What is the Going and Coming Rule in California?

In the recent Second Appellate District decision in Chang v. Southern California Permanente Medical Group, Plaintiff Kai-Lin Chang appealed from a grant of summary judgment in favor of defendant and respondent Southern California Permanente Medical Group (SCPMG).

Chang sued SCPMG over a vehicular accident allegedly caused by SCPMG employee Brittany A. Doremus while she was driving to work in the morning.

The trial court ruled SCPMG was entitled to summary judgment under the “going and coming rule,” which exempts employers from liability for employee torts committed while commuting to and from work.

On appeal, Chang contended the trial court erred in granting summary judgment because SCPMG failed to offer admissible evidence negating the possibility Doremus was talking or texting with coworkers on her employer-issued cell phone at the time of the accident.

Alternatively, Chang argued the going and coming rule should not apply because SCPMG allowed Doremus to work from home as well as at her office, and thus she was not commuting but traveling between job sites.

It was not SCPMG’s burden to negate all possibility Doremus was working at the time of the accident. It was sufficient that SCPMG made a prima facie showing Doremus was not working, a burden SCPMG met through Doremus’s deposition testimony.

The burden then shifted to Chang to provide contradictory evidence demonstrating a triable issue.

Chang did not meet this burden.

The appellate court disagreed that Doremus sometimes working from home converted her home to a second worksite for all purposes. Her uncontradicted testimony established that on Mondays, the day of the week the accident occurred, she did not work from home but at her office.

Thus, at the time of the accident, she was engaged in an ordinary morning commute, not transitioning between worksites.

Chang filed a complaint for negligence against Doremus and SCPMG that alleged that on Monday, September 12, 2022, at approximately 8:40 a.m., Chang was riding his bicycle on Victory Boulevard in West Hills.

As Chang turned onto Valley Circle, Doremus suddenly made a left turn in her vehicle, crossing directly into Chang’s path. Chang collided with Doremus’s vehicle, suffering injuries requiring hospitalization.

The complaint alleged Doremus was operating her vehicle in the course of her employment at the time of the accident, and therefore SCPMG was liable under the principle of respondeat superior.

SCPMG moved for summary judgment, contending Doremus was commuting to work at the time of the accident, and therefore, under the “going and coming rule,” was not acting within the course and scope of her employment.

SCPMG argued it therefore was not liable for Doremus’s alleged tort.

In support, SCPMG offered excerpts from Doremus’s deposition transcript. Doremus testified she was a palliative care doctor employed by SCPMG at the Woodland Hills Medical Center of Southern California. On Mondays and Tuesdays she worked in her office at the medical center. SCPMG permitted her to work from home half of the day on Wednesdays. Thursdays and Fridays she worked with patients at the medical center’s hospital.

When she was on call on nights or weekends, she would work from home.

Doremus testified that on the day of the accident, she left home around 8:30 a.m. to drive to her office at the medical center.

At the moment of the accident, she was turning into a shopping center’s parking lot to drop off her children’s Halloween costumes at a dry cleaner. This was a personal errand unrelated to her work.

Following the accident, she called 911, then sent a group text message to the nurse and social worker she worked with telling them she had been in an accident and requesting that they cancel her appointments for the day.

Doremus did not recall participating in any telephone calls the morning of September 12 before the accident. She testified she was not doing anything work-related at the time of the accident. 

The vehicle she was driving was a personal vehicle unrelated to her employment, and SCPMG never directed her to use the vehicle as opposed to another mode of transportation.

In further support of its summary judgment motion, SCPMG provided a text message log from Doremus’s wireless carrier covering activity between 8:30 and 9:30 a.m. on the day of the accident. The log indicated no text messages between 8:30 and 8:44 a.m. Between 8:44:17 and 8:44:55, Doremus sent or received 11 text messages, although the timestamps suggest that number might double-count single messages sent to multiple recipients.

Between 8:45:01 and 9:21:52 she sent or received another 30 text messages, some of which again might be double- counts of group texts. SCPMG provided a screenshot of a text chain of eight messages beginning at 8:44 in which Doremus informed her coworkers she was in an accident and would not be coming in. 

SCPMG also provided a call log for Doremus’s cellular phone. The log lists a call to 911 at 7:39:42 AM on September 12, 2022, followed by an incoming call from her husband at 8:44:14 and a series of calls from Doremus to her husband from 9:10:30 to 9:32:30.

Doremus testified after her husband called her, she had to call him back several times because the cellular reception was poor.

Chang opposed the summary judgment motion, arguing there was evidence Doremus was texting with coworkers “mere seconds before the collision,” and thus there was a triable issue whether Doremus was acting within the scope of her employment at the time of the accident.

Chang offered what he identified as a “template” of Doremus’s work schedule, which listed on several mornings at 8:30 a.m. a “Team Patient Conference,” including the morning of September 12.

In a footnote, Chang distinguished the “template” of Doremus’s schedule from Doremus’s “actual work schedule”; the latter would include patient names and summaries of their conditions.

Chang complained that SCPMG had never produced the “actual schedule” despite Chang’s discovery requests. Chang nonetheless contended the template created a triable issue whether Doremus was participating in a “Team Patient Conference” at the time of the accident.

Chang also pointed to the text message log indicating the “flurry” of texts between Doremus and her coworkers at 8:44 a.m., which Chang argued raised questions about whether Doremus was texting with coworkers before the accident.

In further support, Chang contended the evidence indicated Doremus could perform her work remotely. Chang interpreted Doremus’s employment agreement, which Chang provided as an exhibit, to not limit her to particular work hours, and to “financially incentivize[ ] her . . . to work more than the ‘full-time schedule.’ ”

The agreement also did not restrict where Doremus could work, and Doremus testified she performed work both at her office and at home. Chang offered evidence SCPMG provided its physicians with cellular phones, on which special SCPMG communication software was installed.

Chang argued some of the case law offered by SCPMG regarding the going and coming rule was inapposite because the cases concerned workers’ compensation, “and thus has no applicability in tort cases.”

Noting case law requiring evidence such as phone records to establish a defendant motorist was engaged in work at the time of an accident, Chang argued Doremus’s text log satisfied this requirement because it showed Doremus and her coworkers were sending each other text messages around the time of the accident.

Chang additionally argued the going and coming rule did not apply because SCPMG “derived an incidental benefit from Dr. Doremus’ use of her personal vehicle because it allowed her to commute seamlessly from her two primary locations where she conducted work — her home office, and her office at Kaiser Woodland Hills.”

Chang contended Doremus could do her job anywhere, but SCPMG required her to “take on the risk of traveling” by commuting to work.

Chang also contended SCPMG’s evidence was inadmissible because the attorney declaration to which SCPMG’s evidence was attached failed to authenticate the evidence properly.

Chang filed evidentiary objections to all of SCPMG’s evidence as hearsay and as lacking foundation, authentication, and personal knowledge.

The evidence to which Chang objected included Chang’s complaint, Doremus’s deposition transcript excerpts, the screenshot of Doremus’s text chain with her coworkers, Doremus’s telephone call and text logs, Doremus’s employment contract, and SCPMG’s benefits handbook.

Following a hearing, the trial court granted the motion for summary judgment. The court found, “There is no dispute in this case that Doremus was commuting to work. In fact, when the accident occurred, she was turning into a dry cleaner’s parking lot to take care of a personal errand unrelated to work. [Citation.] It is clear that the going and coming rule would apply in this case, and Doremus was not acting in the scope of her employment.”

The court further found no exception to the going and coming rule applied. Doremus was not driving a vehicle provided or required by SCPMG, nor did the vehicle provide an incidental benefit to SCPMG. Doremus was not running a special errand for her employer, but running a personal errand during her commute to work.

The court found the evidence did not support Chang’s contention Doremus was engaged in work at the time of the collision. The court noted the call and text logs did not reveal the content of the communications, only that they occurred, and the screenshot SCPMG provided indicated Doremus sent the text messages after the accident to inform her coworkers she would not be in that day.

The court overruled Chang’s evidentiary objections, noting Chang himself relied on the call and text logs in making his arguments, and thus “agreed to the accuracy of those documents.”

The court entered judgment in SCPMG’s favor. Chang timely appealed.

Under the doctrine of respondeat superior, an employer is liable for the torts of its employees committed within the scope of their employment.

An employee is generally not considered to be acting within the scope of [her] employment when going to or coming from her regular place of work. Under this rule— known as the going and coming rule — employers are generally exempt from liability for tortious acts committed by employees while on their way to and from work because employees are said to be outside of the course and scope of employment during their daily commute.

The theory behind the going and coming rule is that the employment relationship is suspended from the time the employee leaves work until she returns or, put another way, that in commuting, the employee is not rendering service to the employer.

Normally the going and coming rule applies in cases where an employee ordinarily works at a particular location and the job duties do not ordinarily include driving on the job.

Courts have recognized exceptions to the going and coming rule where the trip involves an incidental benefit to the employer, not common to commute trips by ordinary members of the work force. 

For example, the rule does not apply if use of a personally owned vehicle is either an express or implied condition of employment, or the employee makes the vehicle available as an accommodation to the employer and the employer has reasonably come to rely upon its use.

It does not apply if the employee is engaged in a special errand or a special mission for the employer.

To the extent an employee combines personal business with work duties while driving, or attends to both at substantially the same time, no inquiry will be made as to which business he was actually engaged in at the time of injury, unless it clearly appears that neither directly or indirectly could he have been serving his employer.

Chang raised two claims of error. First, he argued SCPMG did not make a sufficient prima facie showing below of the nonexistence of a triable issue of material fact, and therefore the trial court should have denied summary judgment rather than shifting the burden of production to Chang.

Second, he argued the going and coming rule should not apply in this case because Doremus was not a typical commuter traveling each day from home to office, but rather was a “hybrid” worker who performed her work outside normal business hours at different locations including her home.

Instructive is Miller v. American Greetings Corp. which similarly concerned whether a driver was acting in the scope of his employment when he struck someone with his vehicle.

In Miller, the tortfeasor driver, as part of his job for the defendant employer, visited stores throughout Los Angeles County to inspect the installation of greeting card stands, and spent much of his time talking on his cell phone coordinating installation projects.

The driver testified at deposition, however, that on the morning of the accident he had taken the day off and was on a personal errand.

The Court of Appeal affirmed a grant of summary judgment in favor of the employer because the

plaintiffs had no evidence to contradict the driver’s testimony. 

Although the plaintiffs proffered a cell phone record indicating the driver had spoken by phone with a coworker for one minute at 9:26 a.m., the evidence indicated the accident took place at 9:35 a.m.

Also instructive is Ayon v. Esquire Deposition Solutions, LLL, in which an auto accident plaintiff sued the tortfeasor’s employer. The plaintiff’s only theory of respondeat superior liability was that the tortfeasor and a coworker were discussing a scheduling issue for work on the phone at the time of the accident.

In moving for summary judgment, the employer offered testimony from the tortfeasor and the coworker in which they denied they were discussing work.

The testimony also established the tortfeasor only rarely made work calls outside of working hours and was social friends with the coworker.

The Court of Appeal stated the issue, therefore, is whether plaintiff presented substantial evidence to dispute their testimony.

The court held the plaintiff’s contention that the tortfeasor had an incentive to lie to please her employer, without more, was insufficient to create a triable issue of material fact on respondeat superior liability.

The court thus affirmed the grant of summary judgment.

In Miller and Ayon, the defendant employer did not have to negate all possibility the driver was acting in the scope of employment to shift the burden of production to the plaintiffs. It was sufficient the drivers provided testimony that established they were not acting in the scope of employment. The burden then shifted to the plaintiffs to dispute the testimony, which they failed to do.

The question was whether SCPMG made a prima facie showing that Doremus was not acting in the scope of her employment at the time of the accident, and if so, whether plaintiff offered contrary evidence demonstrating triable issues.

SCPMG met its initial burden. 

Contrary to his position below, on appeal Chang concedes the excerpts from Doremus’s deposition were admissible.

As in Miller and Ayon, those excerpts alone satisfied SCPMG’s prima facie showing. Doremus testified she was driving from her home to her office at the time of the accident, and apart from the commute was not doing anything work-related. She did not recall participating in any

telephone calls prior to the accident. She was driving a personal vehicle unrelated to her employment. This evidence, if credited by a finder of fact at trial, would establish Doremus was engaged in an ordinary morning commute, and therefore the going and coming rule applies.

Thus, SCPMG met its initial burden, even if arguendo SCPMG’s other evidence was inadmissible as Chang contends.

The documentary evidence does not contradict Doremus’s testimony that when the accident occurred, she was not communicating with coworkers or otherwise working.

Chang argues the evidence does not necessarily show Doremus was not working at the time of the accident.

It was not SCPMG’s burden to eliminate all possibility Doremus was not working at the time of the accident.

Rather, it was Chang’s burden to offer admissible evidence contradicting Doremus’s testimony that she was not working, and he failed to do so.

LESSONS:

1.         Under the doctrine of respondeat superior, an employer is liable for the torts of its employees committed within the scope of their employment.

2.         An employee is generally not considered to be acting within the scope of [her] employment when going to or coming from her regular place of work. Under this rule— known as the going and coming rule — employers are generally exempt from liability for tortious acts committed by employees while on their way to and from work because employees are said to be outside of the course and scope of employment during their daily commute. 

3.         The theory behind the going and coming rule is that the employment relationship is suspended from the time the employee leaves work until she returns or, put another way, that in commuting, the employee is not rendering service to the employer.

4.         Normally the going and coming rule applies in cases where an employee ordinarily works at a particular location and the job duties do not ordinarily include driving on the job.

5.         Courts have recognized exceptions to the going and coming rule where the trip involves an incidental benefit to the employer, not common to commute trips by ordinary members of the work force.