Lynn v. Tatitlek Support, 2/22/17, 4DCA/2
Generally, an employer is not vicariously liable for accidents its employee causes during the commute to and from work. There are exceptions, including when the commute itself provides an incidental benefit to the employer; where travel time is being paid for; or when the nature of the work makes the employee an “instrumentality of danger” during his/her commute. Here, a temporary worker struck an oncoming car on his way home, killing himself and one of the occupants in the other car. The employee had been drinking before the accident. He admittedly came from a great distance, but the company had not recruited from his geographic area; he was free to use his personal car or take a company bus to the job site; he was not paid for his travel time; and, while he remained at the job site during the temporary assignment and the work was grueling, there was no evidence that the grueling nature of the work was a contributing factor to the accident, e.g., no evidence was presented that the employee hadn’t gotten enough sleep the night before he left for home. In accident victims’ lawsuit alleging that driver’s employer was vicariously liable for their injuries, the trial court granted employer’s motion for summary judgment. Held: Affirmed.
Defendant Tatitlek (TSSI) provides realistic pre-deployment training at military bases throughout the country. The Marines hire TSSI to provide Afgan speaking role-players for exercises at its base in Twenty Nine Palms. TSSI recruits employees from San Diego, Freemont and Phoenix. At their discretion, role players can be bused from off-site facilities (80% choose this option) or drive directly to the base. Some role players learn about these jobs by word of mouth and come from perhaps 100 to 600 miles away, and meet at off site facilities in Phoenix, San Diego or Freemont.
Role players remain at the base during the exercises and work 8-19 hours each day. The exercises are strenuous and stressful, although employees were required to get at least 5 hours of sleep per night. At the end of the exercises, they checked in at the on-base facility, were then transported to a facility off the base, and from there were free to take TSSI buses or their own personal transportation. No one was paid for travel time to the base, and no one did work during travel time. One role player employee, Formoli, lived in Sacramento and chose to drive his own car to and from the base, rather than riding in a company bus.
After his temporary job ended, Formoli started driving home. Two hours after he left the base, he veered into oncoming traffic and hit another car. He died and people in the other car were either killed or seriously injured. At the time of the accident, his blood alcohol level was .06.
The victims in the other car sued the driver and TSSI.
TSSI moved for summary judgment citing undisputed evidence that before the accident had been discharged as an employee, was not engaged in activity for TSSI, including incidental activity, that he was no longer at work on the jobsite (the base), and was not being compensated for travel time.
In opposition, Plaintiffs argued various exceptions to the going and coming rule, claiming that that TSSI gained an incidental benefit from Formoli’s commute; that Formoli was being paid for travel time, and that the special risk exception to the going and coming rule applied because the work was grueling and role players got little sleep. Later, Plaintiff also argued that because TSSI solicited workers from distant labor markets it should have to pay for the risks inherent in commuting long distances.
As the defendant, it was TSSI’s initial burden to show one of the elements of plaintiff’s cause of action could not be met. Defendant did this by establishing the going and coming rule. The burden shifted to plaintiffs to provide evidence of an exception to that rule.
Vicarious liability for employee conduct in the course and scope of the employment stems from a policy decision to include the costs of accidents into the costs of production that society bears through the price of a product and insurance rates, rather than the innocent third party. Commute time is generally outside the scope of work because employees are not providing a benefit or service to the employer and business. The employment relationship is viewed as suspended during off hours.
If the commute is made part of the work day or the employer derives a benefit from the commute. Examples include when the employee is required to commute in his personal vehicle or engaged to run a special errand for the employer. One court explained that, when an employer chooses to further its business interest by enlarging the geographical pool from which to draw its labor force by paying its employees for their commute, and this business benefit also creates a concomitant increased risk of accidents by hiring employees with lengthy commutes, the lengthy employee commutes benefit the employer. However, in that case, the employer paid for travel expenses and travel time, and the employee’s job required him to commute to job sites (elevator repair) rather than to and from employer’s office.
Here, there was no incidental benefit to the employer. The employee didn’t have to commute to the jobsite, he wasn’t required to use his car and he wasn’t paid for his commute; TSSI didn’t recruit employees from the geographic area from which Formoli came; Formoli had the option to use a busing service to get to the base; and more generally had the option of when, where and how to commute to the jobsite. The means of travel to work was a matter of “complete indifference” to the employer. In addition, had had completed his temporary assignment, and at the time of the accident he was about 100 miles from the job site. Thus, any benefit to TSSI was too attenuated to require TSSI to bear the risk of an accident. The court also noted that a long commute by itself is not enough to overcome the general rule.
Another exception to the general rule is where the employer compensates the employee for travel time. That didn’t apply here and Plaintiff’s claim to the contrary was based on pure speculation and not evidence.
Finally, the special risk exception did not apply either. The special risk exception applies when an employee endangers others with a risk arising from or related to work. “One way to determine whether a risk is inherent in, or created by, an enterprise is to ask whether the actual occurrence was a generally foreseeable consequence of the activity. The special risk exception “is properly applied where an employee undertakes activities within his or her scope of employment that cause the employee to become an instrumentality of danger to others even where the danger may manifest itself at times and locations remote from the ordinary workplace.” While plaintiff did work a grueling schedule before he left the site, plaintiffs presented no evidence of when the role player last slept before his commute. Therefore, there was no evidence that he veered into oncoming traffic because of anything that happened while he was working at the base. In addition, he had a heightened blood-alcohol level.
Developments for the California Litigator