Employers May Be Liable For Accident Occuring on Employee's Commute Home
Lobo v. Tamco, a California Court of Appeal decision that came out this week, involves an employee of a steel manufacturer who, as he was leaving the premises of the employer to commute home in his own vehicle, collided with a motorcycle police officer, resulting in the officer’s death. The officer’s family filed a wrongful death suit against the employer, alleging vicarious liability under the respondent superior theory because the employee was acting in the course and scope of his employment when the accident occurred. The employer argued that it could not be liable for the accident under the “going and coming” rule which establishes that employees are outside the course and scope of their employment while on their daily commute. Based on this rule, the trial court granted summary judgment in the employer’s favor, exempting the employer from liability.
On appeal, the plaintiffs argued that the employer could be liable under the “required-vehicle” exception to the going and coming rule. This exception applies where a personally-owned vehicle is either an express or implied condition of employment. In this case, as part of the employee’s position as a quality control manager, the employee was required to visit customer sites along with a sales engineer when a customer reported a problem with the product. The employee testified that he did not have to make these trips often, and when he did, he usually went in the engineer’s car. In fact, the employee testified that in the 16 years that he worked for the employer, he used his own car to drive to a customer’s location 10 times or fewer. The employer argued that, while the employee’s presence was essential when customers had quality complaints, driving was not an integral part of the employee’s job. The Court of Appeal sided with the plaintiffs, finding that the employee’s commute was within the course and scope of his employment because the employer “requires or reasonably relies upon the employee to make his personal vehicle available to use for the employer’s benefit and the employer derives a benefit from the availability of the vehicle.” The Court noted that, “the fact that the employer only rarely makes use of the employee’s personal vehicle should not, in and of itself, defeat the plaintiff’s case.” The Court reversed the trial court's entry of summary judgment for the employer.
This ruling puts employers on notice that by requiring employees to utilize their personal vehicles to perform any aspect of their job, an employer may be opening itself up to potential vicarious liability for conduct occurring outside of work hours. Employers may want to re-examine positions that require infrequent use of the employee’s personal vehicle to determine if the position can be restructured to eliminate any need for personal vehicle use.