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Going and Coming Rule and Exceptions – California Law

General Rule: The “going and coming” rule states that a driver who negligently (or tortuously) causes a traffic accident during a normal commute from home to the workplace (or visa versa) is not within the scope of employment. Therefore, the employer is not liable to pay for the innocent other driver’s injuries or damages.

See Lobo v. Tamco (2010) 182 Cal.App.4th 297, 301, and Ducey v. Argo Sales Co. (1979) 25 Cal.3d 707, 722.

Note: Employer liability for an employee's act is a form of “vicarious liability” called “respondeat superior.”

Basis (rationale) for the Rule: The courts have generally concluded that when an employee is engaged in their commute, the employee is not rendering any service to the employer.

See Hartline v. Kaiser Foundation Hospitals (2005) 132 Cal.App.4th 458, 466.

Exceptions to the going and coming rule:

Special errand or mission: One of the exceptions to the “going and coming” rule is the “special mission”, “business mission” or “special errand” exception.

Under this exception, “if the employee, while commuting, is on an errand for the employer, then the employee's conduct is within the scope of his or her employment from the time the employee starts on the errand until he or she returns from the errand or until he or she completely abandons the errand for personal reasons.”

See CACI No. 3725; Tognazzini v. San Luis Coastal Unified School Dist. (2001) 86 Cal.App.4th 1053, 1057; Felix v. Asai (1987) 192 Cal.App.3d 926, 931.

Employee commute benefits the employer: 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. 

See Halliburton Energy Services, Inc. v. Department of Transportation, No. F064888 (Cal. Ct. App. Oct. 1, 2013); Jeewarat v. Warner Bros. Entertainment, Inc. (2009) 177 Cal.App.4th 427, 435-436.

Vehicle used at work: A subset of the “incidental benefit” exception to the "going and coming rule" is called the “vehicle use” or “required vehicle” 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.

See CACI No. 3725; Lobo v. Tamco (2010) 182 Cal.App.4th 297, 301.

Employer control during commute: If, for example, a police officer is required to wear a uniform and render emergency assistance while driving to or from work, then the employer sufficiently controls the officer during the commute, and, therefore, he or she is typically considered to be within the scope of employment as an exception to the going and coming rule.

See Guest v. Workmen's Comp. App. Bd. (1970) 2 Cal.3d 670; Garzoli v. Workmen's Comp. App. Bd. (1970) 2 Cal.3d 502; Carrillo v. Workers' Comp. Appeals Bd. (1983) 149 Cal. App.3d 1177; Petrocelli v. Workmen's Comp. Appeals Bd. (1975) 45 Cal. App.3d 635; Minor v. Sonoma County Retirement Board, 53 Cal.App.3d 540 (1975); Luna v WCAB (1988) 199 Cal.App3d 77; Pettigrew v. WCAB (2006) 143 Cal.App.4th 397.

Employer pays for commute: If the employer compensates the employee for travel time to and from work, then the general rule does not apply.

See Hinman v. Westinghouse Electric Co. (1970) 2 Cal.3d 956, 962.

An activity that occurred at the job was a foreseeable and substantial factor in causing of the accident during the commute: For example, if the employer serves alcohol at a company party, and the intoxicated employee while driving home, causes an accident, the going and coming rule typically will not apply.

See cases cited and discussed in Purton v. Marriott Internat., Inc., 218 Cal. App. 4th 499, 506-508. 

There are other exceptions as well.

Importance of the rule and exceptions:

Employer is liable for damages: If, at the time of the traffic accident, the negligent driver was operating his vehicle within the course and scope of his employment, then the employer would also (along with the driver) be liable for the innocent victim’s injuries or damages caused by the driver’s negligence.  Further, the employer probably has a substantial assets or a business liability insurance policy that will fully cover the loss whereas the employee might not.

Worker’s Compensation benefits: Further, if a driver falls within the exception, such employee driver may receive compensation for certain of their injuries and damages by making a Workers’ Compensation Injury claim. 

Note: Workers’ Compensation courts apply the going and coming rules similarly to (but may vary somewhat from) the traditional civil courts.   But both courts borrow and cite case law from each other.

Cases are fact specific: Whether or not the going and coming rule or its exceptions apply is often depends of the facts and circumstances of each case.  A number of cases fall within the “gray area” and the issue may have to be argued, advocated and litigated.  Such laws are evolving and mutating as new factual scenarios arise and analysis finds new nuances, understandings and applications.

Judge made law: The rule and exceptions are a creation of judicial case law (not created by the legislature).

Author: M.B. Tozer Esq.

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