Should an Employer be Held Vicariously Liable for a Motor Vehicle Accident Its Employee Caused on Her Way Home After Working the Overnight Shift?

A California Court of Appeals affirmed an employer’s Motion for Summary Judgment on that question, finding that the employer was not vicariously liable in a recent opinion. The case involves Clanisha Villegas, who worked for Universal Protection Services, LP, as a security guard on the University of California, San Francisco campus. Ms. Villegas had worked at UCSF for a year previously, before she left her job to have a baby. When she reapplied to her old job, Villegas applied to work the night shift, because she had no childcare for her newborn child during the day. UCSF, knowledgeable of her situation at home, obliged her request and she was scheduled to work from 11 pm to 7 am, five days a week.

A little more than a month after she started her second stint at UCSF, Villegas finished her fourth shift in a row of five shifts that week. About an hour after leaving work, Ms. Villegas fell asleep at the wheel and drove into oncoming traffic, injuring Ms. Lucy Feltham, who was riding a motorcycle. In previous weeks, she had picked up an extra sixth day of work.

Ms. Feltham and her husband sued Villegas and her employer, Universal Protection, in Alameda County Superior Court, Case # RG18892902. Plaintiffs’ Complaint contained four causes of action: motor vehicle negligence, third party negligence, negligent infliction of emotional distress and loss of consortium. Plaintiffs’ theory against Universal Protection was that it negligently hired Villegas to work night shifts knowing that she had daytime obligations (her newborn) that would keep her from sleeping. It was also allegedly negligent for allowing Villegas to take extra shifts on her days off and to not implement countermeasures to ensure Villegas was not chronically fatigued and sleep deprived.

Universal Protection moved for Summary Judgment on the basis that Ms. Villegas was not in the course and scope of her employment at the time of the incident. Universal Protection’s Motion for Summary Judgment relied on the “coming and going” rule, which holds that, absent an exception, an employer is not vicariously liable for the actions of its employee when that employee is traveling to and from work. Plaintiff opposed Summary Judgment on the basis that Universal Protection knew or should have known that Villegas would not have had adequate sleep to perform her job and make it home safely and that Universal Protection allowing Villegas to take extra shifts were substantial factors in the collision. Universal Protection replied to Plaintiff’s Opposition, noting that there was no causal link between Villegas’ employment and the incident and that Villegas’ sleep deprivation was due to her taking care of her child, activity totally unrelated to her employment with Universal Protection.

The Superior Court granted Summary Judgment finding that the accident was not a foreseeable consequence of her employment. In support of that finding, the Court denied Plaintiffs’ request to apply the “special risk” exception to the “coming and going” rule, which would have held Universal Protection vicariously liable because the nature of Villegas’ employment was in work that was likely to involve a special risk of harm to the community. The Court found that because Universal Protection had not caused Villegas to work excessive hours or that her schedule had caused her to be fatigued, the “special risk” exception did not apply.

On Appeal, Plaintiffs asserted two grounds for reversal, that the facts demonstrated that the special risk exception applied, and that the Superior Court could not have granted Summary Judgment because the Superior Court failed to address Plaintiffs’ claims for negligent hiring, retention and supervision.

The First Appellate Division, in an opinion issued on March 30, 2022 in case A161190, was unpersuaded on either front and affirmed Summary Judgment in Universal Protection’s favor. The Appellate Court grounded its affirmance on the grounds that Universal Protection had no reason to believe that Villegas showed up to her shift the night before the incident without sufficient rest, nor did her work as a security guard, nor working the overnight shift, cause a “special risk” of harm. In other words, there was no evidence that employer-caused fatigue was a proximate cause of the incident. With respect to negligent hiring, retention and supervision, the Appellate Court found that Plaintiffs had not pled such a claim in their Complaint, and thus the Superior Court was correct in not addressing it.

The Appellate decision in this matter reaffirms the “coming and going” rule and makes clear that the “special risk” exception only applies to risks attached to the employment itself, not facts and circumstances outside of the course and scope of employment.

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April 5, 2022