Typically, an employer is not liable for its employee's actions during their typical trip to and from work. But be careful with this commonly held "rule," as there can be exceptions.
Recent Case: Bussard v. Minimed Inc.
On
March 22, 2000, Minimed hired a pest control company to spray pesticide
overnight to eliminate fleas at respondent's facility. Around 7:00 a.m. the
next day, Minimed clerical employee Irma Hernandez arrived for work. She
noticed a funny smell similar to "Raid." By 10 o'clock, she felt ill,
with a headache, nausea, and tightness in her chest. At noon, she told two
supervisors she did not feel well enough to continue working and wanted to go
home. One supervisor offered to send her to the company doctor, but Hernandez
declined the offer, while another supervisor asked whether she felt well enough
to drive home, and she said yes. (Eventually, nine workers went home early
feeling ill and 22 employees sought medical care either that day or later for
their exposure to the pesticide.)
Hernandez
drove home shortly after noon. While in route, she rear ended appellant Barbara
Bussard, who was stopped at a red light. Hernandez told the police officer who
responded to the accident scene that she had felt dizzy and lightheaded before
the accident.
Bussard
sued Hernandez and Minimed alleging a single cause of action for negligence for
her personal injuries and property damage. She claimed Minimed was vicariously
liable as Hernandez's employer under the doctrine of respondeat superior
because Hernandez was acting within the course and scope of her employment when
she was driving home ill from pesticide exposure.
Minimed
moved for summary judgment. It argued the "going-and-coming" rule
meant Hernandez was not within the course and scope of her employment during
her commute home. Accordingly, it should not be held vicariously liable under
respondeat superior.
The
court agreed. It noted the pesticide had not incapacitated Hernandez to the
point of rendering her irrational. Thus, her exposure to it did not justify
disregarding the going-and-coming rule to make respondent vicariously liable
for her as she drove home sick. This appeal followed.
Upon
appeal, this summary judgment was reversed and the case permitted to go to
trial.
The
court, after appeal, then ruled that despite the traditional “going-and-coming” rule shielding
employer liability for an employee’s actions during his or her commute, where
an employee’s job contributes to an accident, and such accident is foreseeable
as a result of the circumstances, any resulting losses can be fairly
attributable to employer’s business.
When an employee endangers others with a risk
arising from or related to work (“in the context of the particular enterprise an
employee’s conduct is not so unusual or startling that it would seem unfair to
include the loss resulting from it among other costs of the employer’s
business”).
Consequently, Hernandez
was essentially an “instrumentality of danger” after suffering pesticide
exposure at work, and the fact that she may not be fit to drive was a
foreseeable consequence of the use of the pesticide. Defendant is vicariously
liable here, regardless of whether Defendant bore any responsibility for
Hernandez’s exposure and subsequent negligent driving, and the fact that
Defendant asked Hernandez whether she was fit to drive does not shield it from
liability. Just like in cases where an employer is liable for actions of a
drunken employee, regardless of whether the employer is responsible for the
employee’s drinking
Take Away
Pay attention to any illness or injury complaints that could be related to work. Be proactive. Provide transportation to medical care or home. Do the same in other cases where driving might be impaired: after a particularly long late-night day due to overtime, or where alcohol has been served. Keep this ruling in mind when an employee has failed a drug screen. Going the extra mile and calling a cap or emergency contact could save you down the road.
