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Court Applies Comp Principles as Guidance to Reject Vicarious Liability for Employer

By WorkCompCentral

Wednesday, September 27, 2017 | 1203 | 0 | 0 min read

A California appellate court ruled that an employer could not be held vicariously liable for the alleged negligence of an employee in causing a fatal car accident, since the employee was not acting within the scope of his employment at the time of the collision.

Case: Morales-Simental v. Genentech, No. A145865, 09/22/2017, unpublished.

Facts: Early on the morning of Dec. 13, 2012, a vehicle operated by Vincent Inte Ong collided with a vehicle driven by Louis Deandre Gonzalez Jr. on the San Mateo Bridge. Marisol Morales was a passenger in Gonzalez’s vehicle and was killed in the collision.

During an interview at the scene of the accident, Ong told the police he was driving to a Genentech facility in South San Francisco to pick up some resumes for upcoming interviews. Ong worked for Genentech as a lead technician on the night shift and participated in the company’s hiring process.

He was not scheduled to work on the night of the accident and was using his personal vehicle when the accident occurred.

Procedural history: Morales’ family sued Ong, asserting that his negligence had caused her death. The family also sued Genentech, contending that the company was vicariously liable for Ong’s conduct.

Genentech moved for summary judgment dismissing the family’s claim against it. An Alameda Superior Court judge granted the company’s motion.

Analysis: The Court of Appeal for the 1st District of California explained that an employer generally will be held vicariously liable for the tortious conduct of its employees within the scope of their employment.

But, the court said, California case law has recognized that an employee commuting to or from work is typically outside the scope of employment, and the employer is not liable for the employee's torts while traveling. This is known as the “going and coming rule.”

The court added that “special errand rule” is an exception to the going and coming rule, and it 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.

“Many court decisions on the going and coming and special errand rules include some discussion of workers' compensation law,” although workers’ compensation decisions construe the scope of employer liability more broadly than do tort cases, the court noted. The court acknowledged that workers’ compensation decisions “can be helpful in determining whether an employer should be vicariously liable,” even though they are not controlling precedent.

The court rejected the idea that Ong was on a special errand for Genentech on the night of the accident, as there was “no evidence that anyone from Genentech requested that Ong drive to Genentech in the dead of night.”

Even in workers' compensation cases, which embrace a more lenient standard for determining when an employee is on a special errand, an employee's decision to take work home or to drive to work at an unusual time does not bring the trip within the scope of employment, the court said.

While the evidence indicated that Ong had hiring responsibilities for the company, the court said that didn’t mean he “had the authority to order himself to perform a special errand for Genentech.”

If the court were to accept such a proposition, that would “expand the special errand rule to allow employees at various levels to request special errands of themselves on behalf of their employers, thereby stripping the employer of the ability to control when it will be liable for an employee's off-shift activities.”

The court went on to find that any credibility issues stemming from Ong's inconsistent testimony about why he was traveling to Genentech were not material to the resolution of the special errand issue. Even if it accepted the family’s assertion that Ong was driving to Genentech to pick up resumes for upcoming interviews, the court said, it could not conclude Ong was acting within the course of his employment at the time of his accident.

The court also said it saw no error in the trial judge’s evidentiary rulings.

Disposition: Affirmed.

To read the decision, click here.

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