Going and Coming Rule Bars Tort Action Filed Against CA Employer

A California appellate court recently affirmed a state trial court’s decision granting summary judgment in favor of a security guard services company that had been sued following a motor vehicle accident in which one of its employee fell asleep and drove into oncoming traffic as she traveled home after her work shift [Feltham v. Universal Protection Service, LP, 2022 Cal. App. LEXIS 268 (Mar. 30, 2022)]. Noting that under the going and coming rule, an employer ordinarily is not vicariously liable for torts committed by an employee commuting to or from work—the trial court utilized, but did not refer to California’s “required vehicle rule” by name (see Larson’s Workers’ Compensation Law, § 15.05)—the appellate court stressed that the employee was not required to bring her vehicle to work and the accident occurred well after the employee’s finished shift.

Background

The defendant company provided security guard services at several University of California, San Francisco medical facilities. UCSF was responsible for supervising the guards. The defendant company (Defendant) hired Villegas as a security guard and assigned her—at her request—the overnight shift, from 11:00 p.m. to 7:00 a.m., five nights per week. Defendant did not require Villegas to use her car for work and did not dictate how she traveled to and from work. Villegas’s mother often drove Villegas from their shared home in the East Bay to UCSF and picked Villegas up when Villegas’s shift ended. After dropping her mother off at work in the Inner Richmond neighborhood, Villegas drove home.

Villegas frequently requested extra shifts and often worked six shifts per week rather than five. On the day of the accident, Villegas began her fourth straight day of work. When her shift ended the following morning, Villegas’s mother picked Villegas up. Villegas dropped her mother off at work, then began driving home. About an hour after finishing her shift, and as she neared her home, Villegas fell asleep and drove into oncoming traffic, hitting and severely injuring Feltham, who was riding a motorcycle. Feltham’s husband—who was also riding a motorcycle—witnessed the accident.

The Felthams sued Defendant, alleging claims for motor vehicle negligence, third party negligence, negligent infliction of emotional distress, and loss of consortium. In their third party negligence cause of action, plaintiffs alleged Defendant, as Villegas’s employer, negligently “required” and “allowed” Villegas “to work excessive hours so as to fatigue and tire her to the point of her falling asleep at the wheel in the course and scope of her employment.” Plaintiffs further alleged Defendant negligently “failed to provide transportation” for Villegas, who fell asleep while driving in the “course and scope of her employment,” thereby causing the collision and Feltham’s injuries.

Trial Court Grants Summary Judgment

The trial court granted Defendant’s summary judgment motion. It concluded Defendant was exempt from liability under the going and coming rule based on undisputed evidence that at the time of the accident, Villegas had finished her shift and was on her way home. The court declined to apply the special risk exception, concluding there was no evidence that Defendant caused Villegas to work excessive hours or that her schedule caused her to be fatigued. The trial court observed that Villegas had been off work for 16 hours before she returned to work a normal shift of eight hours on the day of the accident.

Court of Appeal Affirms

The Court of Appeal noted that the theory behind the going and coming rule is that the employment relationship is deemed to be suspended from the time the employee leaves work until the employee returns or, put another way, said the Court, in commuting, the employee is not rendering service to the employer. The Court stressed that the going and coming rule applied to the case at bar.

“Special Risk” Exception Did Not Apply

The Court acknowledged that the special risk exception to the going and coming rule applied to circumstances in which the risk of injury was created by the enterprise, within the scope of the employee’s employment, and it proximately caused the injury. In such instances, the cost of injury was properly imposed upon the enterprise. Nevertheless, to invoke the special risk exception, the plaintiff must establish a causal nexus between her injury and the employee’s job. Stated differently, the Court said the special risk exception applied if:

1. But for the employment the employee would not have been at the location where the injury occurred and
2. The risk was distinctive in nature or quantitatively greater than risks common to the public.

The Depew Decision

The Court said Depew v. Crocodile Enterprises, Inc. (1998) 63 Cal.App.4th 480, 73 Cal. Rptr. 2d 673 was instructive. There, a restaurant employee fell asleep while driving home from work and caused a fatal car accident. The heirs of the deceased driver sued the employer, alleging that it had acted negligently by subjecting the employee to excessive work hours and then allowing him to drive home in a state of exhaustion. In affirming the trial court’s grant of summary judgment for the employer, the Depew court declined to apply the special risk exception, holding the employee’s work schedule “did not create a ‘special risk’ that he would injure or kill someone by falling asleep while driving home.” (Id. at p. 489.)

In Depew, after working 17.5 hours, the employee had 16 hours off before he returned to work, where he put in only six hours before driving home. The Depew court said that a break of 16 hours between shifts, followed by 6 hours of work, was not the type of excessive workload that makes falling asleep at the wheel and killing another driver a generally foreseeable consequence of operating a restaurant. The employment must be such as predictably to create the risk employees will commit torts of the type for which liability is sought.

Routine Commute

Here, Villegas worked a regular eight-hour shift before the accident. Prior to beginning that shift, she had 16 hours off. Defendant had every reason to assume that Villegas, upon reporting to work had received sufficient rest during her time off. The Court acknowledged that in several earlier decisions had held that requiring an employee to work a double shift may—under certain circumstances—constitute a special errand.

That was not the situation here, stressed the Court. While Villegas had certainly worked double shifts earlier in the week before the accident, here she had not worked double shifts before the shift preceding the accident. Her commute home was routine and the trial court was justified in granting Defendant’s motion for summary judgment.