Employers Beware: You May be Liable for Your Employees’ Tortious Off-Duty Conduct during Their Commutes

by Orrick - Global Employment Law Group
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In Moradi v. Marsh USA, Inc., the California Court of Appeal concluded that employees who are required to use their personal vehicles to travel to and from the office and make other work-related trips during the day are acting within in the scope of their employment when they are commuting to and from work.

Judy Bamberger worked for Marsh USA, Inc. as an insurance broker and was required to use her personal vehicle to engage in sales and develop client relationships. One day, Bamberger hit a motorcyclist with her car as she was stopping at a frozen yogurt shop on her way home from work. The motorcyclist sued Bamberger and her employer for his injuries. The trial court dismissed the motorcyclist’s action against the employer on summary judgment on the ground that Bamberger was not acting within the scope of her employment when she hit the motorcyclist. It explained, Bamberger “was neither at work, nor working, nor pursuing any task on behalf of her employer” but “was pursuing personal interests, namely going to yoga class and stopping for yogurt on the way.”

On September 17, 2013, the appellate court reversed relying on an expanded reading of the required vehicle exception to the “coming and going” rule. Under the coming and going rule, an employer is generally exempt from liability for tortious acts committed by employees while on their way to and from work because employees are said to be outside the course and scope of employment during their daily commute. The required vehicle exception arises where an employee’s use of her car gives some incidental benefit to the employer. The appellate court held that the required vehicle exception applied because the employer required Bamberger to use her personal vehicle to travel to and from the office and make work-related trips during the day. Indeed, on the day in question, Bamberger had driven herself and co-workers to an employer-sponsored program. In the court’s view, her planned stops at the frozen yogurt shop and yoga class on her way home did not change the incidental benefit to the employee of having the employee use her personal vehicle to travel to and from the office and other destinations. Although the stop was her “own business,” the court said, it was made while driving home—a consequence of the employer’s required-vehicle policy. Further, according to the court, the stops were foreseeable, minor deviations from her commute, were necessary for her comfort, convenience, health and welfare, and were not so unusual or startling that it would be unfair to include the resulting loss among the other costs of the employer’s business. Thus, the court concluded, Bamberger was acting within the scope of her employment when she was commuting to and from work and the doctrine of respondent superior applied.

The Moradi decision is a reminder to employers with required vehicle policies that they may be liable for their employees’ tortious conduct during their commutes to and from work.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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