California Appeals Court Finds Genuine Factual Dispute Regarding Applicability of “Going and Coming” Rule

A California appellate court recently reversed a trial court’s order granting summary judgment to a defendant employer in a workplace negligence action. The Fourth District Court of Appeals reasoned that it could not state as a matter of law that the employee was not on a business errand while commuting from his home to the employer’s yard.

In October 2010, the employer employed the worker as a cement/mason finisher. His job duties entailed setting forms, placing concrete, and smoothing it out once it set. He received an hourly wage for an eight-hour shift, which began and ended at the job site where he performed his work. The employer had a contract to install a new center median at a job site on the 710 freeway.

Its yard is located in the City of Stanton. The company expected the worker to first arrive at its yard at about 8:00 p.m., before working at the job site from 9:00 p.m. to 5:00 a.m. Crews from the employer would drive from the yard to the job site in company vehicles. Once the worker arrived at the yard, he would drive one of the company’s vehicles, a two-ton dump truck, from the yard to the job site and then return it to the yard at the end of his shift. He would take his coworkers along in the company’s truck, which was also loaded with construction materials.

On October 7, at about 7:30 p.m., he was driving from his home to the yard in his own vehicle. He collided with someone who was riding a motorcycle. The collision occurred on the street outside the parking lot at the employer’s yard.

The victim filed suit against the employer, alleging respondeat superior liability for the employee’s negligence; his spouse alleged loss of consortium. The employer filed a motion for summary judgment, claiming the worker was not acting within the scope of his employment under the “going and coming” rule. The victim filed an opposition, claiming that the employer was liable under the “business errand” exception. The trial court granted the employer’s summary judgment motion and entered a final judgment.

Under the going and coming rule, an employee going to work or coming home from work is ordinarily considered outside the scope of employment so that the employer is not liable for his torts. The going and coming rule is sometimes ascribed to the theory that the employment relationship is suspended from the time the employee leaves until he returns, or that in commuting he is not rendering services to his employer. 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, and all of the relevant circumstances must be considered.

The appeals court found a triable issue that precluded summary judgment:  the location of the “workplace.” If the company’s yard was the employee’s “workplace,” which the employer inferred from the facts, he was on an ordinary commute when the crash occurred and therefore was not acting within the scope of his employment. But if the employee’s job site was his “workplace,” as the employee inferred from the facts, he was arguably on a business errand to the yard for the employer’s benefit when the crash occurred. Under the later construction, he was acting within the scope of his employment, and the employer would be liable for his negligence.

The appeals court could not state as a matter of law that the employee was not on a business errand while commuting from his home to the employer’s yard. Thus, the court reversed the trial court’s granting of the defendant’s summary judgment motion.

The motorcycle accident lawyers at Neumann Law Group represent victims throughout the Los Angeles area. Call us at (213) 227-0001 for a free consultation.

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