Unpredictability in the Law Surrounding Employer Liability for Torts Committed by Employees Driving to and from Work

in Civil Litigation by Stephen Raucher

In the span of two weeks, two cases involving the doctrine of respondeat superior were decided in California resulting in opposite outcomes.  Under the legal theory of respondeat superior, employers are vicariously liable for the tortious acts committed by employees during the course and scope of employment if the acts could reasonably be foreseen by the employer.  Unlike the test for foreseeability in negligence, an event is foreseeable in the respondeat superior context if it is not so unusual or startling that it would seem unfair to include the loss resulting from it among other costs of the employer’s business.

Various rules have developed that either limit or eliminate an employer’s liability, including the “going and coming” rule.  Under this rule, an employer is exempt from liability for tortious acts committed by its employees while on their way to and from work because employees are said to be outside of the course and scope of employment during their daily commute.  An exception to the going and coming rule arises where the commute involves an incidental benefit to the employer, which is not common to commute trips by ordinary members of the work force.

In Moradi v. Marsh USA Inc., 219 Cal. App. 4th 886 (2013), decided on September 17, 2013, the employer was held vicariously liable when its employee collided with a motorcycle after work when driving to buy frozen yogurt and attend a yoga class on her way home.  Judy Bamberger commuted to and from work in her personal vehicle on a daily basis.  As part of her job, she was also required to use her car to attend off-site meetings and seminars, to transport and/or meet with clients in other locations, and to make presentations from two to five times a week.  The court stated that under the required vehicle exception, the key inquiry is whether there is an incidental benefit derived by the employer.  Further, the court emphasized that acts necessary to the comfort, convenience, health, and welfare of the employee while at work, though strictly personal to oneself, do not take one outside of the scope of employment.  The court found that it was a required condition for Bamberger to use her vehicle and that it was not so unusual or startling that an employee might stop for yogurt and to take a yoga class as necessary for her comfort, convenience, health and welfare.

By contrast, in Halliburton Energy Services, Inc. v. Department of Transportation, 220 Cal. App. 4th 87 (2013), decided on October 1, 2013, the employer was not held vicariously liable when its employee went to meet his family to purchase a car in between shifts.  Troy Martinez had an assigned company pickup truck to drive as part of his job.  Martinez was assigned to work on an oil rig near Seal Beach for an estimated period of 2-3 weeks.  Martinez lived in Caliente, California, which is about 50 miles from Bakersfield.  After his shift at the oil rig, Martinez drove approximately 140 miles to Bakersfield to meet his family at a car dealership to purchase a car for his wife.  On the way back to Seal Beach, Martinez was involved in an accident.  The court reasoned that even if the incidental benefit exception applied, there were undisputed facts establishing that Martinez was engaged in purely personal business at the time of the accident, and was not acting within the scope of his employment for Halliburton to be held vicariously liable.  The court acknowledged that minor and foreseeable deviations from a direct commute are within the scope of employment, but that if it is purely personal and has no nexus to his employment, then there is no liability imposed on the employer.  The court held that the trip to Bakersfield, which was 50 miles from his home, was not foreseeable and was purely personal.

It is possible that confusion will arise regarding the doctrine of respondeat superior considering the very fine distinctions made between cases.  Although Halliburton can be distinguished from Moradi in that Martinez was not on his way home, but went to purchase a car 50 miles away from his home, it is still difficult to predict how the court will rule in these cases.  The Halliburton court strongly emphasized that there must be a nexus between the deviation and employment.  However, in Moradi, there was arguably no nexus between Bamberger’s trip to buy frozen yogurt and take a yoga class and her job.  The Moradi court, on the other hand, emphasized that acts necessary to the comfort, convenience, health, and welfare of the employee do not take that employee outside of the scope of employment.  Martinez’s trip between shifts to purchase a car with his family could potentially be necessary to his comfort, convenience, health and welfare.  Unless the California Supreme Court clarifies the respondeat superior doctrine, the factually intensive analysis will likely lead to more confusion and unpredictable results.  Both Halliburton and Moradi are good law in California.