Employer Not Vicariously Liable for Employee’s Negligence in Causing Fatal Car Crash, Due to “Going and Coming” Rule, According to California Appellate Court

On appeal, the California Court for the Fourth Appellate District addressed whether a temporary employee had acted within the scope of his employment when he caused a motor vehicle accident that killed one victim and seriously injured another.   Under the legal doctrine of respondeat superior, an employer may broade vicariously liable for the actions of an employee.  In this case, the court examined the exceptions to the “going and coming rule,” which precludes an employer’s liability on the ground that an employee on their way to and from work is outside the course and scope of employment.

The plaintiffs, including the wife and son of the fatally injured victim in the car accident, brought a wrongful death action against a company following a car crash caused by its employee.   They argued that the nature of the driver’s employment before the accident prevented the application of the “going and coming rule.”  They argued that an exception to the rule applied, since the employee had a long commute to work.

The company provided support services for realistic military pre-deployment training, and it hired role players to participate in these exercises.  The employee who caused the accident was a role player and chose to drive himself to the facility, rather than take the employer-provided bus. At the time of the accident, the evidence showed that the employee had not been engaging in an errand or activity that benefited the company or was incidental to his employment with the company.

After completing his work assignment, the employee was driving home when he crashed into a truck driven by the deceased man.  In this head-on collision, the employee had been traveling in the wrong direction on the freeway.  A police officer dispatched to the scene determined the main cause of the accident was the employee crossing the double-yellow lines.  Upon impact, the employee’s car burst into flames, killing him, and the fire then spread to the plaintiffs’ vehicle.  The deceased victim died soon afterward, but his wife, the passenger, survived.

The company moved for summary judgment, arguing that the driver had not been engaged in work-related activity at the time of the accident and was not being compensated for his travel time.  The court granted the motion on the ground that the company showed that the employee had not been acting within the course and scope of his employment when he struck the plaintiffs. Since the plaintiffs had not shown evidence of a triable issue of material fact regarding the scope of employment, the motion was granted.

First, to overcome the “going and coming” rule, the plaintiffs contended that the incidental benefit exception applied. The theory behind the going and coming rule is that an employee is not in the course of employment while he is traveling to or from work.  The rule normally applies when employees work at a particular location, and the job duties do not ordinarily include driving on the job. Here, the plaintiffs argued that the company benefited from role players, such as the employee, who often commuted long distances to the remote location of the job site.

The court rejected the plaintiffs’ contention that the incidental benefit exception applied, and it stated that there was no evidence that the employee’s use of his vehicle was a condition of employment or that he agreed to make his vehicle available as an accommodation to the company.  The court stated that the role players, as the employee had been, were not required to commute by personal vehicle.  The company offered free bus transportation, but in this case, the employee chose to drive himself. The court stated that the relationship between the employee’s work and driving home was too “attenuated” an employer benefit to bear the risk of an accident during the employee’s commute home.

Additionally, the court made clear that the incidental benefit exception to the going and coming rule does not apply whenever an employee has a lengthy commute.  The company should not be liable for employees who choose to commute this long distance by personal vehicle.

The court also noted that the plaintiffs’ contention that the employee had been paid for his travel time when the accident took place was disputed.  In fact, the evidence established that the employee had not been compensated.

Finally, the court stated that the trial court properly rejected the special risk exception to the going and coming rule. The plaintiffs argued that the employee had been sleep-deprived and exhausted, having worked for 63 hours over three and a half days.  Applying a foreseeability test to consider this exception, the appellate court stated that the plaintiffs did not show evidence of a third-party injury from a car accident caused by the employee’s work.  Simply providing evidence of work hours and activities does not raise a triable issue of fact that the company was vicariously liable.  The court here stated there must be evidence an employee’s fatigue resulted from an excessive workload, such that falling asleep while driving was a foreseeable consequence of the employee’s job.

The court affirmed the judgment in favor of the company, finding it was undisputed that the company was not vicariously liable for the accident according to respondeat superior.

Following a fatal car accident, survivors of the deceased victim can pursue damages for the loss of a loved one.  At Sharifi Firm, our wrongful death attorneys provide skilled legal representation to surviving family members throughout Southern California. We provide a free consultation and can help you understand your legal rights. Call us today at 1-866-422-7222.

More Blog Posts:

California Court of Appeal Holds in Favor of Injured Motorcyclist Hit by Taxi Driver in West Hollywood; Taxi Company Vicariously Liable for Driver’s Acts, Southern California Injury Lawyer Blog, February 20, 2017

California Court of Appeals Rules on Liability of Motor Carrier for Negligence of Contract Driver, Southern California Injury Lawyer Blog, August 13, 2015

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