Employer Not Liable for Injuries Caused by Tired Employee on Drive Home

​When a security guard who fell asleep while driving home from an overnight shift crossed into oncoming traffic and struck another vehicle, her employer could not be held liable for the resulting injuries, a California appeals court ruled.

The guard was not acting within the course and scope of her employment at the time of the accident and the accident was not a foreseeable consequence of the guard's employment, the court said.

The employer provided security guard services at several University of California, San Francisco medical facilities. The security guard worked for the employer from February 2015 to May 2016. She left when she had a baby but reapplied for a position in 2017, requesting the overnight shift.

During her job interview, she disclosed that she did not have daytime child care for her infant, who was then eight months old. The guard was rehired and assigned to work the overnight shift—from 11 p.m. to 7 a.m.—five nights per week. The employer did not require the guard to use her car for work and did not dictate how she traveled to and from work.

Using the employee's personal vehicle, the employee's mother often drove her to work and picked her up when her shift ended. The employee then dropped her mother off at work and drove home.

The employee's first shift was on July 10, 2017. She frequently requested extra shifts and often worked six shifts per week rather than five. On Aug. 21, the employee began her fourth straight day of work. When her shift ended the following morning, her mother picked her up.

The employee dropped her mother off at work and began driving home. About an hour after finishing her shift, and as she neared her home, she fell asleep and drove into oncoming traffic, hitting and severely injuring a woman who was riding a motorcycle. The woman's husband, who was on another motorcycle, witnessed the accident.

The woman and her husband filed a lawsuit against the employer, claiming that it negligently "required" and "allowed" the employee to work excessive hours that tired her to the point of falling asleep at the wheel in the course and scope of her employment.

The employer sought to have the claims dismissed before trial, arguing that the "going and coming" rule—which holds that an employer is not liable for injuries caused by an employee commuting to or from work—barred liability.

The plaintiffs argued that the "special risk" exception to the going and coming rule applied because there was a causal connection between the employee's work and the accident. In reply, the employer argued that any fatigue experienced by the employee was due to her child care responsibilities, which had nothing to do with her work as a security guard.

The trial court dismissed the claims against the employer. It concluded that the employer was exempt from liability under the going and coming rule based on undisputed evidence that at the time of the accident, the employee had finished her shift and was on her way home.

The trial court declined to apply the special risk exception, concluding there was no evidence that the employer caused the employee to work excessive hours or that her schedule caused her to be fatigued.

The employee, the trial court said, had 16 hours off before she returned to work a normal shift of eight hours. While the employee did work the overnight shift, she was never asked to work a double shift.  

The plaintiffs appealed.

Respondeat Superior 

Under the doctrine of respondeat superior, an employer is liable for the injuries caused by its employees acting within the scope of their employment.

An employee is generally not considered to be acting within the scope of her employment when going to or coming from her regular place of work, the court explained, ruling that the going and coming rule applied in this case.

The employee did not use her car for work, and she was not acting within the course and scope of her employment at the time of the accident, which occurred well after she finished her shift and while she was driving home in her personal vehicle, the court said.

The court also rejected the plaintiffs' argument that the special risk exception to the going and coming rule applied. That exception applies when an employee endangers others with a risk arising from or related to work.

The employee worked a regular eight-hour shift before the accident; before starting that shift, she had 16 hours off, the court noted. Therefore, the court concluded that there was an insufficient connection between the employee's job and the accident.

The appellate court affirmed the trial court order dismissing the claims against the employer.

Feltham v. Universal Protection Service LP, Calif. Ct. App., No. A161190 (March 30, 2022).

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