Employer Liability for After Work Driving

On Behalf of | Mar 1, 2011 | Publications

The Fourth District Court of Appeal in California recently decided the matter of Lobo v. Tamco (2010) 182 Cal.App.4th 297. This case holds that a triable issue of material fact exists regarding whether an employer’s infrequent reliance on an employee to drive his own car to meet with customers was an incidental benefit to the employer. The legal finding of such an incidental benefit may be sufficient to support a claim of vicarious liability against the employer for personal injuries caused while the employee was off the job, driving after work.

The troubling facts of the case are as follows. A San Bernardino County deputy sheriff was one of three motorcycle officers travelling together on Arrow Highway with their lights and sirens activated. Tamco is a manufacturer of steel bars used in construction. A metallurgist employed by Tamco was driving his own car, leaving work for the day. The employee did not see the officers as he exited Tamco’s premises and entered the roadway. In the ensuing crash, Deputy Lobo suffered fatal injuries.

The officer’s widow and daughters filed suit for his wrongful death. Tamco’s attorneys argued in motions for summary adjudication that, under California’s “coming and going” rule, the company had no liability for the accident. This rule provides that employers are generally exempt from liability for tortious acts committed by employees while on their way to and from work. Tamco argued that the metallurgist was off work, driving his own vehicle, and was not on company business at the time of the accident.

In this case, the Court found that because there was evidence that the employee sometimes used his own car for company business, it could not be decided as a matter of law that Tamco could never be vicariously liable for its employee’s negligence. The Court stated, “If the employer requires or reasonably relies upon the employee to make his personal vehicle available to use for the employer’s benefit and the employer derives a benefit from the availability of the vehicle, the fact that the employer only rarely makes use of the employee’s personal vehicle should not, in and of itself, defeat the plaintiff’s case.”

This ruling expands the “required vehicle” exception to the “coming and going rule,” and stretches the concept of an incidental benefit to the employer. In such circumstances, where summary adjudication is not possible, the employer may be forced to choose between settlement or trial of a sympathetic, potentially high exposure case. Lobo v. Tamco illustrates how the facts of a particular case can make new or expanded law. It should be noted that the California Supreme Court has denied review of this case, letting the Court of Appeal’s decision stand.

The attorneys at Kring & Chung are knowledgeable in employment law, personal injury, and general civil litigation matters. We are available to discuss, draft and review with you your employee vehicle policies, as well as address all other important employment and liability issues.


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