Vehicle-Use Exception to the Going-and-Coming Doctrine

It is well settled that an employer is liable for the torts committed by an employee when the employee is within the course and scope of the employment.  (See CACI 3701.) Whether an employee is within the course and scope of their employment is determined by whether the conduct is reasonably related to the tasks that the employee was hired to perform, or if it was reasonably foreseeable in light of the employer’s business.  (CACI 3720.) Although California case law consistently interprets “scope of employment” broadly, there are clear occasions when an injured plaintiff is left without any recourse against the employer.  (John R. v. Oakland Unified Sch. Dist. (1989) 48 Cal.3d 438, 447.)

Under the going-and-coming doctrine, an employee is outside the scope of employment when engaged in the ordinary commute to and from his place of work.  (Blackman v. Great American First Savings Bank (1991) 233 Cal.App.3d 598, 602.)  Under this general rule, an employer is not responsible if their employee causes an accident on their way to or from work.  This often leaves injured plaintiffs with only a minimum personal auto policy and no recourse against an employer.

Thankfully, courts have carved out an exception to the going-and-coming doctrine in the form of the vehicle-use exception.  “[I]f an employer requires an employee to drive to and from the workplace so that the vehicle is available for the employer’s business, then the drive to and from work is within the scope of employment.” (CACI 3725.) (CACI 3725 [“Vehicle Use Exception” to “Coming & Going Rule”]; see Lobo v. Tamco (2010) 182 Cal.App.4th 297, 301.) This principle applies “if the use of a personally owned vehicle is either an express or implied condition of employment, or if the employee has agreed, expressly or implicitly, to make the vehicle available as an accommodation to the employer and the employer has ‘reasonably come to rely upon its use and [to] expect the employee to make the vehicle available on a regular basis while still not requiring it as a condition of employment.’” (Lobo v. Tamco, supra, 182 Cal.App.4th at p. 301, citations omitted and emphasis added.)  The rationale is that when an employee is expected to use his vehicle for business, and the use benefits the employer, accidents are foreseeable.  (Huntsinger v. Glass Containers Corp. (1972) 22 Cal.App.3d 803, 810.)

In Huntsinger, the defendant employer’s “technical service representative,” Mr. Fell, used his own pickup truck to perform his duties to consult with customers in person at the customers’ plants as the need arose.  One day, as the service representative drove home from his employer’s office in his personal vehicle, he collided with a motorcyclist.  (Id. at p. 806.) The trial court granted a nonsuit in favor of the employer based on the coming-and-going rule.  (Id. at p. 805.)

In reversing the nonsuit, the court of appeal held that the same standard that applies in workers’ compensation cases regarding the required vehicle exception to the coming-and-going rule also applies in tort cases.  (Id. at pp. 808-809.) The court compared “ordinary members of [the employer’s] work force” who were not expected to use their personal vehicles to perform their job and “would not, therefore, be required to drive their vehicles to and from work.” (Id. at p. 810.) The commutes of these employees would be “a matter of complete indifference to” the employer.  (Ibid.) In contrast, the service representative “was required to use his automobile in carrying out his employment duties” to visit customers’ plants, which “constituted a benefit to respondent.” The court continued, “Unless Fell drove his vehicle to and from the office, he would not have it available for the beneficial use of respondent when it was needed.  His driving his vehicle to and from the office was, therefore, incidentally beneficial to respondent in a manner not common to commute trips by ordinary members of its work force.” (Ibid.) Consequently, the court held that the jury could therefore find the employer liable for Fell’s collision because “when a business enterprise requires an employee to drive to and from its office in order to have his vehicle available for company business during the day, accidents on the way to or from the office are statistically certain to occur eventually, and, the business enterprise having required the driving to and from work, the risk of such accidents are risks incident to the business enterprise.” (Ibid.)

Since Huntsinger, dozens of cases have held that the required vehicle exception to the going-and-coming rule can impose liability on an employer who benefits from an employee’s use of his personal vehicle to perform his duties.  (E.g., Largey v. Intrastate Radiotelephone, Inc. (1982) 136 Cal.App.3d 660, 668; Moradi v. Marsh USA, Inc. (2013) 219 Cal.App.4th 886, 912; Lobo v. Tamco, supra, 182 Cal.App.4th at p. 303.)

This exception can allow you to bring in an employer defendant and open the door to a much larger recovery for your client.