“Business Errand” Exception to the “Going and Coming Rule” Generally Presents Question of Fact Making Summary Judgment Rare

Haight Brown & Bonesteel LLP

In Sumrall v. Modern Alloys, Inc., 2017 WL 1365089 (April 13, 2017), the Fourth Appellate District was presented with another circumstance where the “business errand” exception to the going and coming rule was at issue. Plaintiff was injured after his motorcycle was struck by a personal vehicle being driven by a Modern Alloys, Inc. employee while driving from his home to the company’s “yard.”

Modern Alloys moved for summary judgment on the grounds that it could not be held liable under a theory of vicarious liability because its employee was not acting within the course and scope of his employment while driving from his home to the company yard. The employee, however, was not paid for any time spent at the company yard. Modern Alloys required all of its employees to first commute from their homes to the company yard, pick up construction materials at the yard, and then travel in a company truck to a construction jobsite. Its employees were only paid for time spent working at a specific jobsite. Upon leaving a jobsite, the employees were required to drive back to the company yard, drop off the company truck, and then drive their personal vehicles home.

The Court of Appeal reversed the trial court’s judgment in favor of Modern Alloys, holding that “the question of whether [the employee] was engaged in a business errand – and was therefore acting within the scope of his employment – is not a question of law that can be resolved in a motion for summary judgment. A jury must consider and weigh all of the relevant circumstances.” In particular, the Court stated that there were several questions that needed to be resolved by a jury in order to determine if the employee was on a “business errand:” (1) Was the “workplace” the yard where the employee first arrived, or was it the jobsite where he applied his skills as a concrete worker and was paid for that work?; (2) Was it an incidental benefit for Modern Alloys to have the employee – a masonry worker – first arrive at the yard and drive material and coworkers in a two-ton truck to a jobsite without being paid?; (3) Is it common for a commuter to drive from his home to a location where he will not be paid for his work, rather than to drive directly to the jobsite where the employer will pay him for his work?; (4) Would the employee have driven directly from his home to the jobsite if not expected to do otherwise?

The Court of Appeal also acknowledged the public policy considerations in favor of vicarious liability: “If Modern Alloys had actually paid [the employee] from the time he arrived at its yard, then it arguably would not be reasonable to hold the company liable for any of [the employee’s] torts before he got there. That would not be a foreseeable cost of Modern Alloy’s business. However, the expenses involved in hauling vehicles, equipment, and workers from its yard to a jobsite are most definitely a foreseeable cost of Modern Alloy’s construction business.” Because the employee performed some of these tasks at no additional cost to Modern Alloys, the company receives a savings and has arguably assumed the “allocation of a risk” under the respondeat superior doctrine.

Sumrall v. Modern Alloys, Inc. confirms the factual nature of the “business errand” exception to the “going and coming rule” and the hurdles an employer must overcome to defeat the exception, whether at summary judgment or trial.

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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