In Lynn v. Tatitlek Support Services, Inc., E063585, Super.Ct.No. CIVBS1200525, 2/22/17, the plaintiffs appealed a summary judgment at the California Court of Appeal granted to Tatitlek Support Services, Inc. in a wrongful death action after temporary employee Abdul Formoli caused a fatal automobile accident. The plaintiffs argued the "going and coming" rule, which precludes employer vicarious liability, did not apply because of the nature of Mr. Formoli's employment preceding the accident. Due to the remoteness of the job site, they argued that Formoli's employment required him to undertake a lengthy commute home after working long hours over three and a half days. The plaintiffs further argued that under such circumstances, three exceptions to the going-and-coming rule applied: the ordinary commute incidental benefit exception, the compensated travel-time exception and the special risk exception.
Ordinary commute incidental benefit exception: Under the going-and-coming rule, employers are generally exempt from liability for tortious acts committed by employees while on their way to and from work because employees are engaged in activities outside the course and scope of employment during their daily commute. However, if the employer expressly or impliedly makes the commute a part of the workday, or derives an incidental benefit from a particular employee's commute beyond that of the other members of the workforce, then the employer's vicarious liability will continue during the course of the commute. For liability to arise for use of a personal car, the benefit must be sufficient enough to justify making the employer responsible for the risk inherent in the travel.
In Tatitlek, the accident occurred while Formoli was driving home after completing his temporary job. The court concluded that the plaintiffs did not provide evidence establishing that the incidental benefit exception 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 or that Formoli agreed to make his personal vehicle available as an accommodation to his employer. Formoli's commute home also did not provide an incidental benefit to the employer. Formoli's commute was a personal activity, which did not occur within the course and scope of his employment.
Compensated travel-time exception: Courts also have excepted from the going-and-coming rule those cases in which the employer and employee have entered into an employment contract in which the employer agrees to pay the employee for travel time and expenses associated with commuting, thus making the travel time part of the working day by their contract. The plaintiffs argued that there was evidence that Formoli was paid for eight hours of work on the day of the accident. However, under his employment contract, Formoli was paid for out-processing work and actually worked only a few hours that day. The court found that the plaintiffs were unable to establish that Formoli was paid for actual travel on the day of the accident.
Special risk exception: The "work-related special risk" exception to the going-and-coming rule applies when an employee endangers others with the risk arising from or related to work. Courts apply the foreseeability test when considering the special risk exception to determine if employees have caused car accidents. Here, the plaintiffs were unable to provide evidence that there was a foreseeable risk of a third-party injury from a car accident created by Formoli's employment. There also was a lack of evidence regarding Formoli's fatigue from working long hours as the proximate cause of the accident. In other words, the plaintiffs failed to provide any admissible evidence that Formoli's employment was a substantial factor in causing or contributing to the accident.
The Court of Appeal concluded that the plaintiffs lacked evidence supporting these exceptions to the going-and-coming rule. This is an important decision that supports employers' lack of liability for an employee's long-distance commute after working hours. For the time being, it appears that California courts will not hold employers responsible for acts of their employees under the going-and-coming rule without clear proof of an exception to the rule.
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