California Court Declines to Accept Broad Exception To Going & Coming Rule

In Morales-Simental v. Genentech, Inc. (A145865, filed 9/22/17, publication order 10/19/17), the California Court of Appeal, First Appellate District rejected the plaintiffs’ broad interpretation of the “special errand” exception to the “going and coming” rule. The decision adds to further understanding of the limits to employer liability under this often contested doctrine.

Marisol Morales was a passenger in a vehicle that was struck by a Genentech employee, Vincent Inte Ong. Morales was killed in the accident. During the police investigation of the incident, Ong, who worked the night shift and was employed as a lead technician on Genentech’s Equipment Preparation division, indicated that he was driving to Genentech on his night off to collect resumes for upcoming interviews. The family of the decedent brought a wrongful death lawsuit against Ong and Genentech. They alleged Genentech was liable under the doctrine of respondeat superior since Ong was in the course of his employment at the time of the accident. Genentech moved for summary judgment and, despite a tentative ruling in the plaintiffs’ favor, the court entered judgment in favor of Genentech.

On appeal, the issue presented to the Court was whether Ong was acting within the scope of his employment with Genentech when the accident occurred. Genentech argued that summary judgment was proper because the “going and coming” rule provides that an employee commuting to and from work is typically outside the scope of employment, and the employer is not liable for the employee’s tort occurring during that commute. Plaintiffs argued in response that the “special errand” exception applied, which provides that an employee is within the scope of his employment while performing an errand either as part of his regular duties or at the specific order or request of his employer.

The plaintiffs’ principal argument was that Ong, as a shift lead tasked with hiring, could order himself to perform a special errand in connection with that task. The Court rejected this argument, finding that it was not grounded in the extensive body of “going and coming” case law and would unreasonably extend the “special errand” exception to include “anyone with a plausible claim to supervisorial authority.” The Court noted that the plaintiffs relied heavily on several workers’ compensation cases which have traditionally construed the scope of an employer’s liability more broadly than tort cases. California workers’ compensation cases apply the same law as in tort, but often find a more expansive interpretation. The WCAB rationalizes that an exception will arise whenever the employee is providing a benefit or service to the employer during their commuting time. In the instant case, the Court noted that workers’ compensation decisions, while often helpful in determining whether an employer is vicariously liable, are not controlling precedent in tort cases.

The ruling in Morales-Simental strengthens the existing law regarding the “going and coming” rule of respondeat superior, which can be a critical defense in cases based on vicarious employer liability. Employers can hope to be successful in arguing that the courts must be circumspect about imposing employer liability based on the theory that an employee with limited supervisorial authority unilaterally authorized himself or herself to undertake a special errand.

The attorneys in Haight’s Employment & Labor Practice Group provide counsel to their clients regarding workforce management and business practices to limit employment-related risks which arise from the workplace or their business operations.

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October 24, 2017