Consumer Attorneys of California Article by: Darren Aitken & Atticus Wegman

When is the Cable Guy Off the Clock? The ins and outs of the “going and coming” rule

By: Darren Aitken and Atticus Wegman (See Biographies below)

When representing those injured through the fault of others, the prudent lawyer always investigates whether the negligent party was acting within the course and scope of his employment when the injury occurred. The key principle at play is that negligent acts of an employee (or agent) acting within the course and scope of his or her employment (or agency) are the legal responsibility of the employer. This principle, often referred to as “respondeat superior” liability, leads to the just result since the plaintiff’s losses stem from the employer’s act of sending someone out to do the work that ultimately caused injury. This concept has profound practical implications in many cases as the negligent employee often has insufficient or non-existent insurance or other resources to respond to a damage claim. Therefore, finding responsibility on the part of an employer may be the only route your client has to being fully and fairly compensated for his or her injuries.

One defense often over-used by employer defendants is termed the “going and coming” rule. This defense is most often invoked where an employee has caused a vehicle accident. In a nutshell, several cases have held that an employer is not responsible for its employees’ torts when the negligence occurs either going to, or coming from, the site where the employee works. See Largey v. Intrastate Radio-telephone, Inc., (1982) 136 Cal.App.3d 660, 668 [186 Cal.Rptr. 520]; Loos v. Boston Shoe Co., (1954) 123 Cal.App.2d 564, 566-567 [266 P.2d 884]; Feliz v. Asai, (1987) 192 Cal.App.3d 926, 932 [237 Cal.Rptr. 718]. In brief, the “going and coming” rule shields an employer from liability for negligence that occurs during an employee’s “commute” to or from the place of employment. This defense is often treated as an absolute shield, but there is a significant exception. The “going and coming” rule is applicable where the employee in question works from a fixed location on a set schedule, such as the stereotypical “9-5 employee.” Many employees, however, work at client sites or are required to have a vehicle available to perform their duties. In those situations, the employer can be held liable for an accident caused during the negligent employee’s “daily commute.” This principle, commonly referred to as the “vehicle-use exception” provides injured plaintiffs and their attorneys a powerful tool to greatly enhance the plaintiff’s recovery under the appropriate facts.

One of the first cases to address this area of the law was Richards v. Metropolitan Life Ins. Co., (1941) 19 Cal.2d 236 [120 P.2d 650]. In Richards, the defendant employee fatally injured the plaintiff’s daughter in a vehicle collision on his way to the office. Defendant employee was an outside insurance sales agent, and his position caused him to spend most of his time doing work outside his employer’s office. On occasion, he would make a sales call while using his personal vehicle prior to his arrival at the office in the morning. While he was required to attend a daily sales meeting, he had no “certain hours when he was required to work for the company.” Id., at p. 238.

In the trial of this matter, the court granted a nonsuit on the grounds that there was no evidence which tended to prove that the employee was acting within the course and scope of his employment when the collision occurred. Ultimately, the Supreme Court reversed, noting that the nature of the employee’s position kept him in the field the majority of the time, and that he would often perform field duties prior to first showing up at the office. Id. Since it was “optional” for this employee to go to the office before beginning his employment duties, the Supreme Court noted that this employee’s position “differs from those cases wherein the duties of the employee were to be performed at a designated place or did not commence until he had arrived at his employer’s place of business.” Id., at p. 241. The Court concluded that, the “going and coming” rule was inapplicable and the employee “was deemed to have entered upon his duties when he left his home to proceed to the first place to which his duty called him.” Id., at p. 243.

This area of law was expanded in the case Huntsinger v. Glass Containers Corp., (1972) 22 Cal.App.3d 803 [99 Cal.Rptr. 666]. In Huntsinger, the Plaintiff was killed when he collided with a truck owned and operated by the defendant employee, who was on his way home from work at the time of the accident. Evidence revealed that the employee was a “technical service representative” that needed the use of his vehicle for field work, and that he would occasionally call customers on his way to the office or on his way home. Id., at p. 806. The negligent employee was reimbursed for mileage with the exception of mileage to and from work, and he would often go directly to a customer location from his home prior to going to his employer’s place of business. Id.

The trial court granted the employer’s motion for nonsuit, and the appellate court reversed. On the issue of respondent superior liability, the appellate court held that 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 his way to or from the office “are statistically certain to occur eventually,” and therefore the risks of such accidents, and the legal responsibility for the damages caused therefrom, are incident to the business enterprise. Id., at p. 810.

Another key case is Lazar v. Thermal Equipment Corp. (1983) 148 Cal.App.3d 458 [195 Cal.Rptr. 890]. In Lazar, the defendant employee was on his way home from work in a company owned vehicle when the collision occurred. He was, however, headed in an opposite direction from his home intending to stop at a store to purchase personal items. Id., at p. 463. The employee was a project engineer and testified that he was sometimes required to proceed from his home directly to a job site. Id., at p. 461. The employee testified that he was constantly on call as a trouble-shooter and customers would occasionally call him at his home, after hours and on weekends. Id. In order to answer these calls, the employee drove a company truck in which he sometimes carried tools. Id.

Following trial, the jury made a special finding that the employee was not acting within the scope of his employment at the time of the accident. Plaintiff filed a motion for judgment notwithstanding the verdict and for a new trial, claiming that the jury should have been instructed that, as a matter of law, the employee was acting within the scope of his employment. The trial court accepted plaintiff’s reasoning and granted the judgment notwithstanding the verdict.

The appellate court affirmed the trial court, reasoning, “[Whether] an employee’s action [is] within or outside the scope of employment…begins with a question of foreseeability, i.e., whether the accident is part of the inevitable toll of a lawful enterprise.” Id., at p. 464. The appellate court ruled that the employee’s commute home was within the course and scope of his employment since the employee used the company vehicle to perform his duties, and the daily commute with that vehicle made its use during work possible. The appellate court then further reasoned that the employee’s stop at the store for personal items was a minor deviation that was reasonably necessary to the employee’s comfort and convenience. Id., at p. 465. The appellate court concluded “While a decision to stop at a party, or a bar, or to begin a vacation, might not have been foreseeable, we can think of no conduct more predictable than an employee’s stopping at a store to purchase a few items on the way home. Where, as here, the trip home is made for the benefit of the employer, in the employer’s vehicle, accidents occurring during such minor and foreseeable deviations become part of the ‘inevitable toll of a lawful enterprise.’” Id., at p. 466.

These principles were further enunciated, and even broadened, in a decision published last year. In Lobo v. Tamco, (2010) 182 Cal.App.4th 297 [105 Cal.Rptr. 3d 718], the plaintiff, a deputy sheriff, was killed when his motorcycle was struck by an employee who was on his way home from work in his personal vehicle. The plaintiff’s widow filed a wrongful death suit against the employee driver’s employer, which prompted a motion for summary judgment.

The defendant employee was a quality control manager whose job description included to “answer all customer complaints and if necessary, visit customer facilities to gain information and/or maintain customer relations.” Id., at p. 301. The employee who caused the injury worked for the defendant employer for 16 years, but used his own car only 10 times or fewer to visit customers. Id. In its motion for summary judgment, the defendant employer argued that all cases in which the vehicle-use exception to the “going and coming” rule had been found applicable, driving was an “integral part” of the employee’s job while in this case the employee only occasionally used his vehicle for employment. Id., at p. 300. In response, the plaintiff noted that driving was included in the employee’s job description, the employee was reimbursed for mileage traveled, and the employee carried work equipment such as boots, a helmet, and safety glasses in his personal vehicle. The trial court sided with the employer and granted its motion for summary judgment.

On appeal, the court examined both the “going and coming” rule and the vehicle-use exception and reversed the trial court’s grant of summary judgment. The appellate court noted that the exception can apply if the use of a personally owned vehicle is either an express or implied condition of employment. Id., at p. 301. The court noted “the fact that the employer only rarely makes use of the employee’s personal vehicle should not, in and of itself, defeat the plaintiff’s case.” Id., at p. 303. The court further noted, that “the availability of [the employee’s] car provided [his employer] with both the benefit of insuring that [the employee] could respond promptly to customer complaints…and the benefit of not having to provide him with a company car.” Id.

To combat the Lobo, Richards, Huntsinger, and Lazar decisions, defendants may cite Le Elder v. Rice, (1994) 21 Cal.App.4th 1604 [26 Cal.Rptr.2d 749]. In that case, the plaintiff sought to impose respondeat superior liability against the employer where the employee left his home to drop his children off at school and subsequently injured plaintiff on his way home. The employee had intended to return home, eat his breakfast, and read the paper for approximately one hour and fifteen minutes before making a business call from his home. Id., at p. 1608 (emphasis added). The employee was not going to or coming from work nor had his working day started. In a bench trial based on stipulated facts, the trial court concluded that the employer was not liable, and the appellate court affirmed.

In Le Elder, the plaintiff focused on the fact that the employee was on-call “24/7” and would respond to calls as they came in. The appellate court rejected this argument, finding, “It may have been referring to the benefit-to-the-employer exception to the ‘going and coming’ rule, but that rule is inapt here.” Id. The appellate court went on to note that the employee’s purpose was to take his children to school, a purely personal activity, and that the entire trip was a substantial deviation from his employment duties. Id., at p. 1608. For these reasons, the appellate court never reached the issue whether the acts of the negligent employee were of benefit to the employer. Id., at p. 1609. The rule of Le Elder does not greatly undermine the rule of liability created in the Huntsinger and other decisions discussed above. It merely directs the plaintiff to concentrate on the role the vehicle plays in the performance of the employee’s duties, rather than the technical “on-call” status of the employee when the collision occurs.

The legal concepts embodied by the cases discussed above are also expressed in the California Civil Jury Instructions (CACI). CACI 3725 outlines the Vehicle-Use Exception to the “going and coming” rule: “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.”

Elements that may indicate respondeat superior liability for an employee who causes an injury during his or her “commute” include: whether the employee regularly worked “in the field” such as cable television repairmen, construction worker, or computer repair technician; whether the employer kept records of its employees’ driving records and required the employee to have access to private transportation; whether the employer required a valid driver’s license, proof of vehicle insurance, and valid vehicle registration as a condition of employment; whether mileage was reimbursed to the employee; and whether the employee would go to the job site directly from home or head home directly from job sites. This list is by no means exhaustive. It merely provides a guide of some of the factors to be aware of when there is a suspicion that the person liable for the plaintiff’s injuries may have been within the course and scope of his or her employment.

As you can you see, the course and scope of employment theory of liability is much more broad than defense interests want to believe. Rather than being an absolute shield, the fact that an employee was going to work, or coming home from work, is but one factor to consider when evaluating whether superior liability applies. If the employee in question uses his personal vehicle for work, even only occasionally, or drives a needed company vehicle to and from the office superior liability may very well attach. The “incidental benefit” that the use of a car may provide the employer could make all the difference between a plaintiff who is fully compensated or who must bear personally the losses caused by the negligence of another.

Mr. Aitken, a partner with Aitken * Aitken * Cohn in Santa Ana, California, and CAOC Board member, practices civil litigation in the areas of insurance bad faith, personal injury, product liability and commercial torts.

Consumer Attorneys of California Article by: Darren Aitken & Atticus Wegman

Mr. Wegman is an associate with Aitken*Aitken*Cohn in Santa Ana, California. He practices personal injury law, including wrongful death, products liability and general negligence.

Consumer Attorneys of California Article by: Darren Aitken & Atticus Wegman