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On Behalf of | Jan 10, 2020 | Firm News

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Mark and Eric Bingener appeal the trial court’s grant of the City of Los Angeles’s (City) motion for summary judgment. The City argued that it was not liable for the injuries caused by Kim Rushton because he was not acting within the course of his employment at the time of the accident.

Specifically, the City argued that the coming and going rule insulated it from liability. It is undisputed that on February 24, 2015, an employee of the City, Rushton, struck and killed pedestrian Ralph Bingener. It is also undisputed that when the accident occurred, Rushton was commuting to work in his own car and on his usual morning route and was not performing work for the City while driving to work.

The parties also agree that, on the day of the accident, Rushton was driving to his workplace at the Hyperion Treatment Plant, where he worked in a water quality lab checking water for semi-volatile organic compounds. A self-described “lab rat,” Rushton’s job did not require him to be in the field or use his personal automobile for his employment.

The City moved for summary judgment on these uncontroverted facts, arguing that because the “going and coming rule” applied, without exception, to this case, the City was not liable under respondeat superior for the accident. Plaintiffs countered that there was a dispute of fact regarding an exception to the going and coming rule–the “workspawned risk” exception. This exception applies when an employee endangers other with a risk arising from or related to work. For example, where an employee gets into a car accident on the way home after drinking alcohol at work with his supervisor’s permission, courts have carved out an exception to the going and coming rule. Where, as in such a case, there is a  sufficient link between the drinking and the accidents as to make the collisions neither starling nor unusual, the courts have found that the risk was one that may be regarded as typical of or broadly incidental to the employer’s enterprise. (Childers v. Shasta Livestock Auction Yard, Inc. (1987) 190 Cal.App.3d 792; see Bussard v. Minimed, Inc. (2003) 105 Cal.App.4th 798, 803, 807 (Bussard) [employee’s exposure to pesticides during work hours impaired her ability to safely drive home and, therefore, the going and coming rule did not apply].)

Under the doctrine of respondeat superior, an employer is liable for the torts of its employees committed within the scope of their employment. (Ducey v. Argo Sales Co. (1979) 25 Cal.3d 707, 721.) The burden of proof is on the plaintiff to demonstrate that the negligent act was committed within the scope of employment. (Ibid.) But where, as here, the facts relating to the applicability of the doctrine are undisputed, the question of its application is one of law. (Hinman v. Westinghouse Elec. Co. (1970) 2 Cal.3d 956, 962; Jeewarat v. Warner Bros. Entertainment Inc. (2009) 177 Cal.App.4th 427, 434.) The doctrine is based upon a policy that the employer should be responsible for losses caused by the torts of its employees that occur in the conduct of the employer’s enterprise.  (Depew v. Crocodile Enterprises, Inc. (1998) 63 Cal.App.4th 480, 486.)

An employee is generally not considered to be acting within the scope of his employment when going to or coming from his or her regular place of work. (Ibid.; see also Bussard, supra, 105 Cal.App.4th at p. 804.) This rule—the “ ‘going-and-coming rule’ ”—has several exceptions, which are generally understood to encompass those situations in which the employer derives some benefit from the employee’s trip. (Depew v. Crocodile Enterprises, Inc., supra, 63 Cal.App.4th at p. 486.) In such instances, the employer’s responsibility extends beyond his “actual or possible control of the servant to injuries which are within the ‘risks of the enterprise.’ ” (Hinman v. Westinghouse, supra, 2 Cal.3d at p. 960.) For example, where the employer has instructed an employee to use his car to recruit other workers and is furnishing the gas for the trip, the risk of the enterprise surely encompasses the employee’s travel to and from the remote work site. (Harvey v. D & L Constr. Co. (1967) 251 Cal.App.2d 48, 51 [special errand exception].) Similarly, where the employee’s work involves both office work and field work, it is immaterial whether he is driving to his office or driving to other locations. (Richards v. Metropolitan Life Ins. Co. (1941) 19 Cal.2d 236, 243 [automobile use as a condition of employment].) One other exception to the “ ‘ “going-and-coming rule” ’ ” arises where an employee endangers others with a risk inherent in or created by the enterprise. In such a situation, the risk is foreseeable and the employee’s conduct is not “so unusual or startling” that it would seem unfair to include the loss in the employer’s costs of doing business. (Bussard, supra,105 Cal.App.4th at p. 804; Farmers Ins. Group v. County of Santa  Clara (1995) 11 Cal.4th 992, 1004.) For example, in Bussard, the employer’s improper use of pesticides at the work place, which sickened and rendered an employee unable to drive safely, caused that employee to rear-end another car on her way home. (Bussard, at p. 801.) In such an instance, conditions for the occurrence of the accident had been created within the scope of the driver’s employment. (Ibid. at pp. 805–806.) By contrast, “ ‘[i]f the employee’s tort is personal in nature, mere presence at the place of employment and attendance to occupational duties prior or subsequent to the offense will not give rise to a cause of action against the employer … .’ ” (Farmers, at p. 1005.)

Applying this exception to the facts here, plaintiffs argued that the City knew about Rushton’s health conditions and how it might impair his ability to drive because certain medical expenses were being paid for Rushton’s back injury through the City’s worker compensation program. According to plaintiffs, Rushton’s then-present injuries and medications rendered him unfit to drive. Despite this knowledge, the City allowed Rushton to return to work prematurely without placing any restrictions on his driving. Given that Rushton was impaired and unfit to drive, his driving to work was a foreseeable risk of the City’s activities. The City, should, therefore, be held liable for “a negligently created work-spawned risk endangering the public.”

The California Court of Appeal affirmed the judgment. At summary judgment, plaintiffs failed to adduce sufficient facts upon which they could establish a triable issue of fact on their claim that Rushton’s accident was a foreseeable event arising from or relating to his employment for the City at its water plant laboratory. Nothing about the enterprise for which the City employed Rushton made his hitting a pedestrian while commuting a foreseeable risk of this enterprise. The “going and coming rule” was created for precisely  the situation presented here and its application in this case precludes plaintiffs’ claim of vicarious liability against the City.

See Bingener, et al., v. City of Los Angeles, et al.

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Robert Rodriguez has litigated well over 100 family law cases and civil litigation matters including personal injury motor vehicle cases, dog bite and slip & fall cases, breach of contract, defamation & invasion of privacy, fraud, unfair business practice, malicious prosecution, workplace and employment matters including sexual harassment, wrongful termination, wage & hour violations, discrimination pursuant to the FEHA, Gov’t Code §§ 12940 et seq., violations of the FMLA & Pregnancy Leave, Civil Rights  discrimination pursuant to 42 U.S.C. § 1983 and Title VII of the 1964 Civil Rights Act in the State of California and California federal district courts.

* Disclaimer – Robert Rodriguez is licensed to practice only in the State of California & this analysis is applied only under State of California law.  Robert Rodriguez is also admitted to practice in the U.S. District Courts, Central, Northern & Eastern Districts of California.

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