Up-to-date information for employers on topics and issues that may affect workplace operations. The posts are current as of the date of the posting.


by Jennifer Brown Shaw and Alayna Schroeder | The Daily Recorder | Jan 26, 2011

When it comes to liability for employees’ actions away from the workplace, employers may be responsible for activities and behavior beyond their control. Under the doctrine of respondeat superior, an employer may be held liable for an employee’s negligence or other misconduct when committed within the scope of his or her employment. For example, when an employee is involved in a traffic accident while driving on company business, the employer may be held liable simply because the employee was on the job and driving for the employer’s benefit.

An employer’s liability generally does not extend to an employee’s conduct during his or her regular commute. Under the “going and coming” rule, during commute time, the employee is considered to be acting outside the scope of employment.

The “going and coming” rule is not absolute, though. For example, it does not apply when the employee is involved in a trip that creates an incidental benefit to the employer. California courts have eroded the going and coming rule in recent years, which has expanded employers’ potential liability.

The Special Errand Rule

Under the “special errand” rule, an employer will be liable for an employee’s acts during commute time if the employee is engaged in a “special errand” for the employer. In Jeewarat v. Warner Bros. Entertainment Inc., the California Court of Appeal considered whether the special errand rule applied when an employee got into a car accident while commuting home at the end of a three-day business conference. Marc Brandon, an employee of Warner Bros. Entertainment Inc., attended an out-of-town conference sponsored by one of Warner’s vendors. Warner paid for his airfare, hotel, and airport parking. Brandon drove by the office building on his way home from the conference, but did not stop.

Brandon was involved in an accident that injured three pedestrians, one of whom died from her injuries. The plaintiff pedestrians filed a lawsuit and named Warner as a defendant. The plaintiffs countered that Warner was liable because, by attending the conference, Brandon was engaged in a “special errand.” The trial court rejected the plaintiffs’ argument and granted Warner’s motion for summary judgment. On appeal, though, the court held that an employee’s attendance at an out-of-town business conference could be a “special errand” for the employer. The employer therefore could be vicariously liable for the employee’s torts. The fact that Warner paid for Brandon’s airfare, hotel accommodations, and airport parking led to a “reasonable inference” that it expected to derive a benefit from his attendance.

Warner argued that as soon as Brandon passed his office and continued on his normal commute route home, he was no longer on a special errand. But the court rejected the argument. The court reasoned that Brandon’s drive from the airport to home passed his office was coincidental. The special errand continued for the entirety of the trip.

The Required Vehicle Exception

The “required vehicle exception” is another exception to the going and coming rule. When an employee has impliedly or expressly agreed to make his or her vehicle available as an accommodation to the employer, and the employer has “reasonably come to rely upon its use,” the employer may be vicariously liable for the employee’s torts occurring during the regular commute.

In Lobo v. Tamco, Luis Duay Del Rosario was driving home from work for Tamco. He struck and killed on-duty police officer Daniel Lobo. Lobo’s family sought to impose liability on Tamco as Del Rosario’s employer. The trial court granted Tamco’s summary judgment motion, relying on the going and coming rule. The appellate court reversed, holding whether Tamco received an incidental benefit from the use of Del Rosario’s car presented a triable issue of fact. Del Rosario was sometimes expected to visit customer sites, and would generally accompany a sales engineer to the sites. However, on a few occasions (estimated by Del Rosario at 10 times in 16 years), he drove himself to the client sites.

The appellate court focused on whether Del Rosario’s physical presence at customer sites was “essential” because he was the only employee with expertise in a particular field. The evidence showed he was expected to go to customer sites, he did not have use of a company car, and he was sometimes required to use his own car. Even though the use of his personal vehicle was rare, this evidence showed Del Rosario was required to make his car available and the employer derived a benefit from the availability of his car. Accordingly, under the “required vehicle” exception, a jury must decide whether Tamco could be liable for Lobo’s death.

Limits to the Exceptions

The exceptions to the going and coming rule have some limits. For example, a California appellate court found the special errand rule did not apply when a supervisor sexually assaulted an employee on an outing away from the office. In Myers v. Trendwest, the supervisor, Ayman Damlahki, twice accompanied a subordinate when she drove to a client’s home under an unofficial, unsanctioned office practice known as “driving for dollars.” When a client forgot to bring cash or a credit card with them to purchase a timeshare from Trendwest, a Trendwest employee would follow the client home to collect payment.

On two occasions, Damlahki drove Myers, his subordinate, to the client’s home under this practice, even though she did not need him to accompany her. Damlahki once drove the employee to an isolated location and tried to kiss and grope her; on another occasion he drove to his own home, where he again kissed and groped her.

The employee claimed “driving for dollars” was a special errand, subjecting Trendwest to liability for battery, false imprisonment, and intentional infliction of emotional distress. The courts disagreed, finding that Damlahki’s conduct was outside the scope of employment, motivated by entirely personal reasons, unrelated to his job duties, and violated the company’s sexual harassment policy. Of note, Trendwest and Damlahki were held responsible for sexual harassment under the Fair Employment and Housing Act, because the statute imposes “direct” liability on the employer and the “respondeat superior” doctrine does not apply.

Employer Tips

Many employers may not be aware of the “going and coming” rule and its exceptions. The special errand and required vehicle exceptions can result in potential liability to third parties when employees are found to be driving in the course of their employment. If employers exercise too much control over their employees’ driving they run the risk of liability for the employee’s actions, even during commute time when the employee is not “on the clock.” If they exercise too little control—for example, by failing to put a stop to unofficial practices such as “driving for dollars” in the Trendwest case—they potentially risk the ability to control employee behavior for which they could be held legally responsible.

Most employers carry insurance. However, it is important to ensure coverage extends to employees’ use of their own or company vehicles within the scope of their employment. When employees are routinely responsible for driving, employers may wish to ensure that employees’ driving records and licensing are acceptable and do not signal additional risk.

Employers should ensure they have policies outlining when driving is considered part of employment. Employers can limit employees’ use of their own vehicles for work purposes, or may prescribe who may drive, and specify when driving on behalf of the company is authorized.

Naturally, employers should ensure employees understand that safety is a priority, and prohibit unlawful cell phone use and consumption of alcohol that interferes with driving. Management must be trained to understand the risks of permitting employees to drive on behalf of the organization, and the company policies that are in place to limit liability.

Accidents of course happen, even when employees and employers are cautious and have the best of intentions. As always, prevention is the key to minimize potential liability when accidents occur.