By Leonard Brazil

An employee has a desk job so he rarely leaves work in the course and scope of his employment. Over the course of his 15 years with the company, he has used his own car to visit a customer on just a handful of occasions.  One day during his commute home after a full day in the office, the employee runs a red light and, tragically, kills a pedestrian.  The deceased’s representative files a wrongful death suit against the employee and the employer.  The company’s first reaction is the employee was driving home after completing a full day of work and was not driving in the course and scope of his employment so it cannot possibly be liable for the accident.  However, the answer is not so clear-cut.

California law provides that employers are vicariously liable for tortious acts (i.e., negligent driving) committed by their employees during the course and scope of their employment. The general rule is employers are not vicariously liable for tortious acts committed by employees while they commute to and from work as part of their daily commute because it is considered to be outside the course and scope of their employment.  However, there is an exception to the general rule.

If an employer benefits from an employee commuting to or from work in his own vehicle, the commute may become part of that person’s workday rendering the employer liable for the accident occurring on the commute home. The determining factor is whether the employee having his vehicle available during work hours provides an incidental benefit to the employer.  If so, the employer may be liable for the accident.  For example, if an employer approves or requires an employee to make his vehicle available for business use as a condition of employment, doing so provides an incidental benefit to the employer; thus, the employee may be deemed to be in the course and scope of employment during the commute to or from home even if the employee uses the vehicle for work reasons only on an infrequent basis.  The rationale behind the law is to reallocate the inherent risk which arises from an employee’s commute from the innocent injured person to the employer when the vehicle is used for business purposes, whether required by the job or routinely used.

What Should An Employer Do

  1. If you have company vehicles, have your employees drive them exclusively for work related activities to avoid liability for accidents which occur while they commute in their personal vehicles. Also have such employees included under the company’s insurance policy.

2. If employees use their personal vehicle for work-related reasons:

 (a) Check with your insurance broker to be sure you have adequate policy limits.

 (b) Require such employees to provide proof of insurance with adequate policy limits and require them to immediately inform you if there is any change in coverage.

3. Require employees who drive a vehicle for work related reasons to provide proof of a valid driver’s license and immediately inform you if the license is suspended or revoked.

Thank you for joining us on CIarkTalk! We look forward to seeing you again on this forum. Please note that views expressed in the above blog post do not constitute legal advice and are not intended to substitute the need for an attorney to represent your interests relating to the subject matter covered by the blog. If you have any questions about this article, please feel free to contact Leonard Brazil by e-mail at lbrazil@clarktrev.com or Deborah Petito at dpetito@clarktrev.com or telephonically by calling the author at (213) 629-5700.

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