Woodland Hills personal injury lawyer Barry P. Goldberg is always looking for alternative sources of recovery, particularly in substantial injury and wrongful death cases. When the applicable bodily injury limits for the at fault driver are insufficient, it is imperative to look whether the driver was somehow in the “course and scope” of his employment. Since many of the severe accidents occur while the driver is “going or coming” from work, a thorough lawyer must consider whether any exceptions apply, such as “the Required Vehicle Exception.”
What is Respondeat Superior?
Under the theory of respondeat superior, an employer is vicariously liable, irrespective of fault, for the tortious conduct of its employees within the scope of their employment. (Diaz v. Carcamo (2011) 51 Cal.4th 1148, 1154.) This doctrine is based on “‘a deliberate allocation of a risk. The losses caused by the torts of employees, which as a practical matter are sure to occur in the conduct of the employer’s enterprise, are placed upon that enterprise itself, as a required cost of doing business. They are placed upon the employer because, having engaged in an enterprise which will, on the basis of past experience, involve harm to others through the torts of employees, and sought to profit by it, it is just that he, rather than the innocent injured plaintiff, should bear them; and because he is better able to absorb them, and to distribute them, through prices, rates or liability insurance, to the public, and so to shift them to society, to the community at large.’ ” (Hinman v. Westinghouse Elec. Co. (1970) 2 Cal.3d 956, 959–960.)
What is the Going and Coming Rule?
The courts recognize that an employee’s commute “to and from work is ordinarily considered outside the scope of employment so that the employer is not liable for [the employee’s] torts” committed during the employee’s commute. (Hinman, supra, 2 Cal.3d at p. 961.) This rule, commonly referred to as the “going and coming rule.”
What about the Required Vehicle Exception?
There are several exceptions to the going and coming rule that will result in an employer being liable for its employee’s tortious conduct that occurs during the commute. (Ducey v. Argo Sales Co. (1979) 25 Cal.3d 707, 722 These exceptions typically arise “where the trip involves an incidental benefit to the employer, not common to commute trips by ordinary members of the work force.” (Hinman, supra, 2 Cal.3d at p. 962. But this means not just any trivial benefit to the employer, but a benefit “sufficient enough to justify making the employer responsible for the risks inherent in the travel.”
The Huntsinger court summed up the Required Vehicle rule: “[W]hen 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.” Huntsinger v. Glass Containers Corp. (1972) 22 Cal.App.3d 803, 810, italics added.)
Whenever a large collision occurs, a careful personal injury attorney must consider whether the Required Vehicle exception may apply. This may not be very easy in most cases unless the at-fault driver has noticeable “tools of the trade” on board or was wearing a uniform. If you suspect that the at fault driver may have been required to use his vehicle for work purposes, it is important to undertake an investigation to determine the nature of the driver’s work and whether the vehicle could be considered “required.”
