Employer Not Liable for Car Accident Caused by Temporary Employee on Long Trip Home

California Court of Appeal finds that exceptions to the ‘going and coming’ rule did not apply

By Joanne Deschenaux, J.D. Mar 13, 2017
A corporation could not be found liable when a temporary employee, driving a long distance home from an assignment, struck another car, killing the driver and injuring his wife, the California Court of Appeal ruled. The court found that the "going and coming" rule governed and that no exceptions to the rule applied.

TSSI, a company based in Harrisonburg, Va., that provides equipment and services for the military, entered into an employment contract with the U.S. Marine Corps to recruit and hire foreign language role players to participate in military exercises for recruits who would be going to Afghanistan. The exercises were held at a base at Twentynine Palms, Calif., and TSSI provided optional bus service to role players at no charge.

Abdul Formoli was hired by TSSI to play the role of an "Afghan villager," participating in the exercises at the base beginning on Aug. 7, 2011. Formoli's time sheets showed eight work hours on Aug. 7; 17 hours on Aug. 8; 19 hours on Aug. 9; 19 hours on Aug. 10; and eight hours on Aug. 11. During worktime, role players might be in their village hut sleeping or playing cards or dominoes.

Formoli chose to drive himself to and from his home in Sacramento to TSSI's Twentynine Palms facility, rather than make use of the bus services provided. TSSI did not pay Formoli or any other role players for their travel time to or from the base, and role players who used their own cars for transportation were not reimbursed for their transportation expenses.

As Formoli was driving home after completing his job assignment, he crashed into a pickup truck driven by Brian Lynn. Lynn's wife, Gail, was a passenger in the truck. Formoli's vehicle caught on fire, killing him. The fire spread to the Lynns' vehicle, and Brian Lynn also died. Gail Lynn survived the accident. At the time of the crash, Formoli's blood alcohol level was .06 percent and he was traveling north in the southbound lane of the highway.

[SHRM members-only HR Q&A: Are employers in California legally allowed to test employees for drugs or alcohol?]

Gail Lynn filed suit against Formoli's estate and TSSI. She argued that TSSI was liable under the doctrine of respondeat superior for her husband's death and her injuries. But the trial court dismissed the claims against TSSI before trial, and Lynn appealed.

Exceptions to the Going and Coming Rule

Under the theory of respondeat superior, employers may be liable for acts committed by employees during the course and scope of their employment. However, under the going and coming rule, employers are generally exempt from liability for acts committed by employees while on their way to and from work because employees are considered to be outside of the course and scope of employment during their daily commute.

If, however, the employer makes the commute a part of the workday by compensating the worker for that time or derives an "incidental benefit" from a particular employee's commute, then the employer's liability will continue during the course of that commute.

It was clear that the employer did not make the commute part of the workday in this case, the court said, noting that there was no evidence that TSSI compensated Formoli for his travel time or expenses.

Further, the incidental benefit exception did not apply, the court said, because there was no evidence that, during his commute, Formoli was engaged in conduct benefiting TSSI. Lynn argued that Formoli's commute was not ordinary because it was lengthy but the court found that this alone was not sufficient to create an exception to the going and coming rule. "Employer liability based solely on an employee's lengthy commute would place an unreasonable, excessive burden on the employer and ultimately on the community at large," the court said.

Lynn also argued that the work-related, "special risk exception" to the going and coming rule applied. This exception may come into play when an employee "endangers others with a risk arising from or related to work."

Lynn claimed that because Formoli worked long hours and the work was stressful and could be physically and mentally demanding, he could have been unfit to drive because of work-related fatigue. But the court found no evidence that Formoli was fatigued or that, even if he was tired from work, that this was a cause of the accident. Evidence of Formoli's work hours and activities alone were not enough to allow Lynn to bring her claims against TSSI to trial, the court said.

The court affirmed the trial court's order dismissing the claims against TSSI.

Lynn v. Tatitlek Support Services Inc., Calif. Ct. App., No. E063585 (Feb. 22, 2017).

Professional Pointer: Although an employer may have reasons to want to compensate an employee for his or her commuting time, doing so may make that time part of the employee's workday and may subject the employer for liability for the employee's actions during that time.

Joanne Deschenaux, J.D., is a freelance writer based in Annapolis, Md. 

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