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Lynn v. Tatitlek Support Services, Inc.

California Court of Appeals, Fourth District, Second Division

February 22, 2017

GAIL M. LYNN, Individually and as Executor, etc., et al., Plaintiffs and Appellants,
v.
TATITLEK SUPPORT SERVICES, INC., Defendant and Respondent.

         APPEAL from the Superior Court of San Bernardino County No. CIVBS1200525. 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.

          OPINION

          CODRINGTON, J.

         I

         INTRODUCTION

         Plaintiffs and appellants Gail M. Lynn (Mrs. Lynn), individually and as executor 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 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.

         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.

         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 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 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 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 ...


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