The Dangers of the Daily Commute

California courts have long recognized the “coming and going rule,” which is that employees are outside the scope of their employment during their daily commute. However, a recent case is re-examining the rule. In Lobo v. Tamco, an employee collided with a police officer on the employee’s commute home. The officer died, and the officer’s family brought a wrongful death suit against the employer, arguing that the employee was acting in the course and scope of his employment when the accident occurred. At the trial court level, the employer successfully argued the “coming and going rule.”

However, on appeal the family argued that the employer was liable under the “required vehicle” exception – which is that a personally-owned vehicle is a condition of employment. The family argued that the employee, a Quality Control Manager, was required to visit customer sites, and thus having a vehicle was a condition of his employment.

The appellate court sided with the family, finding that the employee’s commute was within the course and scope of his employment because the employer “relies upon the employee to make his personal vehicle available…for the employer’s benefit and the employer derives a benefit from the…vehicle.” The Court noted that, “the fact that the employer only rarely makes use of the employee’s personal vehicle should not…defeat the plaintiff’s case.”

This case puts employers on notice that if they require employees to use their personal vehicles to perform aspects of their job, an employer may be vicariously liable for conduct occurring outside of work hours. Thus, it may be wise to re-examine positions that require even infrequent use of an employee’s personal vehicle.