Generally, an employer is not liable for an employee's torts when the worker is going to or coming from his or her place of work because the employee is not regarded as acting within the scope of employment.1 This is the foundation for the "Going and Coming Rule." In essence, the employment relationship is suspended from the time the employee leaves until she returns; in commuting, the employee is not rendering any service to the employer.2 Respondeat superior liability does not attach simply because employment brought the employee and injured party together at a certain time and place outside of the employee's workplace.3 The risks associated with an employee's commute to and from work generally are not considered inherent in the employee's work, absent special circumstances recognized in the exceptions to the Going and Coming Rule.4 As in many cases, these exceptions to the rule are where the important disputes lie.
The "Special-Errand" Exception
One of the exceptions to the Going and Coming Rule is the "special-errand" exception. Under this exception, an employee is acting within the scope of employment while coming from home or returning home on a special errand either as a part of his regular duties or on a specific order or request of the employer.5 The errand is considered to continue from the time that the employee starts on the errand until he or she has returned home or until he or she substantially deviates from a direct commute for personal reasons so as to constitute abandonment.6
The "Incidental Benefit"
Exception An additional exception to the Going and Coming Rule has been recognized when the commute involves an "incidental benefit" to the employer not common to commute trips by ordinary members of the workforce. When the employer incidentally benefits from the employee's commute, that commute may become part of the employee's workday for the purposes of respondeat superior liability, such as when the employer furnishes or requires the employee to furnish a vehicle for on-the-job trips.7 The employer benefits from the availability of the vehicle during the workday, off-duty emergency errands, or business stops when travelling to or from work8, the notion being that if a business requires an employee to drive to or from work, accidents are bound to occur and these are risks properly assumed by the employer9 . On the other hand, in Halliburton Energy Services, Inc. v. Dept. of Transportation (2013) 220 Cal.App.4th 87, an oil field service company was held not to be liable for an accident occurring during the on-call employee's return trip to work even though he was using a company truck because the employee substantially deviated from a direct route home and instead went to and was returning from a distant and purely personal errand, such that it was an unforeseeable consequence and was not an inherent risk or typical of or broadly incidental to the employer's enterprise.10
A subset of the "incidental benefit" exception to the Going and Coming Rule to be mindful of is the "vehicle-use" exception. Under this exception, 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, even if the employee's actual use of the vehicle for work-related purposes is infrequent.11 Generally, an employer is not liable for an employee's torts when the worker is going to or coming from his or her place of work because the employee is not regarded as acting within the scope of employment. An employee's voluntary use of his personal vehicle will not act as an exception to the Going and Coming Rule.12
Compensating for Travel Time vs. Compensating for Expenses
If the employer compensates the employee for travel time for reasons that benefit the employer (for example, as an employee benefit that allows the employer to enlarge the labor market pool), then the Going and Coming Rule does not apply and the employer may be liable for the employee's torts traveling to and from work.13 However, compensation for travel expenses alone, without compensating the employee for travel time, is insufficient to exclude the employee's commute from the protection that the Going and Coming Rule provides for employers.14
Finally, liability can arise from an activity which occurs on the job that was a foreseeable and substantial factor in causing the accident during the commute. For example, if the employer serves alcohol at a company party and the intoxicated employee causes an accident driving home, the Going and Coming Rule may not apply and the employer may be held liable.15
These are the primary exceptions to the Going and Coming Rule. Because the Going and Coming Rule is created by judicial case law and application of the rule and its exceptions often depend on the facts of each new case, new or different exceptions may be recognized. Although new cases may fall within gray areas and the laws continue to evolve to provide further analysis and application, this article should provide a helpful primer on what to look for when considering whether an employer may be liable for damages resulting from an accident during its employees' commute to and from work.
1 Lobo v. Tamco (2010) 182 Cal.App.4th 297, 303
2 Hartline v. Kaiser Foundation Hospitals (2005) 132 Cal.
App.4th 458, 466
3 Id. at p. 369.
4 Id. at pp. 469-470.
5 Tognazzini v. San Luis Coastal Unified School Dist. (2001) 86 Cal.App.4th 1053, 1057 (school district not liable for accident occurring while off-duty employee drove to get fingerprinting to comply with new legislation); Felix v. Asai (1987) 192 Cal. App.3d 926, 931.
6 Tognazzini, supra, at 1057; Felix, supra, at 931-932 (appliance repair business not liable for accident occurring afteremployee ran special errand delivering mail where employee began driving to his parents' house for dinner rather than directly home).
10 Halliburton Energy Services, Inc. v. Dept. of Transportation (2013) 220 Cal.App.4th 87, 96.
11 Lobo, supra, 182 Cal.App.4th at 301 (steel bar manufacturer liable for accident occurring during employee's return trip home were the employee was required to make his personal vehicle available during the workday to visit clients, however infrequently).
12 Ducey v. Argo Sales Co. (1979) 25 Cal.3d 707, 722-723 (sales company not liable for accident occurring during employee's return trip home where the employee voluntarily used her personal vehicle for supply trips and the transport of equipment).
13 Hinman v. Westinghouse Electric Co. (1970) 2 Cal.3d 956,962.
14 Harris v. Oro-Dam Constructors (1969) 269 Cal.App.2d 911, 917 (payment of a travel allowance, without more, did not provide a benefit to the employer sufficient to impose on the employer the liability for the plaintiff's injuries), upheld in Caldwell v. A.R.B., Inc. (1986) 176 Cal.App.3d 1028, 1041-1042 (noting that the Supreme Court in Hinman neither overruled nor disapproved of the holding in Harris in further reaffirming the decision.)
15 Purton v. Marriott Internat., Inc., 218 Cal.App.4th 499, 506-508.