California Court of Appeals, Fourth District, Second Division
GAIL M. LYNN, Individually and as Executor, etc., et al., Plaintiffs and Appellants,
TATITLEK SUPPORT SERVICES, INC., Defendant and Respondent.
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
Hinshaw & Culbertson, Frederick J. Ufkes and Aji N.
Abiedu for Defendant and Respondent.
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.
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
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.
AND PROCEDURAL BACKGROUND
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.
Formoli's Employment as a TSSI Role Player
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 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.
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.
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.
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.
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.
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
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.
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.
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.
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
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.
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 ...