Are You Liable for Employee Behavior During Their Commute?

A photo illustration depicting a distracted driver. (Pioneer Press photo illustration: Ben Garvin)

By Joshua Robert Dale

Managing Partner at Michel & Associates, P.C. – Employment & Business Law

While it is well-established in California that employers are vicariously liable for injuries their employees cause while those employees are “in the course and scope of employment,” one area where employers have historically been able to breathe a sigh of relief is with employee’s acts and omissions during commuting time coming and going from work or while those employees are at home and “off the clock.”  Thus, the employee who, during the morning commute to his or her job, gets into a collision with another driver, is generally deemed to not be in the course and scope of employment, and the injured third party is therefore prevented from suing the employer for such injuries under the doctrine ofRespondeat Superior. (See Hinman v. Westinghouse Elec. Co. (1970) 2 Cal.3d 956.)

Respondeat Superior is a common law doctrine that is universally applied in the U.S., subject to some minor exceptions, variations, and carve-outs depending on the jurisdiction or context.  It is an equitable doctrine that holds the employer equally and vicariously responsible for the negligent or willful acts of employees that occur in the course of the employee’s employment or which benefit the employer.  Determining when an employee is in the course and scope of his employment, or if his activity is actually benefitting his employer, have been the issues that have led to the most exceptions, variations, and carve-outs forRespondeat Superior’s different application and interpretation among the states and the federal government.  For example, while federal law recognizesRespondeat Superior liability for employers in many types of federal claims, it doesn’t allow such liability to automatically fall upon government entity employers when their employees are alleged to have committed civil rights violations in their capacity as government employees.  (See Monell v. Department of Soc. Svcs. (1978) 436 U.S. 658.)

For employers in California, some of the exceptions and carve-outs that the Legislature and courts have crafted to the Respondeat Superior doctrine pose some formidable challenges for employers.  Here are four of them that may describe a situation that your employees face on a daily basis, and which may pose liability for you.

Employers are liable for injuries caused by intoxicated employees who became intoxicated at employer parties.

Many employers still hold an annual holiday or Christmas party and serve their employees liquor as part of those celebrations.  Even when employers hold such parties off the work premises, after work hours, and don’t make attendance at such parties mandatory for employees, nonetheless, an employee who gets intoxicated at the party and later injures a third party – for example in a DUI collision – can make the employer also be liable to that injured third party.  (SeePurton v. Marriott International, Inc. (2013) 218 Cal. App. 4th 499.)  In general, employer-sponsored parties are considered beneficial to an employer, and therefore most normal employee activity during them – including imbibing — will allow for Respondeat Superior liability to the employer.

Purton is a particularly-concerning case for employers.  In that case, the intoxicated employee had been driven home from the employer’s party without incident, but thereafter drank more liquor and eventually left his home in his own vehicle, then causing the collision that injured the third party.  Notwithstanding the trip home and the additional liquor imbibed that hadn’t been served by the employer, the court held that a jury could conclude that the alcohol served by the employer during the party was factor in the intoxication that led to the collision, and thus found Respondeat Superior could be applied to hold the employer liable for the later collision.

The “coming and going” exception to Respondeat Superior liability can be discarded where the employer requires the employee to use her own car as part of the job

In California and other jurisdictions, commute time – the time “coming and going” from work – is not treated as “in the course and scope of employment,” and thus the Respondeat Superior doctrine is not applied in those circumstances to hold employers liable for injuries caused to third parties during such commutes.  California has recognized some exceptions to this exception, however, and in some circumstances employers will be held liable for injuries caused during the commute.

One such exception is where the employer requires the employee to use her personal automobile for work purposes.  In those circumstances, the coming and going exception to Respondeat Superior liability for the employer is discarded, the commute is now considered to be “in the course and scope of employment,” and injuries caused by the employee during the commute can therefore also be charged to the employer.  In Moradi v. Marsh USA Inc. (2013) 219 Cal. App. 4th 886, a saleswoman who was required by her employer to use her personal car for sales calls injured a motorcyclist while on her way home.  At the time of the injury, she had deviated from her normal route home to attend a yoga class and buy some yogurt, but the court found that these personal errands were minor in nature, and were normal and expected deviations during the commute.  Resultantly, the court found that the commute, even with the minor personal errands, were within the course and scope of employment and allowed the employer to be held liable.

Similarly, where an employer requires an employee to take a company vehicle home at the end of the work day, commute time will not be exempted fromRespondeat Superior liability – the employer will be responsible for injuries caused by the employee during his commute.  (See Halliburton Energy Services, Inc. v. Dep’t of Trans. (2013) 220 Cal. App. 4th 87; and Lobo v. Tamco (2010) 182 Cal.App.4th 297.)

Personal errands for the employer conducted by the employee during her commute can bring coming and going time within the scope of employment.

Another exception to the coming and going rule is where an employee’s commute to or from the job includes running errands for an employer.  Such errands may include personal errands for a supervisor, like picking up dry cleaning on a one-time basis, or more general errands, like picking up office supplies on a regular schedule.  Thus, even where an employee is generally not required to use their personal car for work purposes, if the employee is asked or even volunteers to do errands for a supervisor or employer during a particular commute, that circumstance will cause the coming and going exception to be ignored. Respondeat Superior liability will be applied to the employer for any injuries that occur during the commute where an errand for the employer was also being run, so long as the employee was still in the process of running the employer’s errand.  (See Tognazzini v. San Luis Coastal Unified School Dist. (2001) 86 Cal.App.4th 1053, and Felix v. Asai (1987) 192 Cal.App.3d 926.)

Where there is a foreseeable risk of sending an employee home, an employer can be liable for an employee who causes an injury during her commute.

A final example of a commute exception where an employer will be held liable is where the employer sends the employee home due to a work-related illness or injury, and as a result of the employee’s condition, she injures a third party.  InBussard v. Minimed, Inc. (2003) 105 Cal.App.4th 798, an employee was exposed to chemicals sprayed at her workplace, felt light-headed, but refused medical treatment.  In response to her complaints, the employer sent her home, and during the trip, she collided with another automobile.  It was found that because the employer knowingly sent an impaired employee home whose impairment was the result of a work-related activity, the employer could be held liable by the third party even though the third-party injury occurred during the employee’s homeward bound commute and would usually not be considered employment activity.

One way for employers to mitigate their liability for circumstances in which they are seemingly not controlling their employees – like a commute or after a Christmas party – but for which California public policy will still hold those employers liable under the Respondeat Superior doctrine, is for employers to carry “non-owned” automobile insurance coverage.  Another method for avoiding liability is for employers to implement policies clearly delineating the limited and controlled circumstances under which, e.g., employees can vary from their normal commuting activities.