Morrison Law Journal
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The Morrison Law Journal
December 2018
Volume XIII, Edition 12

When It Is Not Going And Coming: Court Of Appeal Reverses Summary Judgment
Ruling That Employee Driving Company Vehicle May Have Been In The Course And
Scope Of Employment Even Though The Employee Was Driving Home From A Late
Evening Family Event Unrelated To His Employment

By: Edward F. Morrison, Jr., Esq.
Larry A. Schwartz, Esq.

Significant litigation has occurred over the years in California in regard to personal injury automobile accidents involving company owned vehicles. In some cases, the company owned vehicle is being operated by an employee, but after hours and for purposes that often have little or nothing to do with the employee's work for the employer. The key question in these cases is whether the scope of the employee's employment could permit a finding that the accident occurred while the vehicle was being operated for company/business purposes even though the accident occurred in off hours and the vehicle was being operated at the time of the accident for what appeared to be a personal matter.1

In a serious personal injury case, Ray David Moreno v. Visser Ranch, Inc. (2018) Westlaw 6696021 ("Moreno case"), the California Court of Appeal ruled that, even though a company vehicle was being operated at the time of the accident for personal business, a triable issue of material fact still existed as to whether the driver of the company vehicle was engaged in "purely personal business" at the time of the accident. In the Moreno case, plaintiff Ray David Marino ("plaintiff") was seriously injured on September 12, 2012 when the 2004 GMC Sierra pickup truck in which he was a passenger (and operated by his father), left the roadway, hit an embankment, and rolled over. The driver of the truck, Ernesto Marino Lopez (the plaintiff's father), was returning home late in the evening after attending a family gathering (and the family gathering did not involve his employment nor was his employer even aware of the family event).

Mr. Lopez was an employee of Visser Ranch, Inc. ("Visser Ranch"), owned by John Visser. Mr. Lopez had been hired in September 2004 as a supervisor/manager and was required to work at virtually all of Visser's properties, which included multiple farms, ranches, and a dairy known as Graceland Dairy (where Mr. Lopez lived with his family, including his son). Mr. Lopez' operations involved equipment that ran around the clock. When maintenance or repair issues arose, Mr. Lopez would need to address them immediately in order to prevent the farm and dairy operations from being disrupted. To facilitate Mr. Lopez' ability to respond to repair and maintenance problems arising

1 The legal test is whether the activity at the time of the accident was "incidental" to the employee's duties. See, Halliburton Energy Services, Inc. v. Department of Transportation (2013) 220 Cal.App.4th 87, 93–94.


outside his usual daytime schedule, Visser Ranch provided him a cell phone and a GMC pickup truck (the pick up truck being owned by a Visser Ranch related entity). Mr. Lopez kept a toolbox and spare parts in the GMC truck so he would have them available in order to respond to a maintenance or repair issue. When Mr. Lopez was not working his regular shift, he used the GMC truck for personal reasons but was then also available to respond to work-related calls.

On the day in question, Mr. Lopez left work at approximately 4:30 p.m., drove to his home at the Graceland Dairy, loaded a grill into the GMC truck, and drove to his brother's house for a family gathering. No employees of Visser Ranch were involved in the gathering. At approximately 11:45 p.m., Mr. Lopez got back into the GMC truck to return to his home at the Graceland Dairy. His son (the plaintiff) accompanied him. A serious, single vehicle accident then occurred on a rural road which was under construction.

Plaintiff filed suit against, among others, the driver (his father), the corporation that employed the driver (Visser Ranch), and a Visser Ranch affiliated corporation that owned the GMC truck. Visser Ranch then filed for summary judgment on the basis that the accident did not involve the scope of employment of Mr. Lopez. Summary Judgment was granted by the trial court. The Court of Appeal reversed, however, ruling that a reasonable trier of fact could conclude that the late night return from the family gathering could have been for company purposes. In that regard, the Court of Appeal acknowledged that, while the facts showed Mr. Lopez was on personal business when the accident occurred, the evidence before the Court did not establish as a matter of law that Mr. Lopez was engaged in "purely personal" business and ruled that, because Mr. Lopez was available and on call at the time of the accident, there could have been a mix of personal and company business activity for which the employer could be liable for under California’s risks-of-the-enterprise principle.

The Moreno case appears to be significant for supervisorial or maintenance employees who have potentially 24 hour a day responsibilities and who use company vehicles. As for automobile accidents involving those types of employees, the holding in the Moreno case will make it more difficult for the employer to avoid liability as the standard could be that it will have to be shown that the activity at the time of the accident was "purely" personal in nature.

About the Authors: Edward F. Morrison, Jr. is the founding partner and Larry A. Schwartz is Of Counsel to The Morrison Law Group, a professional corporation. Their biographies can be viewed at

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