy commute would place an unreasonable, excessive burden on the
employer, and ultimately on the community at large. (Hinman, supra, 2 Cal.3d at p.
960.) Any benefit to TSSI from the lengthy commute of employees such as Formoli does
not amount to a greater benefit than that derived from employee commute trips by
ordinary members of the work force. (Id. at p. 962.) This is even more the case here
where TSSI minimized the risk of the long-distance commute by providing employees
with free long distance bus transportation from the communities where TSSI recruited its
employees. TSSI therefore should not be held liable for employees, such as Formoli,
who were not from areas where TSSI recruited employees and who chose to commute a
lengthy distance by personal vehicle.
Formoli’s commute home was not an instance “where the trip involves an
incidental benefit to the employer, not common to commute trips by ordinary members of
the work force.” (Hinman, supra, 2 Cal.3d at p. 962; Huntsinger, supra, 22 Cal.App.3d at
p. 810.) It was Formoli’s personal activity which caused the accident, which did not
occur within the course and scope his employment. Formoli’s negligent activity during
his commute home was not part of the employer-employee relationship required for
respondeat superior liability. (Sunderland v. Lockheed Martin Aeronautical Systems
Support Company (2005) 130 Cal. App. 4th 1, 5.)
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B. Compensation for Travel Time
As noted above, courts have excepted from the going and coming rule 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, thus making “the travel time part of the working day by their contract.”
(Hinman, supra, 2 Cal.3d at p. 962.) Plaintiffs contend the trial court erred in finding it
was undisputed that TSSI did not compensate Formoli for his travel time during his
commute home, when the accident occurred. Plaintiffs argue there was evidence that
Formoli was paid for eight hours of work on the day of the accident. There was also
evidence his working time began when he started out-processing at 7:00 a.m. on August
11, 2011, and he left the Base at around 10:00 a.m. Plaintiffs therefore conclude that
because he was paid for eight hours of work, Formoli was paid for his travel time after he
left the Base, including when the accident occurred.
But this unfounded theory that TSSI paid Formoli for his travel time, is based on
pure speculation, in the absence of any factual support. Furthermore, there is undisputed
evidence to the contrary, that Formoli was not being paid for his travel time when the
accident occurred. Capese, TSSI’s project manager for the exercises, stated that,
although the role players were paid for working eight hours their last day, this was
pursuant to contract and not a reflection of the actual hours worked. Role players were
paid eight hours the last day for out-processing pursuant to contract. Formoli actually
worked from the time he got up until he left the Base. Capese confirmed that Formoli
chose to drive himself to and from the Base, rather than make use of the bus services
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provided by TSSI. According to Capese, TSSI did not pay Formoli or any other role
player for their travel time or travel expenses, regardless of whether the workers drove
themselves or used other transportation. A TSSI personnel file print-out containing
employment information regarding Formoli, shows that Formoli was employed as a role
player for the Mojave Viper mission, and worked August 7 through August 11, 2011.
The print-out states that Formoli did not receive “travel pay.”
We recognize that, when ruling on TSSI’s summary judgment motion, neither the
trial court nor this court may weigh plaintiffs’ evidence or inferences, as if sitting as the
trier of fact. The trial court may not grant TSSI’s summary judgment motion “based on
inferences . . . if contradicted by other inferences or evidence that raise a triable issue as
to any material fact.” (Code Civ. Proc., § 437c, subd. (c).) Furthermore, the court may
not grant summary judgment “based on any evidence from which such inferences are
drawn, if so contradicted. That means that, if the court concludes that the plaintiff’s
evidence or inferences raise a triable issue of material fact, it must conclude its
consideration and deny the defendants’ motion.” (Aguilar v. Atlantic Richfield Co.
(2001) 25 Cal. 4th 826, 856.)
All of the evidence presented by plaintiffs and TSSI, and all of the inferences
drawn therefrom, establish that TSSI did not compensate Formoli at the time of the
accident. The trial court therefore appropriately found that the Hinman exception to the
going and coming rule did not apply. The undisputed shows that, although TSSI paid
Formoli for eight hours of work on August 11, 2011, this did not reflect the actual time
he worked that day, and there is no evidence that TSSI paid Formoli for working after he
21
left the Base or for his travel time or expenses. Concluding otherwise would constitute
pure, unfounded speculation.
C. The Special Risk Exception to the Going and Coming Rule
Plaintiffs argue a triable issue of fact exists as to whether the work-related, special
risk exception to the going and coming rule applies. Plaintiffs base their contention on
evidence that, when Formoli left the Base the morning before the accident, he was
exhausted and sleep deprived from working as a role player. Plaintiffs cite evidence
Formoli worked at least 63 hours over three and a half days, before beginning his 500-
mile drive home. The trial court rejected plaintiffs’ contention the special risk exception
applied on the ground plaintiffs did not provide evidence of when Formoli last slept
before leaving the Base.
1. The Work-Related Special Risk Doctrine Law
The work-related, special risk exception to the going and coming rule “applies
when an employee endangers others with a risk arising from or related to work. In
determining whether such danger arises from or is related to work, case law applies a
foreseeability test. Our Supreme Court describes this type of foreseeability, which is
different from the foreseeability of negligence, as employees’ conduct that is neither
startling nor unusual. ‘“One way to determine whether a risk is inherent in, or created by,
an enterprise is to ask whether the actual occurrence was a generally foreseeable
consequence of the activity.”’” (Bussard v. Minimed, Inc. (2003) 105 Cal. App. 4th 798,
804 (Bussard).) The foreseeability test “‘reflects the central justification for respondeat
superior; that losses fairly attributable to an enterprise—those which foreseeably result
22
from the conduct of the enterprise—should be allocated to the enterprise as a cost of
doing business.’ [Citation.]” (Id. at pp. 804-805.)
Courts have applied this foreseeability test when considering the special risk
exception, where employees have caused car accidents on the way home after drinking
alcohol at work. Courts have found a sufficient link between drinking and car accidents,
concluding such collisions are neither startling nor unusual, and thus foreseeable under
respondeat superior. (Bussard, supra, 105 Cal.App.4th at p. 805; see Childers v. Shasta
Livestock Auction Yard, Inc. (1987) 190 Cal. App. 3d 792, 803-804 (Childers); Harris v.
Trojan Fireworks Co. (1981) 120 Cal. App. 3d 157, 164.)
Respondeat superior liability under the special risk exception “‘is properly applied
where an employee undertakes activities within his or her scope of employment that
cause the employee to become an instrumentality of danger to others even where the
danger may manifest itself at times and locations remote from the ordinary workplace.’”
(Bussard, supra, 105 Cal.App.4th at p. 805-806, quoting Childers, supra, 190 Cal.App.3d
at pp. 804-805.) Where the risk of injury is created by the enterprise, within the scope of
the employee’s employment, and it proximately causes the injury, the cost of injury is
imposed upon the enterprise. (Bussard, at p. 805; Childers, at p. 805.)
2. Analysis
Here, plaintiffs have not provided evidence there was a foreseeable risk of third
party injury from a car accident created by Formoli’s employment. There was also an
absence of evidence Formoli’s fatigue from working as a role player proximately caused
the accident. There is no evidence supporting a reasonable finding that Formoli did not
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receive adequate sleep such that he was incapable of driving safely after leaving the Base.
In other words, plaintiffs have not provided any admissible evidence that Formoli’s
employment was a substantial factor in causing or contributing to the accident. The
accident occurred where the highway curved to the right, whereas Formoli drove straight,
resulting in Formoli crossing over the center line into the southbound lane and crashing
head-on into the plaintiffs’ vehicle. Whether Formoli failed to follow the curve to the
right because of fatigue is pure speculation, particularly when there was no evidence of
how much sleep he received the night before leaving the Base and he was found to have
had a blood alcohol level of .06 percent. The police report states that Formoli crossed the
center divider line “[f]or unknown reasons.”
Although plaintiffs submitted evidence Formoli worked long hours and the work
was stressful and could be physically and mentally demanding, there was undisputed
evidence that TSSI implemented procedures and rules intended to ensure that role players
received adequate rest and uninterrupted sleep while participating in the military
exercises. For instance, role players, such as Formoli, were required to receive at least
five hours of uninterrupted sleep each night, and were also given rest breaks. The
evidence also indicates that normally role players could go to bed and sleep at around
10:00 p.m. or 11:00 p.m., when the noise level was required to subside, and role players
were not required to get up the following morning until 6:00 a.m. There is no evidence
Formoli was prevented from sleeping during these hours, particularly the night before his
commute home.
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There is thus no evidence Formoli was unfit to drive because of work-related
fatigue or evidence this was a substantial factor in causing or contributing to the accident.
Therefore a reasonable trier of fact could not find that the accident was a generally
foreseeable consequence of Formoli’s employment as a role player. There being a lack
of evidence of an employer-caused driver impediment (fatigue) or that such impediment
proximately caused the accident, we conclude the trial court appropriately granted TSSI’s
summary judgment motion. Evidence of Formoli’s work hours and activities alone are
not enough to raise a triable issue of fact that TSSI was vicariously liable based on the
special risk exception to the going and coming rule.
In Depew v. Crocodile Enterprises, Inc. (1998) 63 Cal. App. 4th 480 (Depew), the
court rejected the special risk exception, which the plaintiffs argued applied based on
evidence a restaurant employee worked long hours and then, after leaving work, fell
asleep at the wheel. The plaintiffs claimed respondeat superior liability against the
restaurant based on the special risk exception to the going and coming rule. The
plaintiffs argued the employee’s work-related fatigue caused the employee to be unfit to
drive. The employee had worked a double shift lasting 17.5 hours; then took a 16-hour
break; worked another six hours; and then after leaving work, caused a fatal car accident.
The employee admitted several times to investigating officers that he fell asleep at the
wheel. The Depew court rejected the special risk exception as a matter of law on the
ground the employee’s work schedule did not create a special risk that he would injure or
kill someone by falling asleep while driving home.
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The Depew court reasoned there was an insufficient nexus between the
employee’s employment and the plaintiff’s death because the employee had a 16-hour
break between work shifts, followed by six hours of work. The Depew court explained
that this “is not the type of excessive workload that makes falling asleep at the wheel and
killing another driver ‘a generally foreseeable consequence’ of operating a restaurant.
[Citation.] This type of accident was not the ‘“. . . inevitable toll of a lawful enterprise.”’
[Citation.] Nor did Depew’s death fall into the category of ‘injuries that “‘as a practical
matter are sure to occur in the [restaurant business].’”’ [Citation.]” (Depew, supra, 63
Cal.App.4th at p. 490.)
Although Depew, supra, 63 Cal. App. 4th 480, is factually distinguishable, it is
instructive in demonstrating that there must be evidence the employee’s fatigue was
caused by an excessive workload, making falling asleep while driving a foreseeable
consequence of the employee’s job. Here, there was no evidence of this, while there was
evidence TSSI took measures to ensure role players had sufficient rest and uninterrupted
sleep each night. In addition, 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, more
importantly, no evidence fatigue from his employment conditions proximately caused the
accident. As in Depew, we conclude there was an insufficient nexus between Formoli’s
employment and the accident as a matter of law. The trial court therefore properly
rejected the special risk exception to the going and coming rule.
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3. Admissibility of Dr. Glass’s Declaration
Plaintiffs argue the trial court erred in excluding Dr. Glass’s declaration, which
plaintiffs contend provided evidence that Formoli’s work activities caused Formoli to be
overly fatigued, and this was a substantial factor in causing the accident. The trial court
correctly sustained TSSI’s evidentiary objection to Dr. Glass’s expert opinion declaration
on the grounds the declaration lacked foundation under Evidence Code sections 801 and
802, and Formoli’s mental state at the time of the accident was purely speculative.
The trial court may strike or dismiss an expert declaration filed in connection with
a summary judgment motion when the declaration states expert opinions that are
speculative, lack foundation, or are stated without sufficient certainty. (Powell v.
Kleinman (2007) 151 Cal. App. 4th 112, 123.) Dr. Glass’s expert opinion declaration is
deficient for all of these reasons. His declaration fails to state any expert opinion based
on matters of a type reasonably relied upon in forming a medical opinion. (Ibid.)
Instead, his declaration reflects that he based his opinions as to Formoli’s condition at the
time of the accident and the cause of the accident on assumptions and speculation. An
expert’s opinion “‘may not be based on assumptions of fact that are without evidentiary
support or based on factors that are speculative or conjectural, for then the opinion has no
evidentiary value and does not assist the trier of fact. [Citation.] Moreover, an expert’s
opinion rendered without a reasoned explanation of why the underlying facts lead to the
ultimate conclusion has no evidentiary value because an expert opinion is worth no more
than the reasons and facts on which it is based. [Citations.]’” (Ibid., quoting Bushling v.
Fremont Medical Center (2004) 117 Cal. App. 4th 493, 510.)
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As stated in Evidence Code section 801: “If a witness is testifying as an expert,
his testimony in the form of an opinion is limited to such an opinion as is: [¶]
(a) Related to a subject that is sufficiently beyond common experience that the opinion
of an expert would assist the trier of fact; and [¶] (b) Based on matter (including his
special knowledge, skill, experience, training, and education) perceived by or personally
known to the witness or made known to him at or before the hearing, whether or not
admissible, that is of a type that reasonably may be relied upon by an expert in forming
an opinion upon the subject to which his testimony relates, unless an expert is precluded
by law from using such matter as a basis for his opinion.”
Dr. Glass provides the following generic, commonly known view among the
general public that “long work hours at a stressful job leads to reduced sleep in both time
and quality and; with the absence of an adequate recovery period, fatigue results.
Furthermore, it is generally accepted in medicine that driving while fatigued is
dangerous. Among other problems, fatigued drivers have slowed reaction times and fall
asleep at the wheel. Fatigued drivers are less precise in their driving and fail to remain in
their lane of travel. Driving while fatigued is dangerous and, especially at highway
speeds, can be fatal.” He adds that “It is generally accepted in medicine, of course, that
consumption of alcohol prior to driving can be dangerous. It is also generally accepted
alcohol consumption compounds the dangerousness of fatigued driving.”
Dr. Glass’s declaration states conclusions, without stating any medical or scientific
bases for reaching his opinions. For instance, without knowing how many hours Formoli
slept while at the Base, including the night before the accident, Dr. Glass states that
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Formoli was fatigued at the time of the accident. Dr. Glass also concludes Formoli’s
fatigue was the cause of the accident, whereas this was nothing more than pure
speculation. Furthermore, Dr. Glass’s declaration states opinions that rest on common
knowledge rather than on matters of a type reasonably relied upon in forming a medical
opinion. (Sargon Enterprises, Inc. v. University of Southern California (2012) 55 Cal. 4th
747, 770.) His opinions also overlook evidence that TSSI took measures to ensure that
role players such as Formoli received adequate sleep. Formoli may have been tired when
he left the Base on August 11, 2011, but there is no evidence that he could not safely
drive because of fatigue or that such fatigue substantially caused or contributed to the
accident. The trial court therefore properly sustained TSSI’s objection to Dr. Glass’s
declaration and did not consider it when ruling on TSSI’s summary judgment motion.
V
DISPOSITION
The judgment is affirmed. The parties shall bear their own costs on appeal.
CERTIFIED FOR PUBLICATION
CODRINGTON
J.
We concur:
McKINSTER
Acting P. J.
MILLER
J.
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