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California appellate court explains business errand exception to going-and-coming rule
In general, an employee is not acting within the scope of employment while travelling to and from the workplace. Therefore, if the employee gets into an accident and injures a third party while going to or from work, the employer cannot be held liable for those injuries. However, if the employee, while commuting, is on an errand for the employer, the employee's conduct is within the scope of his or her employment from the time the employee leaves home to start on the errand. If the employee gets into an accident while running that errand, the employer may be held liable for resulting injuries.
A recent decision of the California Court of Appeal sets out some guidelines to help in determining whether an employee is in fact on a business errand when an accident occurs.
In October 2010, Modern Alloys Inc. employed Juan Campos as a cement/mason finisher. Campos' job duties entailed setting forms, placing concrete and smoothing it out once it set. Campos received an hourly wage for an eight-hour shift, which began and ended at the jobsite where he performed his work. Modern Alloys had a contract to install a new center median at a jobsite on the 710 freeway.
Modern Alloys' yard is located in the city of Stanton. The company expected Campos to first arrive at its yard at about 8 p.m., before working at the jobsite from 9 p.m. to 5 a.m. Crews from Modern Alloys would drive from the yard to the jobsite in company vehicles. Once Campos arrived at the yard, he would drive one of the company's vehicles, a two-ton dump truck, from the yard to the jobsite and then return it to the yard at the end of his shift. Campos would take his co-workers along in the company's truck, which was also loaded with construction materials.
On Oct. 7, at about 7:30 p.m., Campos was driving from his home to the yard in his own vehicle. He collided with Michael Sumrall, who was riding a motorcycle. The collision occurred on the street outside the parking lot at the company yard.
Sumrall filed a complaint against Modern Alloys alleging liability for Campos' negligence. Modern Alloys filed a motion for summary judgment, seeking dismissal of the lawsuit before trial, claiming Campos was not acting within the scope of his employment under the "going and coming" rule. Sumrall filed an opposition claiming that the company was liable under the "business errand" exception.
[SHRM members-only HR Q&A: If an employee slips on ice in the parking lot is it covered by workers' compensation?]
The trial court granted Modern Alloys' summary judgment motion and dismissed the lawsuit. Sumrall appealed that decision, and the appellate court reversed, ruling that Sumrall was entitled to a trial on his claim.
Scope of Employment Under Respondeat Superior Doctrine
The doctrine of respondeat superior imposes liability on employers for the actions of their employees while they are acting within the scope of their employment. The appellate court noted that, in California, the scope of employment has been interpreted broadly under the respondeat superior doctrine.
While, under the going-and-coming rule, an employee commuting to or from work is ordinarily considered outside the scope of employment, an exception to the going-and-coming rule occurs when an employee commits a negligent act while engaged in a "special errand" or a "business errand" for the benefit of his or her employer while commuting.
Whether an employee is on a business errand is usually a question of fact for the jury. All of the relevant circumstances must be considered and weighed in relation to one another, the court noted.
In this case, 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":
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?
Did it benefit Modern Alloys to have the employee—a masonry worker—first arrive at the yard and drive material and co-workers in a two-ton truck to a jobsite without being paid?
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?
Would the employee have driven directly from his home to the jobsite if not expected to do otherwise?
Sumrall was therefore entitled to a trial on his claim, and the lower court erred in granting summary judgment, the appellate court ruled.
Sumrall v. Modern Alloys Inc., Calif. Ct. App., No. G052678 (April 13, 2017).
Professional Pointer: If the employee had been paid for the time he spent driving between the yard and the job site, it is very likely that the time he spent driving to the yard would have been considered commuting time, and the employer would not have been liable for the injuries in this case. It seems to be the employer's decision not to pay for that time that raised questions for this court.
Joanne Deschenaux, J.D., is a freelance writer in Annapolis, Md.
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