Commonly known as the “going and coming” rule, an employer is generally not liable for an employee’s actions during the course of an employee’s daily commute to and from work. If the employer requires an employee to use his or her own vehicle to complete work assignments, however, the employer can face vicarious liability for personal injury and property damage should the employee get into a traffic accident. A recent California Court of Appeal’s ruling could potentially expand the scope of employer liability in this area.
After transporting some employees to a work-related program, Judy Bamberger left her office for the day in her personal vehicle, intending to stop for frozen yogurt and a yoga class on the way home. While entering the yogurt shop’s parking lot, she struck and injured motorcyclist Majid Moradi, who subsequently sued both Bamberger and her employer, Marsh USA. The trial court granted Marsh USA’s motion for summary judgment, holding that Bamberger was not acting within the scope of her employment at the time of the accident. Pursuant to the legal doctrine of respondeat superior, an employer can only be held liable for the actions of an employee if that employee is acting within the scope of his or her employment. Considering that Bamberger was driving home and running personal errands, the court found that her employer could not be held liable for her actions because she was not acting “within the scope of her employment.”
The California Court of Appeal rejected that argument, reasoning that Bamberger was actually acting “within the scope of her employment” when commuting to and from work because her job duties required frequent use of an automobile, and also because her employer required her to use her own personal vehicle and make frequent trips using that vehicle throughout the course of a given work day. Under these circumstances, an employee is deemed to be engaged in the course of employment even when driving to and from work because the employer gains an incidental benefit from the employee using her personal vehicle. The court ostensibly carved out an exception to respondeat superior. At one time, Marsh USA issued its sales people company cars, but Bamberger’s use of her personal vehicle brings the case within the “required vehicle” exception to the “going and coming” rule. Thus, it became foreseeable that Bamberger could stop for errands, while not constituting a significant departure from her regular commute.
Moradi v. Marsh USA Inc., Cal. Ct. App., No. B239858. (Sept. 17, 2013),
Professional Pointer: Employers should be careful not to create a “required vehicle exception” unnecessarily by requiring employees to use their own personal vehicles during the workday for work-related activities. In light of the Moradi decision, employers could be exposing themselves to greater liability for the traffic acts of their employees.
Dana Kravetz is the managing partner at Michelman & Robinson LLP, a national law firm with offices throughout California and in New York, and the chair of the firm’s Labor & Employment Law Department.