Jorge v. Culinary Inst. of Am.

• Decision Date: 16 September 2016
• Docket Number: A143545
• Court: California Court of Appeals Court of Appeals
• Parties: Leopoldo JORGE, Jr., Plaintiff and Respondent, v. CULINARY INSTITUTE OF AMERICA, Defendant and Appellant.

3 Cal.App.5th 382

207 Cal.Rptr.3d 586

Leopoldo JORGE, Jr., Plaintiff and Respondent,

v.CULINARY INSTITUTE OF AMERICA, Defendant and Appellant.

A143545

Court of Appeal, First District, Division 2, California.

Filed September 16, 2016

Gordon & Rees, Charles S. Custer, Ryan T. Birmingham, San Francisco; Hayes, Scott, Bonino, Ellingson & McLay, Mark G. Bonino, Redwood City, Gabrielle A. Hollingsworth, for Defendant and Appellant.

Law Office of Edie Sussman, Edie Sussman, Santa Rosa; The Veen Firm, Craig M. Peters, San Francisco, Katherine A. Higgins, David L. Winnett, San Francisco; Wester Law Firm, Barry Wester, Petaluma, for Plaintiff and Respondent.

Richman

, Acting P.J.Respondent Leopoldo Jorge, Jr. (Jorge) sued Almir Da Fonseca (Da Fonseca) and appellant Culinary Institute of America (Culinary Institute or Institute) for injuries sustained when he was struck by a car driven by Da Fonseca, a chef instructor employed by the Culinary Institute. Despite that Da Fonseca had finished his shift at the Culinary Institute and was driving home in his own car at the time of the accident, a jury found the Institute liable for Jorge's injuries on a theory of respondeat superior. The Culinary Institute moved for judgment notwithstanding the verdict on the ground there was no evidence supporting the jury's finding that Da Fonseca was acting in the scope of his employment at the time of the accident. More specifically, it argued that there was no evidence supporting application of the “required vehicle” exception to the “going and coming” rule and so it could not be vicariously liable for Da Fonseca's negligent conduct while he was commuting home from work. The trial court denied the motion.

The Culinary Institute appeals, again arguing that it cannot be liable to Jorge for injuries caused by Da Fonseca's negligence because there was no evidence that at the time of the accident Da Fonseca was acting within the scope of his employment. We agree, and we reverse.

BACKGROUND

The Accident and Jorge's Claims

On February 10, 2010, Da Fonseca drove his car to work to start his shift at the Culinary Institute's campus in St. Helena. At the end of his workday, he left in his car, heading towards his home in Sebastopol. As he was driving down Calistoga Road, he struck two pedestrians, 14–year–old Jorge and his then girlfriend.

Jorge, through his guardian ad litem, filed a complaint for negligence against Da Fonseca. A first amended complaint added a claim against the Culinary Institute based on a respondeat superior theory.¹

The Motion for Summary Judgment

On July 20, 2012, the Culinary Institute moved for summary judgment on the ground that it could not be vicariously liable under the respondeat superior doctrine for damages caused by Da Fonseca's negligent conduct, because he was not acting in the scope of his employment at the time of the accident. The trial court denied the motion in an order that stated in its entirety:

“Defendant Culinary Institute of America's motion for summary judgment is hereby denied. However thin the evidence, there remains a triable issue of fact as to the issue of whether Defendant Da Fonseca was in the course and scope of his duties for Defendant Culinary Institute of America when the accident occurred.

“ ‘The respondeat superior doctrine is to be given a broad application as the Supreme Court explained in Farmer 's [Farmers] Ins. Group v. County of Santa Clara (1995) 11 Cal.4th 992 [47 Cal.Rptr.2d 478, 906 P.2d 440]

. “For example, the fact that an employee is not engaged in the ultimate object of his employment at the time of his wrongful act does not preclude attribution of liability to an employer.’ Thus, acts necessary to the comfort, convenience, health and welfare of the employee while at work, though strictly personal and not acts of service, do not take the employee outside the scope of employment. Moreover, ‘where the employee is combining his own business with that of his employer, or attending to both at substantially the same time, no nice inquiry will be made as to which business he was actually engaged in at the time of the injury, unless it clearly appears that neither directly nor indirectly could he have been serving his employer.’ Jeewarat v. Warner Bros. Entertainment, Inc. (2009) 177 Cal.App.4th 427, 434

.

“Whether there is an exception to the ‘going and coming’ rule remains, as do consideration of the other salient parameters of respondeat superior as they relate to this case, the province of factual determination by a jury. However[ ] stretched and tortured the logic of the ‘dirty uniforms' and chef's knives may be, these factors cannot be ruled out as a matter of law.”²

Trial

Prior to the commencement of trial, the court ordered the issues of liability and damages bifurcated, with the issues of negligence and vicarious liability tried first.

The first phase of trial began on July 11, 2014. At the conclusion of closing arguments, the Culinary Institute moved for a directed verdict on the ground Jorge failed to present sufficient evidence to support his respondeat superior theory. The court denied the motion, ruling that the application of the required vehicle exception remained a question of fact for the jury.

During jury instructions, the jury was instructed on the going and coming rule and the required vehicle exception. Specifically, the court instructed: “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 expect the employee to make it available regularly. The employer's agreement may be either expressed or implied.”³

The jury was also instructed on the transport of an employee's tools, as follows: “The fact that an employee took his or her tools home every night, does not make the use of his or her car a condition of employment or constitute such a special advantage or service to his or her employer as to extend the employment relation off the job site.”

On August 1, the jury reached a verdict in the liability phase of the trial, finding that Da Fonseca was negligent and that he was acting within the scope of his employment by the Culinary Institute when he injured Jorge. The jury found that Jorge was not negligent.

After the verdict on liability, Jorge settled his action against Da Fonseca for $30,000, resulting in Da Fonseca's dismissal. The damage phase thus proceeded only as to the Culinary Institute, and on August 19, the jury awarded Jorge $885,083.

On September 4, the court entered judgment to that effect, and notice of entry of judgment was filed the following day.

The Motion for Judgment Notwithstanding the Verdict

On September 19, the Culinary Institute moved for judgment notwithstanding the verdict, arguing that the evidence was insufficient to support the jury's finding that Da Fonseca was acting in the scope of his employment at the time of the accident. The court denied the motion.

The Culinary Institute appeals from the judgment and the denial of its motion for judgment notwithstanding the verdict.

EVIDENCE AT TRIAL

Da Fonseca and the Culinary Institute

The Culinary Institute is a non-profit culinary educational institute with its main campus in New York City and branches in St. Helena (known as Greystone) and other locations. It offers a two-year associate degree program and provides educational opportunities in the culinary arts to students, professional chefs, and other clients, including businesses, schools, universities, public and private companies, wineries, and more.

Da Fonseca is a native of Brazil. His culinary experience includes work as a chef instructor at the Cordon Bleu and as an executive chef at some of the top restaurants in San Francisco. He successfully competed in food competitions for many years and also travelled to Brazil multiple times to research manioc, a starch made by leaching and drying the root of the cassava plant.

Da Fonseca was hired as a chef instructor by the Culinary Institute in 2007. During the hiring process, he interviewed with Charles Henning, managing director of the Institute, and Adam Busby, supervisor of the Institute's chef instructors (including Da Fonseca).

The Day of the Accident

On the morning of February 10, 2010, Da Fonseca drove his car to the St. Helena campus and parked in the school parking lot. He taught classes that day, working from approximately 6:15 a.m. to 5:30 p.m.

When Da Fonseca left the St. Helena campus that evening, he drove his car towards his home in Sebastopol, with one or two dirty chef's jackets and possibly a set of chef's knives in the car with him. As he was driving down Calistoga Road, he struck two pedestrians, one of whom was 14–year–old Jorge.

Da Fonseca's Teaching Duties in the Associate Degree Program

Da Fonseca's primary duty as a chef instructor at the Institute was to teach courses in the associate degree program, which chef instructors taught in three-week blocks. The classes were taught in two shifts: the morning shift, for which Da Fonseca would arrive between 6:00 a.m. and 6:30 a.m. and finish around 6:30 p.m., and the afternoon shift, for which he would arrive around 11:00 a.m. and finish around 9:15 p.m. Da Fonseca would arrive before class started to prepare his lessons, and would stay after class ended to meet with students and complete his work. He did not take work home with him. As Da Fonseca was...