Woodland Hills personal injury attorney Barry P. Goldberg analyzes serious car accident cases on a daily basis. Often, the issue is not whether the defendant was at fault or whether the plaintiff was seriously injured. Rather, the most important inquiry is whether there are viable sources of recovery to pay for the substantial damages. Many personal injury attorneys are unaware that if the “at fault” driver was running a “Special Errand” for his employer, that employer may be financially responsible for my client’s injuries.
One of the most important inquiries a personal injury attorney makes is whether the “at fault” driver was in the “course and scope” of his employment. The answer to that question is often the end of the inquiry. If the driver was in the course and scope of his employment, then the employer is liable under respondeat superior. It is a little less clear when the driver was “going or coming” from employment. Most of the time the “going and coming” rule eliminates employer liability. But, not always. There are several exceptions.
Was it Work-Related?
The defense and their insurers regularly assert that the accident was “not work related” and occurred on the employee’s own time. However, with a little digging, an exception to the exception can be found called “the special errand.” The California Court of Appeal recently examined whether the special errand rule applied in a wrongful death case where the “at fault” employee was basically “on call” for interviewing new candidates.
What is the doctrine “Respondeat Superior?”
As previoiusly stated, under the doctrine of respondeat superior, an employer is vicariously liable for the tortious conduct of its employees within the scope of their employment. (Jorge v. Culinary Institute of America (2016) 3 Cal.App.5th 382, 396.) “‘[T]he modern justification for vicarious liability is a rule of policy, 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.’ ” (Hinman v. Westinghouse Elec. Co. (1970) 2 Cal.3d 956, 959–960 (Hinman).) The principal justification for the application of the doctrine of respondeat superior is that the employer may spread the risk through insurance and carry the expense as part of its costs of doing business. (Johnston v. Long (1947) 30 Cal.2d 54, 64.)
The scope of employment has been interpreted broadly under the respondeat superior doctrine in California. (Farmers Ins. Group v. County of Santa Clara (1995) 11 Cal.4th 992, 1004.) Acts necessary for the employee’s comfort or convenience at work, or where an employee is tending to his own business at the same time as that of his employer, do not remove the employee from the scope of employment, “ ‘ “unless it clearly appears that neither directly nor indirectly could he have been serving his employer.” ’ ” (Id.) The employer’s liability extends to risks inherent in or incidental to the employer’s enterprise. (Rodgers v. Kemper Constr. Co. (1975) 50 Cal.App.3d 608, 618–619.)
Exceptions to “Respondeat Superior”
Also, as previously stated, there are exceptions to the respondeat superior doctrine. (Hinman, supra, 2 Cal.3d at p. 960.) Under the going and coming rule, for example, 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. (Id. at p. 961.) “The ‘going and coming’ rule is sometimes ascribed to the theory that the employment relationship is ‘suspended’ from the time the employee leaves until he returns [citation], or that in commuting he is not rendering service to his employer [citation].” (Hinman, supra, 2 Cal.3d at p. 961.) With a few exceptions, employees are not within the scope of employment while commuting. (Id.)
The Special Errand Rule
One exception to the going and coming rule is the special errand rule, 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. (Boynton v. McKales (1956) 139 Cal.App.2d 777, 789 (Boynton).) “[T]he employee is considered to be in the scope of his employment from the time he starts on the errand until he has returned or until he deviates therefrom for personal reasons.” (Id.) The employer is liable for the employee’s torts in the course of a special errand because the errand benefits the employer. (Id.) It is not necessary that the employee is directly engaged in his job duties; included also are errands that incidentally or indirectly benefit the employer. (Id.) It is essential, however, that the errand be either part of the employee’s regular duties or undertaken at the specific request of the employer. (Id.)
In important example is provided In Jeewarat v. Warner Bros. Entertainment Inc. (2009) 177 Cal.App.4th 427, 436 (Jeewarat), the court reversed summary judgment for the employer, holding that an employee’s attendance at a business conference authorized and funded by the employer may come within the special errand exception. There, the employee was vice-president of anti-piracy internet operations. (Id. at p. 431.) Brandon was involved in a traffic accident while driving home from the airport after attending an out-of-town business conference sponsored by one of the employer’s anti-piracy vendors. (Id. at pp. 431–432.) The Jeewarat court held the evidence that the employer paid for the employee’s airfare, hotel, and airport parking, coupled with the reasonable inference that the employer would benefit from the information learned at the conference, created triable issues of material fact as to whether the business trip was a special errand. (Id. at pp. 437, 438–439.)
While the special errand exception is littered with cases all distinguishable by the particular facts, it is still a very important inquiry in any serious personal injury case. If you were involved in a serious accident and are concerned that the resources are unavailable to satisfy damages, it is critical to consult with experienced counsel to examine the work-accident connection.
