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Employer Liability - The Going and Coming Rule

Employer Liability for Employee's Auto Accidents 

Car Accident Lawyer - Michael D. Rehm 

Free Consultations - (800) 978-0754

               In the recent case of Bingener v. City of Los Angeles, the California Court of Appeal discussed the law surrounding the “going and coming rule,” in California Auto Accident cases.  The rule often comes up in accident cases where the defendant has very little insurance coverage, or none at all, to compensate the injured victim.  In this situation, other sources of insurance coverage are generally sought after by personal injury attorneys, and often, if the defendant was driving for work, the employer can be liable as well.  It is known as the doctrine of respondent superior, where the employer is liable for the acts of their employees. A general exception to this rule is when the employee is simply “going and coming” to work. In other words, where the employee is simply engaged in their daily commute, and not engaged in work related activities.

As the court stated:

   “Under the doctrine of respondeat superior, an employer is liable for the torts of its employees committed within the scope of their employment. (Ducey v. Argo Sales Co. (1979) 25 Cal.3d 707, 721, 159 Cal.Rptr. 835, 602 P.2d 755.)”

            “The doctrine is based upon a policy that the employer should be responsible for losses caused by the torts of its employees that occur in the conduct of the employer's enterprise. (Depew v. Crocodile Enterprises, Inc. (1998) 63 Cal.App.4th 480, 486, 73 Cal.Rptr.2d 673.) An employee is generally not considered to be acting within the scope of his employment when going to or coming from his or her regular place of work. (Ibid.; see also Bussard, supra, 105 Cal.App.4th at p. 804, 129 Cal.Rptr.2d 675.)”


The Court of Appeal proceeded to discuss the exceptions to the “going and coming rule.”

            “This rule—the “ ‘going-and-coming rule' ”—has several exceptions, which are generally understood to encompass those situations in which the employer derives some benefit from the employee's trip. (Depew v. Crocodile Enterprises, Inc., supra, 63 Cal.App.4th at p. 486, 73 Cal.Rptr.2d 673.) In such instances, the employer's responsibility extends beyond his “actual or possible control of the servant to injuries which are within the ‘risks of the enterprise.' ” (Hinman v. Westinghouse, supra, 2 Cal.3d at p. 960, 88 Cal.Rptr. 188, 471 P.2d 988.) For example, where the employer has instructed an employee to use his car to recruit other workers and is furnishing the gas for the trip, the risk of the enterprise surely encompasses the employee's travel to and from the remote work site. (Harvey v. D & L Constr. Co. (1967) 251 Cal.App.2d 48, 51, 59 Cal.Rptr. 255 [special errand exception].) Similarly, where the employee's work involves both office work and field work, it is immaterial whether he is driving to his office or driving to other locations. (Richards v. Metropolitan Life Ins. Co. (1941) 19 Cal.2d 236, 243, 120 P.2d 650 [automobile use as a condition of employment].)”

            “One other exception to the “ ‘ “going-and-coming rule” ' ” arises where an employee endangers others with a risk inherent in or created by the enterprise. In such a situation, the risk is foreseeable and the employee's conduct is not “so unusual or startling” that it would seem unfair to include the loss in the employer's costs of doing business. (Bussard, supra, 105 Cal.App.4th at p. 804, 129 Cal.Rptr.2d 675; Farmers Ins. Group v. County of Santa Clara (1995) 11 Cal.4th 992, 1004, 47 Cal.Rptr.2d 478, 906 P.2d 440.) For example, in Bussard, the employer's improper use of pesticides at the work place, which sickened and rendered an employee unable to drive safely, caused that employee to rear-end another car on her way home. (Bussard, at p. 801, 129 Cal.Rptr.2d 675.) In such an instance, conditions for the occurrence of the accident had been created within the scope of the driver's employment. (Ibid. at pp. 805–806, 129 Cal.Rptr.2d 675.) By contrast, “ ‘[i]f the employee's tort is personal in nature, mere presence at the place of employment and attendance to occupational duties prior or subsequent to the offense will not give rise to a cause of action against the employer ....' ” (Farmers, at p. 1005, 47 Cal.Rptr.2d 478, 906 P.2d 440.)”

            As the court discussed, the three exceptions to “going and coming rule,” are:

           (1) the special errand exception;

           (2) Automobile use is a condition of employment; and

           (3) An employee endangers the public because of a risk that is inherent in the job they have or created by the enterprise of their job.

            So, if you are injured in an accident, and the other side does not have enough insurance coverage to provide adequate compensation, it is important to find out whether one of those three exceptions above could apply, and if one of those exceptions does apply, the employer is liable as well.  This is a good example of why the selection of an accident attorney is so crucial to your case, and it shows how an attorney that understand the law can make a real difference in recovering adequate compensation for your injuries.

            Michael D. Rehm Car Accident Lawyer provides representation throughout California.  For a free consultation, call (800) 978-0754.

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