Lynn v. Tatitlek Support Services, Inc. (2017) · DecisionDepot
Lynn v. Tatitlek Support Services, Inc.
California Court of Appeal Feb 22, 2017 No. E063585Published
Before: Codrington, McKinster, Miller
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 1
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
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
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
23
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.
24
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.
25
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.
26
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.)
27
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
28
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.
29
AI Brief
AI-generated · verify before citing
Holding. The court held that the employer was not vicariously liable for a fatal accident caused by a temporary employee during his commute home because the employee was not acting within the scope of his employment and no exceptions to the "going and coming" rule applied.
Issues
Whether the "incidental benefit" exception to the "going and coming" rule applies when an employer hires from a distant labor market.
Whether the "compensated travel-time" exception applies when an employer does not pay for travel time or expenses.
Whether the "special risk" exception applies to an employee driving home after a strenuous work assignment.
Disposition. Affirmed.
Quotations verified verbatim against the opinion
“We conclude plaintiffs have failed to present evidence supporting these exceptions to the going and coming rule.”
“It is undisputed TSSI was not vicariously liable for the accident under the doctrine of respondeat superior.”
“There was no evidence that Formoli’s employer, TSSI, compensated Formoli for his travel time or expenses.”