Employer not liable for accident partially remote employee caused during commute
Under the “going and coming” rule, however, employers are not liable for legal wrongs their employees commit while commuting to and from work, with limited exceptions
My first Law at Work column appeared on Oct. 3, 2016. The column has appeared here biweekly on every alternating Monday since. This is the 250th column.
Employers are liable for legal wrongs their employees commit within the scope of their employment under a doctrine called respondeat superior. Under the “going and coming” rule, however, employers are not liable for legal wrongs their employees commit while commuting to and from work, with limited exceptions.
In a 2022 ruling, a California court of appeal panel explained: “The theory behind the going and coming rule is that the employment relationship is suspended from the time the employee leaves work until she returns or, put another way, that in commuting the employee is not rendering service to the employer.”
Not withstanding this rule, an employer may be liable where the employer gets some specific benefit from the employee’s commuting trip.
In Chang v. Southern California Permanente Medical Group, decided last month, a Los Angeles-based court of appeal panel applied the going and coming rule in the context of an employee working partially from home.
Background
On Monday morning, Sept. 12, 2022, Kai-Lin Chang, while riding his bicycle, suffered injuries when he was allegedly hit by Southern California Permanente Medical Group (SCPMG) employee Brittany Doremus when Doremus, a doctor employed by SCPMG, allegedly made a sudden left turn into Chang’s path. Doremus was driving to her SCPMG medical center office. Doremus was turning into a dry cleaner’s parking lot on a personal errand.
Doremus regularly worked at the medical center on Mondays and Tuesdays. SCPMG permitted Doremus to work from home half of the day on Wednesdays.
Chang claimed SCPMG could be liable for the accident because SCPMG could not negate the possibility Doremus was talking or texting with coworkers on her employer-issued cell phone at the time of the accident. Alternatively, Chang claimed the going and coming rule should not apply because SCPMG allowed Doremus to work from home sometimes, meaning she was not commuting between home and work, but was instead traveling between job sites.
The trial court summarily rejected both arguments. The court of appeal affirmed.
Who has the burden?
Building on prior appellate rulings, the court of appeal held SCPMG did not have the burden of negating any possibility Doremus may have been engaged in work tasks at the time of the accident. Once SCPMG submitted Doremus’s deposition testimony that she was not working when the accident occurred, Chang was required to produce admissible evidence contradicting that testimony. Chang’s unsubstantiated speculation that Doremus might have been texting coworkers on her way to work was insufficient.
Click here to read the full article written by SCMV Shareholder Dan Eaton and published in The San Diego Union-Tribune.