South Dakota Court “Borrows” Going and Coming Rule for Negligence Action
The Supreme Court of South Dakota recently affirmed a trial court’s decision that granted summary judgment to a municipality and a volunteer fire department on the basis that the department’s rookie member could not have been acting in the scope of his employment at the time of a serious vehicle accident because he had been commuting to a meeting [Tammen v. Tronvold, 2021 SD 56, 2021 S.D. LEXIS 107 (Sept. 22, 2021)]. Notwithstanding that the going and coming rule relates to whether an injured employee should recover workers’ compensation benefits and not to the unrelated issue of whether that employee’s employer should be liable in tort to a third-party, the appellate court applied going and coming analysis, agreeing that the plaintiffs had failed to show that an exception to the rule applied to the case.
Background
Tronvold, a rookie member of the Pierre Volunteer Fire Department (PVFD), not yet a certified firefighter, was involved in a serious motor vehicle accident when he drove through a stop sign and was struck by a motorcycle ridden by the plaintiffs. As a result of the collision, both plaintiff were severely injured. At the time of the accident, Tronvold was driving toward Pierre to attend a monthly meeting at the fire station.
The plaintiffs filed a civil action against Tronvold, alleging that he had operated his vehicle in a negligent manner. The plaintiffs also sued the City of Pierre and the PVFD, claiming those defendants were liable under the doctrine of respondeat superior. The trial court granted summary judgment to the City and the PVFD, finding that Tronvold was not acting within the scope of his employment when the collision occurred. The plaintiffs appealed.
Respondeat Superior Well Established
The appellate court initially noted that the doctrine of respondeat superior was well established in South Dakota. It acknowledged that in order for the employer to be liable for the employee’s tort, the tort had to have occurred within the scope of the employee’s employment. It acknowledged further that the scope of employment concept was “vague but flexible” (Opinion,¶18). It added that when confronted with deciding whether an agent’s negligent act falls within the scope of his or her employment, the court applied a two-prong test:
- Whether the purpose of the act was to serve the principal and
- Whether the act was foreseeable.
Foreseeability?
The appellate court added that whether an employee was within the scope of employment often involved questions of foreseeability that may require resolution by the trier of fact. Without so much as taking a breath, the court concluded,
However, this case does not require us to consider questions of foreseeability. Rather, we must determine whether Tronvold’s actions fall within the going and coming rule, which precludes an employer’s liability, as a matter of law, when an employee is “going to and coming from work …” (Opinion, ¶ 20).
Going and Coming Rule
The court then provided a rather complete review of South Dakota’s version of the going and coming rule, which is in line with the vast majority of states. It stressed that at the time of the accident, Tronvold was not responding to an emergency and there was no evidence that Tronvold’s vehicle served a special purpose for his commute to the meeting. Moreover, said the court, had Tronvold arrived at the fire station as planned, his vehicle would have served no special purpose after his arrival.
As for the use of a workers’ compensation doctrine such as the “going and coming” rule in a tort action environment, the court noted that there were “significant distinctions between the principles animating workers’ compensation coverage and the doctrine of respondeat superior” (Opinion, ¶ 29]. The court continued:
The first distinction between these two bodies of law stems from the differing nature of the proceedings. Under workers’ compensation law, the employee seeking workers’ compensation benefits forfeits his or her right to bring a tort action against the employer for workplace injuries in exchange for a limited remedy that is quick and certain [citing Harn v. Cont’l Lumber Co., 506 N.W.2d 91, 95 (S.D. 1993).
The court continued that in contrast, the doctrine of respondeat superior was grounded upon “a deeply rooted sentiment that a business enterprise cannot justly disclaim responsibility for accidents which may fairly be said to be characteristic of its activities” (Opinion ¶ 30). The court added that “[t]his distinction suggests circumspection before adopting aspects of the former into the latter.”
The court than analyzed various case decisions, including the U.S. Supreme Court’s decision in Cardillo v. Liberty Mut. Ins. Co., 330 U.S. 469, 67 S. Ct. 801, 91 L. Ed. 1028 (1947), in which the Supreme Court said exceptions to the going and coming rule should “relate to situations where the hazards of the journey may fairly be regarded as the hazards of the service” [330 U.S. at 479].
The appellate court finished by saying that while it did not foreclose consideration of exceptions to the going and coming rule in an appropriate respondeat superior case in the future, it declined to apply them here because neither the City nor the PVFD exercised sufficient control nor received a sufficient benefit from Tronvold’s commute.
Short Comment
I wonder if the appellate court can hear itself. When is it the appellate court’s job to find that a defendant exercised “sufficient control” over anything? When an appellate court finds that the defendants did not receive a “sufficient benefit” from Tronvold’s commute, how is that not an impermissible finding of fact?
It isn’t so much that I have a problem with the trial court’s summary judgment or even the appellate court’s affirming the trial court’s decision. It’s the use—by both courts—of the going and coming rule in a case where it should have had no bearing.
As I noted above, the appellate court adequately set out the going and coming rule, indicating that it “precludes an employer’s liability, as a matter of law, when an employee is going to and coming from work” (Opinion, ¶ 20). That, however, begs the question: “what kind of employer’s liability?” The doctrine precludes the employer’s liability for workers’ compensation benefits, not for a plaintiff’s damages in a case sounding in negligence.
If I can use a legal analogy, the doctrine of res judicata can only be utilized when the issue in the earlier decision was essentially the same as that in the second legal conflict. If the issues are different, the doctrine doesn’t apply. I think trial court’s should follow a similar pattern when it comes to the going and coming rule. That is to say that since the rule has at its heart a determination of whether or not the injured employee should receive workers’ compensation benefits, it should hold no sway in determining whether the employer of that employee should be liable in tort to a separate party. Trial courts should apply tort principles, not borrow them from the workers’ compensation arena.