The plaintiffs brought this tort action against the driver/owner of a car, as well as the driver's employer. The car struck a truck in which the decedent was a passenger.
The employer filed a motion for summary judgment in its own behalf. The trial court granted the motion. The plaintiffs appealed, contending that the "going and coming" rule did not preclude the employer from being vicariously liable for the tort of its employee because there was a triable issue of material fact as to whether one of the rule's exceptions applies.
The exception, argued the plaintiffs, was whether the multiple work sites of the employer made the driver's commute itself "part of the work day."
The appellate court, in this unpublished decision, first reiterated the basics of the "going and coming" rule:
"...[O]nce employees complete their work day, they ordinarily are not providing any benefit or service to the business until they begin the next work day, and therefore torts occurring during a commute are no more the vicarious responsibility of the business than torts committed at an employee's home...
"On the other hand, if the business (expressly or impliedly) makes the commute a part of the work day, or derives an incidental benefit from a particular employee's commute beyond that of the other members of the work force, then its vicarious liability will continue during the course of the commute."
The facts of this case involved a decedent who was riding in a truck that his son-in-law was driving. The defendant employer was a licensed framing contractor with multiple job sites in operation at the time. At the time of the accident, the defendant driver was driving to one of these sites.
There were 3 job sites at the time, two in Tracy and one in Walnut Creek. The defendant driver, seeking work as an apprentice, approached the employer at the primary site in Tracy several times. The site was awaiting a delivery of lumber, and the owner would tell the driver to return from day to day to see if the materials had arrived.
On the day he was hired, after he had waited a half hour at the Tracy site, the owner arrived and told the defendant driver there would not be work in Tracy, but he could work at the Walnut Creek site. The driver and his companion then drove to Walnut Creek in their car, at which time the accident occurred.
The Court ruled that this did NOT constitute a sufficient basis for an exception to the "going and coming" rule:
"Viewing the evidence in favor of the plaintiffs, the defendant driver and [his companion, a carpenter] were dispatched to Walnut Creek on their first day of work after arriving at the Tracy site. This is not, however, sufficient to bring the defendant driver within the exceptions to the commute rule.
"The defendant driver and the carpenter did not have any duties at the primary Tracy site on the first day of their employment, and had been merely stopping there from day to day to see if there was a possibility of employment.
"We cannot discern any basis for imposing liability because defendant [employer] directed them to Walnut Creek from the Tracy job site rather than call them at home to tell him that materials had not yet arrived in Tracy. Any benefit to the employer on this single occasion in saving a phone call is too insubstantial to justify liability."
The case is Gonzales v. Valley Rivco.
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