In the following case, an employer required an employee to drive his personal vehicle to the company yard and then drive the company truck from the yard to the jobsite, transporting his coworkers and construction materials in the company truck. One day, the employee injured a motorcyclist while he was driving his own car to the company yard. The issue on appeal was whether the employee was acting within the course and scope of his employment when the accident occurred and, if so, whether the company was liable for the injuries caused by his negligence.
Just the Facts
“Chris” worked for Modern Alloys Inc. as a cement/mason finisher. He worked 8-hour shifts, which began and ended at the jobsite where he performed his work.
Modern Alloys required Chris to first go to its “yard” in the city of Stanton at 8:00 p.m. before he began his 9:00 p.m. to 5:00 a.m. shift at the jobsite. Once he arrived at the yard, he was responsible for driving the company’s 2-ton dump truck from the yard to the jobsite. He then had to return the truck to the yard at the end of his shift. He was expected to take his coworkers to the jobsite in the company truck, which was loaded with construction materials.
At 7:30 p.m. on October 7, Chris was driving his own vehicle from his home to Modern Alloys’ yard when he collided with a motorcyclist, “David.” David filed a lawsuit against Modern Alloys alleging the company was responsible for Chris’ negligence.
Modern Alloys asked the trial court to dismiss the case without a trial based on the “going-and-coming” rule. Under that rule, an employee going to or coming from work is ordinarily considered to be acting outside the scope of his employment, so the employer isn’t liable for his negligence. David argued that Modern Alloys was liable under the “business errand” exception to the going-and-coming rule.
The trial court agreed with Modern Alloys, finding that Chris was commuting to his work, and therefore, he wasn’t acting within the scope of his employment. David appealed.
Was Chris Engaged in A Business Errand?
Under the going-and-coming rule, an employee commuting to and from work is ordinarily considered to be acting outside the scope of his employment, which means his employer is not liable for his negligence. The employment relationship is considered “suspended” while an employee is commuting to and from work because he isn’t rendering service to his employer during that time.
However, an exception to the going-and-coming rule occurs when an employee commits a negligent act while he’s engaged in a “special errand” or a “business errand” for the benefit of his employer during his commute. Whether an employee is on a business errand for the benefit of his employer is usually a question of fact for the jury to decide after considering and weighing all the relevant circumstances.
In this case, Chris transported Modern Alloys’ truck, workers, and materials from its yard to the jobsite. However, the company didn’t pay him for any of his driving time between the yard and the jobsite. Accordingly, there was a reasonable inference that he was on a business errand for Modern Alloys’ benefit while he was commuting from his home to the yard.
The appellate court noted that a jury may need to resolve several questions to determine if Chris was on a business errand. The court laid out some of those questions:
Was the “workplace” the yard where Chris first arrived, or was it the jobsite where he applied his skills as a concrete worker and was paid for that work? Was it an incidental benefit for Modern Alloys to have Chris—a masonry worker—first arrive at the yard and drive material and coworkers in a two-ton truck to a jobsite without being paid? Is it common for a commuter to drive from his home to a location where he will not be paid for his work, rather than to drive directly to the jobsite where the employer will pay him for his work? Would Chris have driven directly from his home to the jobsite if not expected to do otherwise?
The appellate court observed that public policy supports finding Modern Alloys vicariously liable for its employee’s negligence in this case. If the company had paid Chris from the time he arrived at its yard, then it arguably wouldn’t be reasonable to hold it liable for his negligence before he arrived at the yard because his drive would be considered part of his regular commute to work.
However, Modern Alloys required him to transport its truck, equipment, and workers from its yard to a jobsite without compensating him for his efforts, and it enjoyed the fruits of his labor without incurring any additional cost. Accordingly, it is reasonable to apply the business errand exception in this case. Sumrall v. Modern Alloys, Inc. (California Court of Appeal, 4th Appellate District, 4/13/17).
Bottom Line
An employer is vicariously liable for the conduct of its employees when they are acting within the scope of their employment. Although an employee’s commute is generally considered to be outside the scope of his employment, there is an exception if the employee is engaged in a business errand while he’s commuting.
In this case, it would be reasonable for a jury to find that Chris was engaged in a business errand for Modern Alloys when he was driving from his home to the company yard to pick up the company truck and transport coworkers and construction materials to the jobsite.
This issue might have been avoided altogether if the company had paid Chris from the time he arrived at its yard rather than at the jobsite. If the company had done that, his drive to the yard most likely would have been considered part of his normal commute rather than a special errand.
Although this isn’t a wage and hour case, employers should also be mindful of the requirement that nonexempt employees must be paid for all hours they work. Accordingly, if you require a nonexempt employee to report to a particular location (e.g., to pick up equipment or receive an assignment) before he travels to another location to perform work, you should pay him from the time of his arrival at the first location.
Cathleen S. Yonahara, an editor of California Employment Law Letter can be reached at Freeland Cooper & Foreman LLP in San Francisco, yonahara@freelandlaw.com.