Employer Might Be Liable for Accident Caused by On-Call Employee


By Joanne Deschenaux February 1, 2019

An employer might be liable for a passenger's injuries resulting from an accident that occurred while an off-duty employee was driving a company truck, because the employee was on call 24 hours a day, seven days a week, a California appellate court ruled.

The plaintiff was injured in a single-vehicle, rollover accident. He sued the company that employed the driver and an affiliated corporation that owned the truck, alleging that the driver was acting in the scope of his employment at the time of the accident, and therefore the companies were liable under California's doctrine of "respondeat superior," which provides that an employer can be held vicariously liable for an employee's negligence in certain situations.

The trial court dismissed the claims, holding that the driver, who was returning home late in the evening after attending a family gathering, was not acting in the scope of his employment at the time of the accident. The plaintiff appealed.

Scope of Employment

The driver in this case was always on call so he could respond to repair and maintenance requests at the employer's ranches and farms. However, there was conflicting evidence about whether the driver was required to use the company-owned vehicle—which contained tools and spare parts—at all times so he could respond quickly. Based on this evidence, the appellate court concluded, a reasonable juror could find the driver was acting within the scope of his employment when the accident occurred.

[SHRM members-only resource: California Labor and Employment Law Overview]

The court noted that the case was distinguishable from most other cases that involved an employee's required use of a company-owned vehicle. Usually, the employee must drive the vehicle only for the commute to and from work, not while off duty.

In this case, the court said, a jury could find that the driver had to use the truck for personal travel because he was always on call. In such circumstances, the court explained, the risk of the truck's involvement in an accident is foreseeable.

The appeals court therefore reversed the trial court's dismissal of the lawsuit, holding that the plaintiff's claims against the corporations should proceed to trial.

Moreno v. Visser Ranch Inc., Calif. Ct. App., No. F075822 (Dec. 20, 2018).

Professional Pointer: There are many factors that a court considers when it decides if an employee was acting within the scope of his or her employment when a third party was injured. One important consideration, as the court noted in this case, is whether the employee's conduct was reasonably foreseeable in light of the employer's business or the employee's job responsibilities.

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


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