“Going and Coming Rule”: Employer Not Liable For Accident Caused By Employee On Commute Home Where Employee Had Option To Take Bus Service

Haight Brown & Bonesteel LLP

In Gail M. Lynn, et al. v. Tatitlek Support Services, Inc., et al., 2017 WL 696008, published February 24, 2017, the California Court of Appeal, Fourth District, affirmed the trial court’s granting of summary judgment in favor of Tatitlek Support Services, Inc. (“TSSI”) on the ground that the “going and coming” rule precluded employer vicarious liability against TSSI.

This case stemmed from a fatal accident that occurred when Abdul Formoli, a temporary employee of TSSI, was driving home after completing his job assignment, and crashed into a vehicle driven by Plaintiff. TSSI, as a part of a contract with the United States Marine Corps to recruit and hire foreign language role players to participate in military exercises, hired Formoli as a role player to participate in training exercises. TSSI recruited role players from communities located in various areas, some of which were many miles from the training base. The training missions required the role players to be on their feet for long periods of time and were physically strenuous, caused fatigue, and were stressful. The role players slept a minimum of five hours per day. The role players were also provided significant periods of downtime during which they could rest and sleep.

When hiring role players for a mission, TSSI would ask if the employee was going to drive to/from the jobsite or wanted round-trip bus transportation, which TSSI provided at no charge. The bus service was not provided with the intention of ensuring the role players had safe transportation to the base, but was provided because many of the role players did not have personal vehicles and the transportation ensured that the role players would arrive on time. Formoli chose to drive himself to and from TSSI's facility rather than make use of the bus services provided by TSSI. TSSI did not pay Formoli or any other role players for their travel time or expenses to or from the base, regardless of whether the workers drove themselves or took the bus.

In granting TSSI’s summary judgment motion, the trial court concluded there was no evidence that Formoli was acting within the course and scope of employment at the time of the accident because the “going and coming” rule precluded employer vicarious liability for tortious acts committed by employees while on their way to and from work since employees are said to be outside of the course and scope of employment during their daily commute.

Plaintiffs appealed, arguing the “going and coming” rule did not apply because Formoli’s employment required him to undertake a lengthy commute home, after working long hours, resulting in exceptions to the “going and coming” rule.

Exceptions to the “going and coming” rule exist when the employee’s trip involves an incidental benefit to the employer, not common to commute trips by ordinary members of the work force. Plaintiffs argued the “going and coming” rule did not apply under the incidental benefit exception because TSSI benefited from role players, such as Formoli, commuting unusually long distances to the jobsite, which was in a remote location.

The Court of Appeal concluded that plaintiffs did not provide evidence establishing that the incidental benefit exception to the “going and coming” rule applied. Even though Formoli had a long commute, there was no evidence that Formoli's use of a personal vehicle was a condition of employment. There was also no evidence that Formoli's employer, TSSI, compensated Formoli for his travel time or expenses or that during his commute, Formoli was engaged in conduct benefiting TSSI. Formoli was simply driving home after completing his temporary job assignment. Even though TSSI's role players were hired from an extended labor market and were generally required to commute long distances to the training base, evidence established that the role players were not required to commute by personal vehicle. TSSI left to the discretion of the workers the manner of transportation. Role players could commute by personal car, bus, or any other means of transportation they chose.

Plaintiffs also argued that a triable issue of fact existed as to whether the work-related, special risk exception to the “going and coming” rule applied. The work-related, special risk exception to the “going and coming” rule applies when an employee endangers others with a risk arising from or related to work. In determining whether such danger arises from or is related to work, a foreseeability test is applied. Respondeat superior liability under the special risk exception is properly applied where an employee undertakes activities within his or her scope of employment that cause the employee to become an instrumentality of danger to others even where the danger may manifest itself at times and locations remote from the ordinary workplace.

Plaintiffs based their contention that the work-related, special risk exception applied on evidence that, when Formoli left the Base the morning before the accident, he was exhausted and sleep deprived from working as a role player. The Court of Appeal, however, held there was no evidence that there was a foreseeable risk of third party injury from a car accident created by Formoli's employment. Although plaintiffs submitted evidence Formoli worked long hours and the work was stressful and could be physically and mentally demanding, there was undisputed evidence that TSSI implemented procedures and rules intended to ensure that role players received adequate rest and uninterrupted sleep while participating in the military exercises. Summary judgment was therefore affirmed on appeal.

This case further supports the dispositive power of the “going and coming” rule for employers when an employee is simply commuting 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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