Filed 6/18/2018

CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION FIVE

JAKE NEWLAND,

Plaintiff and Respondent,

v.

COUNTY OF LOS ANGELES,

Defendant and Appellant.

 B277638

 (Los Angeles County

 Super. Ct. No. BC514945)

APPEAL from a judgment and order of the Superior 

Court of Los Angeles County, Patrick T. Madden, Judge. 

Reversed with directions.

Greines, Martin, Stein & Richland, Timothy T. Coates, 

Edward L. Xanders, Feris M. Greenberger; Collins Collins 

Muir & Stewart, Brian K. Stewart, Joshua A. Cohen, 

Christian E. Foy Nagy, for Defendant and Appellant.

Law Offices of Martin N. Buchanan and Martin N. 

Buchanan; Panish, Shea & Boyle, Rahul Ravipudi, Thomas 

A. Schultz, Erika Contreras, for Plaintiff and Respondent.

__________________________
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. The employer contends 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. 

We agree 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. 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. The employer is entitled to judgment as a 

matter of law. We reverse the judgment with directions.

2
FACTS

Defendant and appellant County of Los Angeles hired 

Donald Prigo as a deputy public defender in the early 1980s. 

In February 2013, Prigo lived in Long Beach and performed 

felony trial work from his office in the Norwalk Courthouse. 

The County does not expressly require deputy public 

defenders to provide vehicles to carry out their job duties. 

The minimum requirements of Prigo’s job class specification 

were to have a valid California class C driver’s license or the 

ability to use alternative transportation when needed to 

carry out job-related essential functions. 

As a trial lawyer, however, Prigo needed to use his

personal vehicle for several job-related tasks. He regularly 

made appearances in branch courts in Bellflower, Whittier, 

Downey, and downtown Los Angeles for arraignments, 

preliminary hearings, and other proceedings. He drove his 

car from home or from his office at the Norwalk Courthouse

to attend proceedings at the branch courts, which was the 

most frequent use of his car for work purposes. When Prigo

received an assignment at a branch court, he had three to

ten days advance notice of the first hearing date in the 

branch court. If he could not make it to an appearance at a 

branch court, he could call an attorney assigned to that 

branch court to have the matter continued. Trials were 

rarely assigned to branch courts and Prigo had not had a 

trial in another courthouse since 2006, but he drove to the 

branch court if he had a trial there. It was not practical or 

3
reasonable to use public transportation to get from the 

Norwalk Courthouse to the other courts that he needed to 

attend. 

Prigo also used his car to drive to different jails as a 

regular part of his job. Eighty-five percent of his clients 

were in custody in downtown Los Angeles or in Castaic. 

Prigo needed to speak with them in person to establish trust 

and represent them properly. Public defenders can use 

videoconferencing from their offices to interview clients in 

custody, which Prigo made use of, but it was not intended to 

replace personal contact and a detailed interview with the 

client. There are interview rooms available at the Norwalk 

Courthouse to meet with clients. When Prigo visited a client 

in jail, he typically left his office in Norwalk in the early 

afternoon after the morning court calendar. He often drove 

directly home. No trains, buses, or public transportation go 

to the county jails within a reasonable amount of time. 

There was no practical alternative to driving his car. 

Throughout his career as a trial lawyer, Prigo also 

drove his car to view crime scenes. Visiting a crime scene 

helped him to understand the testimony and examine the 

witnesses in a case. He would visit a crime scene when he 

was preparing for a motion or a trial. He sometimes went to 

a crime scene on the way to or from work, but he usually 

went during the work day. Typically, he left his office in 

Norwalk in the afternoon to visit a crime scene. He might 

return to the office if the location was close, but he often 

drove directly home. 

4
On occasion, Prigo drove his car to the coroner’s office

or to meet witnesses. Witnesses normally came to Prigo’s 

office at the courthouse to speak with him. On a few 

occasions, he had to drive to visit an expert witness, because 

the equipment used by the expert was located at his or her

place of business. Public defenders use their judgment in 

retaining, meeting, and preparing expert witnesses. Most 

meetings with a client’s family and friends to gather 

mitigation information for sentencing took place at Prigo’s

office, but there were a few times that he drove his car to 

people’s homes because they could not travel. He could also 

apply for a paralegal’s assistance in gathering mitigation 

evidence. 

Prigo had the authority and discretion to determine 

when he needed to drive to a location for work. His 

supervisor was aware that he used his car to do his job, 

including going to the jails. The public defender’s office 

reimburses attorneys for mileage when they travel between 

courthouses, but not for commuting to and from their own 

office. Prigo had submitted two or three requests for mileage 

reimbursement in his entire career. He used his car as a 

regular part of his job. If a supervisor wanted to send him 

outside of the Norwalk Courthouse, his car was available to 

him at work every day that he drove. Public defenders never 

had emergency work situations that required the use of a car 

to leave the office right away. 

Prigo could not realistically do his job in Los Angeles 

County without a vehicle. Prigo’s work as a trial lawyer was 

5
cyclical and his workload varied, so there were months when 

he had an increased need to use his car for work and weeks 

when he did not need to use his car for work at all. He used 

his car an average of eight to ten days per month for work 

purposes. Prigo could use public transportation to commute 

on the days that he did not have work-related tasks outside 

the office. Prigo spent 95 percent of his time in the Norwalk 

Courthouse. Public transportation was never sufficient to do 

the job completely. He still needed to use his car to do his 

job, such as when he planned to visit a crime scene or client 

in jail. 

Prigo first used public transportation for his commute

when he lived in Rancho Cucamonga and was assigned to 

the public defender’s office in downtown Los Angeles in 

1985. He took public transportation to downtown Los 

Angeles from 1985 to 1996, including after he became a 

Public Defender Grade IV in 1988. He had a heavy caseload 

of felony trials and was qualified to work on special 

circumstances cases. The number of days per month that he 

took the bus varied. He knew in advance when he would 

need to use his car for work, so he drove to work on those 

days. He drove to work if he was in trial, because he might 

need to stay late at the office to do legal research or go 

somewhere to look at something that came up during trial. 

When he was in trial, he might work 16-hour days. Public 

defenders were also expected to attend educational meetings 

held downtown on Wednesday nights, so he often drove to 

6
work on those days to socialize after the meeting without 

missing the last bus. 

Prigo was living in Pasadena when he was assigned to 

the Norwalk Courthouse in 2006. He took a Metro rail line

from Pasadena and other public transportation to reach the 

Norwalk Courthouse. He did not take public transportation

every day, but it was a good option. Prigo still needed to use 

his car to perform tasks outside the Norwalk Courthouse. 

He knew in advance if he needed his car for work on a 

particular day. If he was going to another location, such as a 

crime scene, branch court, or jail, he would use his car to 

commute to work. He used the Metro system to commute 

until he moved to Lakewood. 

In 2008, Prigo loaned his car to his son for a semester 

of school. A public defender named Mark DiSabatino gave

Prigo a ride to and from work for two or three months. His 

brother-in-law lent him a truck on days that Prigo needed a

vehicle. It did not occur often, but Prigo would drive his 

brother-in-law to work, then drive himself to the Norwalk 

Courthouse. In February 2013, at the time of the accident, 

Prigo lived in Long Beach. There was no practical public 

transportation from Long Beach to Norwalk. If there had 

been reasonable public transportation to get from Long 

Beach to Norwalk, he would have used it. 

Prigo turned in a mileage request claim to his 

supervisor Anthony Patalano seeking reimbursement for six 

jail visits in May 2012 in a potential death penalty case. 

After Prigo resolved the potential death penalty case in 

7
August 2012, his practice slowed down and he did not leave 

the office for work purposes other than appearances in 

branch courts. He may have visited the jails twice between 

August 2012 and the date of the accident in February 2013.

He went to crime scenes a few times between October 2012 

and the accident in February 2013. He did not have any 

other special circumstances cases prior to the accident. 

On February 28, 2013, Prigo had six cases on calendar 

in the Norwalk Courthouse, including two pre-trial 

conferences that were noted on his personal calendar. Prigo 

was preparing for trial, since both cases were set to begin 

trial on March 19, 2013, but cases often settled at pre-trial 

proceedings. The first matter was scheduled for another pretrial conference a few days later. One of the cases on 

calendar was a probation violation. In another, the client 

paid an amount to participate in a diversion program and 

the case was dismissed. Prigo’s clients did not appear in the 

last two matters that he had on calendar. Prigo was 

working on serious felony cases, but he did not have any 

capital or special circumstances cases. He was not in the 

trial rotation. He did not use his car to drive anywhere 

during the work day. 

Prigo left in his car after work to go home. A post office 

was located approximately an eighth of a mile, or a very long 

city block, from the Norwalk Courthouse. Prigo was turning 

in to the post office to mail his rent check when he hit a car 

driven by Kevin Vargas. Vargas was forced off the road and 

injured plaintiff and respondent pedestrian Jake Newland. 

8
Prigo returned to work within a few days of the 

accident, but his car was not driveable. DiSabatino drove

Prigo to and from work while his car was repaired. Prigo 

purchased a new car a few months later.

PROCEDURAL BACKGROUND

On August 12, 2013, Newland filed the operative 

complaint for negligence against Prigo, the County, and 

Vargas. The trial court bifurcated the issues for trial. After 

jury selection, an eight-day trial was held to determine

whether Prigo was expressly or impliedly required to use his 

personal vehicle for work purposes.

The trial court denied the County’s request for jury 

instructions on vicarious liability, including CACI No. 3700 

(introduction to vicarious liability), CACI No. 3701 (essential 

elements of tort liability against a principal), and CACI No. 

3703 (essential elements of tort liability against a principal 

when employment relationship is not in dispute). Each of 

the rejected instructions required the jury to find that Prigo

was acting in the course and scope of his employment when 

the accident occurred. The County objected to the trial 

court’s denial of these instructions. 

The County had also requested standard jury 

instructions based on CACI No. 3723 (substantial deviation) 

and CACI No. 3725 (the vehicle use exception to the goingand-coming rule). The trial court ruled that a combined 

instruction based on CACI Nos. 3723 and 3725 would be 

9
given, followed by a special instruction proposed by

Newland. The County objected to the combined instruction 

and Newland’s special instruction. At the end of the 

presentation of evidence, the trial court granted Newland’s 

motion for a directed verdict on the defense of substantial 

deviation, and the related instruction on substantial 

deviation was deleted.

The sole instruction provided to the jury on vicarious 

liability was in the language of CACI No. 3725 as follows: 

“In general, an employee is not acting within the scope of 

employment while traveling to and from the workplace[.] 

But if an employer requires an employee to drive to and from 

the workplace so that the vehicle is available for the 

employer’s business, then the drive to and from work is 

within the scope of employment. The employer’s 

requirement may be either express or implied. [¶] . . . [¶] 

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. There may 

be a benefit to the employer if: [¶] One, the employee has 

agreed to make the vehicle available as an accommodation to 

the employer, and, [¶] two, the employer has reasonably 

come to rely on the vehicle’s use and expects the employee to 

make it available regularly. [¶] The employee’s agreement 

may be either express or implied.” 

The County proposed several special verdict forms, 

including one which asked, “When the accident occurred on 

February 28, 2013, was Defendant Donald Prigo acting 

10
within the course and scope of his employment?” The trial 

court refused to give any of the County’s special verdict 

forms. The court stated that whether Prigo was acting 

within the course and scope of his employment at the time 

the accident occurred was not an issue in the case. Instead, 

the court selected the special verdict form supplied by 

Newland. Newland’s form asked simply, “Was Donald Prigo 

expressly or impliedly required to use his personal vehicle to 

perform his job for Defendant County of Los Angeles?” If the 

jury answered no, the form asked, “Did the County of Los 

Angeles directly or indirectly benefit from Donald Prigo’s use 

of his personal vehicle?” The County objected to Newland’s 

special verdict form because it did not include the relevant 

time frame or ask the jury to determine whether Prigo 

required his car as of February 28, 2013.

The jury answered the first question on the verdict 

form in the affirmative: it found that Prigo was required to 

use his personal vehicle to perform his job for the County. In 

the second phase of the trial, the jury found that Prigo’s 

negligence caused the accident and awarded damages to 

Newland totaling $13,935,548. On June 23, 2016, the trial 

court entered judgment in favor of Newland and against the 

County in the amount of $13,935,548. 

The County filed a motion for judgment 

notwithstanding the verdict on several grounds, including 

that there was insufficient evidence to support the vehicle 

use exception to the going and coming rule, and the special 

verdict form in the first phase of trial failed to dispose of all 

11
issues in controversy. The County also filed a motion for a 

new trial. The trial court denied both motions. The County 

filed a timely notice of appeal from the judgment and the 

postjudgment order denying judgment notwithstanding the 

verdict. The County filed a separate notice of appeal from a 

postjudgment order awarding costs to Newland. The appeals 

have been consolidated for all purposes.

DISCUSSION

Standard of Review

“‘The trial court’s power to grant a motion for judgment 

notwithstanding the verdict is the same as its power to grant 

a directed verdict. (Code Civ. Proc., § 629.) “A motion for 

judgment notwithstanding the verdict may be granted only if 

it appears from the evidence, viewed in the light most 

favorable to the party securing the verdict, that there is no 

substantial evidence in support.” [Citations.] On appeal 

from the denial of a motion for judgment notwithstanding 

the verdict, we determine whether there is any substantial 

evidence, contradicted or uncontradicted, supporting the 

jury’s verdict. [Citations.] If there is, we must affirm the 

denial of the motion. [Citations.]’ (Wolf v. Walt Disney 

Pictures & Television (2008) 162 Cal.App.4th 1107, 1138; 

accord, Sweatman v. Department of Veterans Affairs (2001) 

25 Cal.4th 62, 68 [‘As in the trial court, the standard of 

review is whether any substantial evidence—contradicted or 

12
uncontradicted—supports the jury’s conclusion.’].) For 

evidence to be substantial, it must be of ponderable legal 

significance, reasonable, credible, and of solid value. (Kuhn 

v. Department of General Services (1994) 22 Cal.App.4th 

1627, 1633.) The ‘focus is on the quality, not the quantity, of 

the evidence.’ (Toyota Motor Sales U.S.A., Inc. v. Superior 

Court (1990) 220 Cal.App.3d 864, 871.) We resolve all 

evidentiary conflicts and indulge all reasonable inferences in 

support of the judgment. (Leung v. Verdugo Hills Hospital

(2012) 55 Cal.4th 291, 308.)” (Jorge v. Culinary Institute of 

America (2016) 3 Cal.App.5th 382, 396 (Jorge).)

Vicarious Liability for Accident During Commute

The County contends there is no evidence that Prigo 

was driving his car within the course and scope of his 

employment when the accident occurred. We agree. In 

order for Prigo’s commute to come within the course and 

scope of his employment, the County must have required 

him to drive his car or otherwise benefitted from Prigo 

having his car available for work purposes that day. There 

is no evidence that Prigo was commuting in his car at the 

time of the injury because the County required him to have 

his car available, or that his commute provided any other 

benefit to the County that day. The evidence is insufficient 

to support the judgment.

13
A. Rationale for Respondeat Superior

Under the doctrine of respondeat superior, an employer 

is vicariously liable for an employee’s tortious conduct within 

the scope of employment. (Jorge, supra, 3 Cal.App.5th at 

p. 396.) The employer is liable not because it controls the 

employee’s actions or has any fault, “‘but because the 

employer’s enterprise creates inevitable risks as a part of 

doing business. [Citations.]’ [Citation.]” (Halliburton 

Energy Services, Inc. v. Department of Transportation (2013) 

220 Cal.App.4th 87, 94.) “‘“The losses caused by the torts of 

employees, which as a practical matter are sure to occur in 

the conduct of the employer’s enterprise, are placed upon 

that enterprise itself, as a required cost of doing business.

They are placed upon the employer because, having engaged 

in an enterprise which will, on the basis of past experience, 

involve harm to others through the torts of employees, and 

sought to profit by it, it is just that he, rather than the 

innocent injured plaintiff, should bear them; and because he 

is better able to absorb them, and to distribute them, 

through prices, rates or liability insurance, to the public, and 

so to shift them to society, to the community at large.”’ 

(Hinman v. Westinghouse Elec. Co. (1970) 2 Cal.3d 956, 959–

960 (Hinman), quoting Prosser, Law of Torts (3d ed. 1964) 

p. 471; accord, Lisa M. v. Henry Mayo Newhall Memorial 

Hospital (1995) 12 Cal.4th 291, 304 [policy goals of the 

doctrine are ‘preventing future injuries, assuring 

compensation to victims, and spreading the losses caused by 

14
an enterprise equitably’]; Farmers Ins. Group v. County of 

Santa Clara (1995) 11 Cal.4th 992, 1004 [‘central 

justification for respondeat superior’ is that ‘losses fairly 

attributable to an enterprise—those which foreseeably result 

from the conduct of the enterprise—should be allocated to 

the enterprise as a cost of doing business’].)” (Jorge, supra, 3 

Cal.App.5th at pp. 396–397.)

B. No Liability for Commute

An employee’s commute to and from the workplace is 

generally not considered to be within the course and scope of 

employment. “While an employer’s vicarious liability for the 

torts of its employees is well established, courts have 

recognized that an employee’s commute ‘to and from work is 

ordinarily considered outside the scope of employment so 

that the employer is not liable for [the employee’s] torts’

committed during the employee’s commute. (Hinman, 

supra, 2 Cal.3d at p. 961; Anderson v. Pacific Gas & Electric 

Co. (1993) 14 Cal.App.4th 254, 258 (Anderson) [employee is 

not acting within the scope of employment when going to or 

coming from his or her place of work]; Tryer v. Ojai Valley 

School (1992) 9 Cal.App.4th 1476, 1481 (Tryer) [employer is 

generally not responsible for torts committed by an employee 

who is going to or coming from work].) This rule, commonly 

referred to as the ‘going and coming rule,’ is grounded in the 

notion that ‘“the employment relationship is ‘suspended’

from the time the employee leaves until he returns [citation], 

15
or that in commuting he is not rendering service to his 

employer.”’ (Tryer, supra, 9 Cal.App.4th at p. 1481, quoting 

Hinman, supra, 2 Cal.3d at p. 961; Baptist v. Robinson

(2006) 143 Cal.App.4th 151, 162 [employee is not ordinarily 

rendering a service to the employer while commuting]; 

Blackman v. Great American First Savings Bank (1991) 233 

Cal.App.3d 598, 602 (Blackman) [‘employment relationship 

is suspended from the time the employee leaves his place of 

work until he returns’].)” (Jorge, supra, 3 Cal.App.5th at 

p. 397.)

C. Required Vehicle Exception

There are exceptions to the going and coming rule 

which hold an employer liable for an employee’s conduct 

during his or her commute. (Hinman, supra, 2 Cal.3d at 

p. 962.) Exceptions are made “where the trip involves an 

incidental benefit to the employer, not common to commute 

trips by ordinary members of the work force.” (Id. at p. 962; 

Hinojosa v. Workmen’s Comp. Appeals Bd. (1972) 8 Cal.3d 

150, 157 (Hinojosa).) “[T]his means not just any trivial 

benefit to the employer, but a benefit ‘sufficient enough to 

justify making the employer responsible for the risks 

inherent in the travel.’ (Blackman, supra, [223 Cal.App.3d] 

at p. 604.)” (Jorge, supra, 3 Cal.App.5th at pp. 397–398.)

The California Supreme Court recognized the required 

vehicle exception to the coming and going rule in Smith v. 

Workmen’s Comp. App. Bd. (1968) 69 Cal.2d 814 (Smith), 

16
holding that an employee is acting in the course of 

employment during his or her commute when the employer 

requires the employee to bring a car to work. The employee 

in Smith was a county social worker who was killed in a car 

accident while driving to work. (Id. at p. 815.) The evidence 

showed that the social worker was required to have a car

available for client visits on field days and for emergency 

visits on regular office days. (Id. at p. 816.) If an employee’s 

car was unavailable, the county would provide a car on 

request, but the social worker had never requested the use of

a county car. (Ibid.) This evidence compelled finding that 

the employer required the employee to bring his car to work 

on the morning of the accident. (Ibid.) 

The Smith court noted that an employee “‘is 

performing service growing out of and incidental to his 

employment’ (Lab. Code, § 3600)” under the worker’s 

compensation statutes when the employee “engages in 

conduct reasonably directed toward the fulfillment of his 

employer’s requirements, performed for the benefit and 

advantage of the employer.” (Smith, supra, 69 Cal.3d at 

pp. 819–820.) The court concluded that a requirement to

provide a car for work purposes limited the going and coming 

exclusion. (Id. at p. 820.) The employment relationship 

resumes “when the employer requires that the employee 

engage in conduct, whether prior to the workday or after it, 

whether on the premises of that employer or away from 

them, that inures to the benefit of the employer.” (Ibid.) 

“[T]he employer instructed [the employee] to have his car 

17
available on the job every morning. In driving the car to and 

from work, [the employee] carried out this order in a 

reasonable and normal manner, acquiesced in by his 

employer. Accordingly, even though [the employee’s] 

employment contract said nothing about the manner of his 

transit to the job, he nevertheless acted within the course of 

his employment in thus furnishing his own car.” (Id. at 

p. 821.)

Similarly in Hinojosa, supra, 8 Cal.3d 150, the 

Supreme Court found the going and coming rule did not bar 

recovery, because the employer required employees to 

provide vehicles for transportation at work every day. 

Hinojosa worked as a farm laborer. (Id. at p. 152.) When 

employees finished work at one ranch, the foreman assigned

the workers to another ranch operated by the same 

employer. On any particular day, Hinojosa did not know in

which field he would be working or the duration of the work 

to be done on that field. (Ibid.) Because of the nature of the 

work, employees were required to provide their own vehicles 

for transportation between fields during the work day.

(Ibid.) Hinojosa did not own a car, so he paid another 

worker for transportation. (Id. at pp. 152–153.) He was 

injured in an accident on the commute home. (Id. at p. 153.) 

The Supreme Court distilled a formula from the case 

law to determine whether the coming and going rule applied

in worker’s compensation cases. Injuries were noncompensable when they occurred “during a local commute 

enroute to a fixed place of business at fixed hours in the 

18
absence of special or extraordinary circumstances. The 

decisions have thereby excluded the ordinary, local commute 

that marks the daily transit of the mass of workers to and 

from their jobs; the employment, there, plays no special role 

in the requisites of portage except the normal need of the 

presence of the person for the performance of the work.” 

(Hinojosa, supra, 8 Cal.3d at p. 157.) In contrast were 

“extraordinary transits that vary from the norm because the 

employer requires a special, different transit, means of 

transit, or use of a car, for some particular reason of his own. 

When the employer gains that kind of particular advantage, 

the job does more than call for routine transport to it; it 

plays a different role, bestowing a special benefit upon the 

employer by reason of the extraordinary circumstances. The 

employer’s special request, his imposition of an unusual 

condition, removes the transit from the employee’s choice or 

convenience and place it within the ambit of the employer’s 

choice or convenience, restoring the employer-employee 

relationship.” (Ibid.) In cases where an employee was 

expressly or impliedly required to bring a means of 

transportation to the job, “‘the obligations of the job reach 

out beyond the premises, making the vehicle a mandatory 

part of the employment environment, and compel the 

employee to submit to the hazards associated with private 

motor travel, which otherwise he would have the option of 

avoiding. Since this is the theory, it is immaterial whether 

the employee is compensated for the expenses of the trip.’ (1 

19
Larson, The Law of Workmen’s Compensation [(1968)] §

17.50.)” (Id. at p. 160.) 

Based on the facts of Hinojosa, the court held: “[T]he 

instant case clearly differs from the normal routine 

commute; it is instead the extraordinary situation in which 

the job is structured, and dependent upon, transportation 

from one place of work to another so that the use of an 

instrument of such transportation is a requisite of 

employment. The employer could have provided, at his own 

expense, company vehicles to transport the workers between 

his various farms during their workday. His failure to do so 

made it necessary for the workers to supply their own onthe-job transportation. Thus [Hinojosa] made use of the car 

from his residence to the first ranch, and thereafter from 

ranch to ranch and finally from ranch to his residence 

because the car was an essential requirement of the job; the 

presence of the car was requisite to performance of the job; 

the worker was impliedly required to bring the car to the job 

and to take it from the job. Thus the injury suffered in the

car was covered by the Workmen’s Compensation Act.” 

(Hinojosa, supra, 8 Cal.3d at p. 162.) Hinojosa’s injuries as a 

passenger in the vehicle were compensable because he was 

required to supply a vehicle for work, and employees who are 

injured in the same car accident under identical employment 

circumstances are not treated differently based on the 

ownership of the car. (Id. at p. 162.)

The test for liability under worker’s compensation law, 

which requires finding “at the time of the injury, the 

20
employee is performing service growing out of and incidental 

to his or her employment and is acting within the course of 

his or her employment” (Lab. Code, § 3600, subd. (a)(2)), is 

not identical to the test for liability under the respondeat 

superior doctrine based on “scope of employment.” (Hinman, 

supra, 2 Cal.3d at p. 962, fn. 3.) The tests are closely 

related, because they both consider the benefit to the 

employer and the allocation of risk for industrial injuries. 

(Ibid.) Worker’s compensation provisions are construed 

liberally, however, to protect employees, and courts have 

been generous in finding injured workers entitled to benefits. 

(Jorge, supra, 3 Cal.App.5th at pp. 398–399, fn. 7.) Although 

California courts look to worker’s compensation cases for 

guidance, the scope of employment for imposing vicarious 

liability is more restrictive in tort claims based on the 

differing policy considerations. (Ibid.)

Courts have applied the required vehicle exception to 

hold an employer vicariously liable when the facts show an

employee was required to bring a car to work every day or on 

the day of the accident. In Hinman, supra, 2 Cal.3d 956, an 

employee’s contract required the employer to pay “carfare” 

and travel time under certain circumstances, depending on 

the location of the job site. (Id. at p. 959.) The employee 

injured a third party on his way home from a job site which 

qualified for the payment of travel time and expenses. The 

Hinman court reasoned that paying travel time and 

expenses allowed the employer to locate its enterprise at a 

remote place and enlarge the available labor market, but it 

21
also increased the risk of injury during transportation. (Id.

at p. 962.) The court concluded that when travel time is part 

of the working day by contract, “the employer should be 

treated as such during the travel time, and it follows that so 

long as the employee is using the time for the designated 

purpose, to return home, the doctrine of respondeat superior

is applicable.” (Ibid.) Since the employee injured the third 

party during paid travel time, the employer was vicariously 

liable as a matter of law. (Id. at p. 963.)

The required vehicle exception was similarly applied in

Huntsinger v. Glass Containers Corp. (1972) 22 Cal.App.3d 

803 (Huntsinger), when an employee was required to bring a 

car to work every day to have it available for work purposes. 

Service representative Edward Fell had daily contact with 

customers “not only by telephone but in person at the 

customers’ plants as the need arose. Thus, Fell performed 

his duties both in the company office and in the field. Many 

of his field trips were unplanned and unpredicted. He was 

not required to punch a timeclock at the office, nor was he 

required to sign in or out.” (Id. at p. 806.) On the day of the 

accident, Fell drove his car from his office to a customer’s 

plant and back to the office. While driving home from the 

office later that day, he killed a motorcyclist. The court 

reasoned that “ordinary members of [an employer’s] work 

force would not be required to use their vehicles in company 

business and would not, therefore, be required to drive their 

vehicles to and from work. The means by which they travel 

to and from work is a matter of complete indifference to [the 

22
employer].” (Id. at p. 810.) When an employer requires an 

employee to have a personal vehicle available at work, 

however, the employee’s commute to and from the workplace 

in that vehicle is “incidentally beneficial to [the employer] in 

a manner not common to commute trips by ordinary 

members of its work force. In other words, when a business 

enterprise requires an employee to drive to and from its 

office in order to have his vehicle available for company 

business during the day, accidents on the way to or from the 

office are statistically certain to occur eventually, and, the 

business enterprise having required the driving to and from 

work, the risk of such accidents are risks incident to the 

business enterprise.” (Ibid.) The appellate court concluded 

there was substantial evidence from which a jury could find

that “Fell was acting within the scope of his employment at 

the time of the accident.” (Ibid.)

The required vehicle exception may apply when an 

employee is required to bring a car daily to have it available

for work, even if the employee rarely has to use the car for 

work purposes. In Lobo v. Tamco (2010) 182 Cal.App.4th 

297 (Lobo I), the appellate court reversed a summary 

judgment in favor of employer Tamco, concluding there was 

a triable issue of material fact as to whether the required 

vehicle exception applied. Tamco employee Luis Duay Del 

Rosario was commuting home when he killed a deputy 

sheriff. (Id. at pp. 299, 301.) The plaintiff presented 

evidence that Del Rosario’s job description required him to 

answer customer complaints, and if necessary, to visit 

23
customer sites. (Id. at pp. 301–302.) Tamco did not provide 

a company car. Del Rosario usually rode in a sales 

engineer’s car to a customer site, but he occasionally used 

his own car if no sales engineer was available. (Id. at 

p. 302.) During the 16 years that he worked at Tamco, he 

used his own car to visit customer sites no more than 10 

times and had been reimbursed for expenses. (Ibid.) Del 

Rosario was on his way home when he left Tamco on the day 

of the accident, but he would have used his car to visit a 

customer site if he had been asked. (Ibid.) 

The Lobo I court found the evidence “clearly sufficient 

to support the conclusion that Tamco requires Del Rosario to 

make his car available whenever it is necessary for him to 

visit customer sites and that Tamco derives a benefit from 

the availability of Del Rosario’s car.” (Lobo I, supra, 182 

Cal.App.4th at p. 302.) The frequency of the employee’s use 

of the personal vehicle was not determinative. Instead, the 

issue depended on “whether the employer expressly or 

implicitly required the employee to make the vehicle 

available or has reasonably come to expect that the vehicle 

will be available for work purposes and whether the 

employer derived a benefit from the availability of the 

vehicle. [Citations.] If the employer requires or reasonably 

relies upon the employee to make his personal vehicle 

available to use for the employer’s benefit and the employer 

derives a benefit from the availability of the vehicle, the fact 

that the employer only rarely makes use of the employee’s 

personal vehicle should not, in and of itself, defeat the 

24
plaintiff’s case. Here, [Del Rosario’s supervisor] testified 

that Tamco required Del Rosario to make his car available 

rather than providing him with a company car in part 

because the need arose infrequently. Thus, the availability 

of Del Rosario’s car provided Tamco with both the benefit of 

insuring that Del Rosario could respond promptly to 

customer complaints even if no sales engineer was available 

to drive him to the customer’s site and the benefit of not 

having to provide him with a company car. Based on this 

evidence, a reasonable trier of fact could find that the 

‘required-vehicle’ exception does apply.” (Id. at p. 303.)1

Courts have declined to apply the required vehicle 

exception when evidence showed the employee was not 

required to drive a personal vehicle to work on the date of 

the accident, even when the employee had used the vehicle 

for work purposes at other times. In Ducey v. Argo Sales Co.

1 We note that on remand, the jury found the required 

vehicle exception did not apply. (Lobo v. Tamco (2014) 230 

Cal.App.4th 438, 440–441 (Lobo II).) Del Rosario’s 

supervisor had stated in deposition testimony that Del 

Rosario was required to make his personal car available to 

visit customer sites whenever the need arose, which was 

sufficient to create a triable issue of fact in Lobo I. (Id. at p. 

444.) At trial, the supervisor stated his deposition testimony 

was in error. Tamco did not rely on Del Rosario making his 

car available and did not receive any benefit if Del Rosario 

used his own car to visit a customer’s site. (Id. at pp. 444–

445.) The Lobo II court found substantial evidence 

supported the judgment in favor of Tamco. (Id. at p. 441.)

25

 
(1979) 25 Cal.3d 707, the Supreme Court found employee

Dolores Glass was not required to use her personal vehicle 

as a condition of her employment, and therefore, was not 

acting in the course and scope of her employment at the time 

that she was involved in a car accident. (Id. at p. 721.) 

Glass cleaned model homes in San Jose, Alameda, and 

Union City. She drove from her home to the model homes, 

which were up to 45 miles away, several days per week. 

Glass was returning home from cleaning a model home when 

she was involved in an accident. The Supreme Court

concluded, “The evidence does not establish as a matter of 

law that the company required Glass, as a condition of her 

employment, to commute to work in her personal car. The 

job was not one that embraced driving, and Glass was not 

required to use her vehicle for field work. Although there 

was evidence that she occasionally ran errands for her 

employer, these trips were not conclusively shown to be a 

condition of her employment. The jury could reasonably 

have believed that Glass was acting as a volunteer in 

running occasional errands for replacement items. She was 

not engaged in such an errand at the time of the accident. 

There is no evidence that Glass was required to go from 

location to location during the day. [Citation.]” (Id. at 

p. 723.)

In Jorge, supra, 3 Cal.App.5th 382, the appellate court 

refused to impose liability on an employer for an accident 

that occurred during an employee’s commute home from his 

regular work duties, even though there was evidence that 

26
the employee frequently drove his personal vehicle in 

connection with extraordinary work duties. In the trial 

court, the jury found employee Almir Da Fonseca to be

acting in the scope of his employment for the Culinary 

Institute of America when he struck pedestrian Jorge on his 

drive home. (Id. at p. 387.) In reversing the judgment, the

appellate court acknowledged extensive evidence that Da 

Fonseca drove his personal vehicle to and from off-campus 

commitments, but the court declined to hold the Institute

vicariously liable for an accident that occurred when he was 

simply commuting from his regular work site. (Id. at 

pp. 402–403.) Da Fonseca’s primary job duty as a chef 

instructor for the Institute was to teach courses. (Id. at 

p. 388.) He drove his personal car to work at the Institute, 

but he could have carpooled, gotten a ride, or taken public 

transportation. (Id. at p. 389.) In addition to regular 

classes, Da Fonseca taught specialized classes. Chef 

instructors could assist with events, conferences, and 

retreats. The instructors who could travel, including Da 

Fonseca, provided consulting services. They provided 

consultation services at the Institute or the client’s business. 

In addition, Da Fonseca conducted research in Brazil for 

several weeks. The Institute paid his salary while he was in 

Brazil and promoted his findings. 

The Institute paid for Da Fonseca’s travel time when a 

trip involved a substantial amount of travel, and paid for 

mileage when he drove to work locations away from the 

Institute. (Jorge, supra, 3 Cal.App.5th at p. 392.) For 

27
consulting locally, a chef instructor could rent a car, take 

public transportation, carpool, or take a personal vehicle. 

(Id. at p. 392–393.) If the travel required taking a flight, Da 

Fonseca drove to the airport or got a ride from his wife. Da 

Fonseca used his car on many occasions to get to jobs away 

from the Institute. (Id. at p. 393.) The Institute also 

provided jackets and paid for dry cleaning at a particular dry 

cleaner. (Id. at 395.) On the day of the accident in Jorge, Da 

Fonseca drove to the Institute, taught classes, and drove 

home with a few dirty chef’s jackets and a set of knives in 

the car. (Id. at p. 388.) He did not intend to go to the dry 

cleaner that day. 

Based on this evidence, the Jorge court found that “Da 

Fonseca did not need a car for any purpose on the days he 

fulfilled his regular chef instructor duties at the St. Helena 

campus. He testified that he commuted from home to the 

campus and back in his car as a matter of convenience, but 

he could have taken public transportation, carpooled, or been 

dropped off.” (Jorge, supra, 3 Cal.App.5th at p. 402.) 

“[E]ven if there were substantial evidence that Da Fonseca 

was impliedly required to drive his car to off-campus events 

or that he agreed to make his car available for off-campus 

events as an accommodation to the Culinary Institute and 

the Institute came to rely on it—which there was not—there 

is no authority holding that such evidence took Da Fonseca’s 

ordinary commute to and from the St. Helena campus 

outside the going and coming rule. In short, the accident 

here occurred when Da Fonseca was simply commuting 

28
home from a day of performing his regular duties as a chef 

instructor at the St. Helena campus, a commute that lacked 

any imaginable connection to the performance of his duties 

at the Culinary Institute.” (Id. at p. 406.)

D. Application of the Vehicle Use Exception

In order to apply the vehicle use exception to the 

coming and going rule in this case, Newland had to show 

that (1) the County required Prigo to drive his car to and 

from the workplace at the time of the accident, or (2) Prigo’s 

use of his car provided a benefit to the County at the time of 

the accident. A benefit to the County may be found if at the 

time of the accident, Prigo agreed to make his car available, 

the County reasonably came to rely on Prigo’s use of the car, 

and the County expected Prigo to make it available. There 

was no evidence in this case to support finding a job 

requirement or a benefit to the County on the day of the 

accident.

First, there was no evidence to support that Prigo was 

required to drive to or from work on the date of the accident. 

Prigo 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 

29
scheduled outside the workplace, he used public 

transportation to commute to work. If reasonable public 

transportation had been available from his home in Long 

Beach, he would have used it. He did not have any job 

duties outside the workplace scheduled for the day of the 

accident, and he did not use his car for work purposes that 

day. Prigo never had emergency situations that required the 

use of his car during the day for work, except when he was in 

trial. In short, he did not need his car for work purposes on 

the day of the accident. Prigo was driving a normal, routine 

commute at the time of the accident from a fixed place of 

business to home. (Hinojosa, supra, 8 Cal.3d at p. 157.) He 

could have carpooled, been dropped off, or taken public 

transportation if it were available. Prigo’s conduct in driving 

to and from work on the day of the accident was not 

“reasonably directed toward the fulfillment of his employer’s 

requirements” or “performed for the benefit and advantage 

of the employer.” (Smith, supra, 69 Cal.2d at pp. 819–820.) 

It was not an extraordinary situation in which his work 

depended upon transportation from one place of work to 

another. There was no evidence to support finding that the 

County directly or indirectly required Prigo to drive to work 

on the day of the accident in order to have his car available 

for the County’s business.

Second, Newland contends that the case should be 

remanded to consider whether Prigo’s use of his car provided 

a direct or incidental benefit to the County. There is no 

evidence, however, to support finding that the County 

30
received any benefit from Prigo’s use of his car at the time of 

the accident. A trier of fact could certainly conclude from the 

evidence that when Prigo had job duties outside the 

workplace, he made his car available as an accommodation 

to the County, and the County reasonably came to rely on 

Prigo’s use of his vehicle to complete those tasks. There was 

no evidence, however, that the County relied on or expected 

Prigo to make his car available on days that he did not have 

outside tasks. In fact, the evidence was that Prigo 

commuted to work for years by bus, Metro train, and carpool 

on days that he did not have any duties outside the 

workplace. When Prigo drove his car, it was available to him 

for work purposes. But Prigo had discretion to determine 

when he needed to drive to a location for work, and he knew 

in advance when he needed a car for work purposes. He did 

not have emergencies that required him to immediately 

perform job duties outside the workplace, and there was no 

evidence that he had ever been directed to immediately 

perform a task. There is no evidence to support finding that 

the County received a benefit from the availability of Prigo’s

car on the day of the accident. Since Prigo was not required 

to drive to work on the day of the accident, and his use of his 

car that day did not otherwise provide a benefit to the 

County, there was no evidence to support finding that Prigo 

was driving in the course and scope of his employment when 

he injured Newland.

The facts of Smith, Hinojosa, Hinman, Huntsinger, and 

Lobo I are distinguishable, because in each of those cases, 

31
the employee was required to drive to work on the day of the 

accident or was providing a benefit to the employer every 

time that the employee had a car available at work. In 

contrast, Prigo was not required to drive his car every day or 

on the day of the accident, and his use of his car that day did 

not provide a benefit to the County.

Our conclusion that an employee must be driving in 

the course and scope of employment at the time of the 

accident for the vehicle use exception to apply is supported 

by the language of the worker’s compensation statute from 

which it was derived in Smith. Labor Code section 3600, 

subdivision (a)(1) provides that an employee must have been 

acting within the course of his or her employment “at the 

time of the injury” to be entitled to compensation. CACI 

instructions on vicarious liability and the tort liability of a 

principal also require finding an employee was acting in the 

course and scope of employment when the accident occurred. 

(CACI No. 3700 [introduction to vicarious liability]; CACI 

No. 3701 [essential elements of tort liability against a 

principal]; CACI No. 3703 [essential elements of tort liability 

against a principal when employment relationship is not in 

dispute].)

The policy factors underlying the doctrine of 

respondeat superior do not dictate its application in this 

case. “Those policy factors are ‘(1) to prevent recurrence of 

the tortious conduct; (2) to give greater assurance of 

compensation for the victim; and (3) to ensure that the 

victim’s losses will be equitably borne by those who benefit 

32
from the enterprise that gave rise to the injury.’ [Citation.] 

These factors do not constitute the legal standard for 

respondeat superior liability, but they provide guidance to 

the courts in considering whether the doctrine should be 

applied. [Citation.]” (Kephart v. Genuity, Inc. (2006) 136 

Cal.App.4th 280, 296 (Kephart).)

Holding the County liable on the facts of this case 

would not prevent recurrence of the tortious conduct. For

example, if the County provided vehicles for public defenders 

to use during the workday for their duties outside the office, 

it would not reduce the occurrence of this type of accident, 

because Prigo did not require a vehicle at work on the day of 

the accident, he did not have emergencies at work that 

required the use of a vehicle immediately, and his commute 

that day was not related to his work duties outside the office. 

He drove to the Norwalk Courthouse on the day of the 

accident because he did not have any reasonable public 

transportation options from Long Beach.

“From the perspective of a plaintiff, imposition of 

vicarious liability would always serve the policy of giving 

greater assurance of compensation to the victim. But 

respondeat superior liability is not ‘merely a legal artifice 

invoked to reach a deep pocket or that it is based on an 

elaborate theory of optimal resource allocation.’ (Alma W. v. 

Oakland Unified School Dist. (1981) 123 Cal.App.3d 133, 

143–144.) The second and third policy factors are 

inextricably bound together (Le Elder v. Rice (1994) 21 

Cal.App.4th 1604, 1610; Alma W. v. Oakland Unified School 

33
Dist., supra, 123 Cal.App.3d at pp. 143–144) and vicarious 

liability is invoked to provide greater assurance of 

compensation to victims in circumstances where it is 

equitable to shift losses to the employer because the 

employer benefits from the injury-producing activity and 

such losses are, as a practical matter, sure to occur from the 

conduct of the enterprise. (Le Elder v. Rice, supra, 21 

Cal.App.4th at p. 1610; Alma W. v. Oakland Unified School 

Dist., supra, 123 Cal.App.3d at p. 144.)” (Kephart, supra,

136 Cal.App.4th at p. 297.)

Prigo’s accident during his commute on a day that he 

did not need his car for work purposes was no more likely to 

occur from the County’s enterprise than other fixed places of 

business in the conduct of their enterprise. The County did 

not derive any benefit from Prigo’s conduct at the time of the 

accident. Public policy does not support imposing liability on 

the County for the tortious conduct of an employee who was 

not driving in the course and scope of his employment at the 

time of the accident.

There was no evidence that Prigo required a vehicle for 

work on the day of the accident, and no evidence that the 

County received any direct or incidental benefit from Prigo 

driving to and from work that day. It was error to deny the 

motion for judgment notwithstanding the verdict, and the 

judgment must be reversed.

34
DISPOSITION

The judgment and the order denying the County’s 

motion for judgment notwithstanding the verdict are 

reversed. The trial court is directed to enter a new and 

different order granting the motion for judgment 

notwithstanding the verdict. Respondent County of Los 

Angeles is awarded its costs on appeal.

KRIEGLER, Acting P.J.

I concur:

KIM, J.∗

∗ Judge of the Los Angeles Superior Court, assigned by 

the Chief Justice pursuant to article VI, section 6 of the 

California Constitution.

35

 
Jake Newland v. County of Los Angeles

B277638

BAKER, J., Dissenting

Sufficiently 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,” as the majority today holds. (Lobo v. Tamco

(2010) 182 Cal.App.4th 297, 302-303 [evidence that “[d]uring 

2005, the year of the accident, [the employee] visited 

customer sites [using his own car only] five times or fewer” is 

sufficient to support a conclusion the vehicle use exception 

applies even though the employee’s accident occurred during 

his commute home on a day the vehicle was not needed for 

the employer]; see also Ducey v. Argo Sales Co. (1979) 25 

Cal.3d 707, 723 [mere fact that employee was not engaged in 

an errand for the employer on the day of the accident not 

treated as dispositive; Court further relies on facts showing 

the employee’s “occasional[ ]” errands for her employer “were 

not conclusively shown to be a condition of her employment” 

to hold the vehicle use exception inapplicable]; Zhu v. 

Workers’ Comp. Appeals Bd. (2017) 12 Cal.App.5th 1031, 

1041 [“[employee’s] transit bestowed a direct benefit on 
[employer], as [employer] knew that [employee] had to 

transit between homes to service more than one home a 

day”]; compare, e.g., Pierson v. Helmerich & Payne Internat. 

Drilling Co. (2016) 4 Cal.App.5th 608, 629 [“Hinojosa [v. 

Workmen’s Comp. Appeals Bd. (1972) 8 Cal.3d 150] . . . is 

factually distinguishable because the moves from field to 

field occurred regularly during the course of the workday. In 

this case, the moves were not regular and, as a result, [the 

employee] did not regularly make his vehicle available to 

transport crew members to a new drilling site”].)

Even assuming the majority’s analysis of the express or 

implied requirement justification for applying the vehicleuse 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”], italics added.) There is substantial evidence 

that would support (but certainly not compel) liability on 

that theory, and I therefore dissent from the holding that 

directs the trial court to grant judgment notwithstanding the 

verdict for the County of Los Angeles.

BAKER, J.

2