As I am sure you are aware, the legal rule of vicarious liability can make an employer liable for an act of its employee performed doing the course of his work. An exception to this rule is the "going and coming to work" rule. Unless the act of driving is a part of your employees duties, an employer is not liable for an act by its employee while he is either going or coming to work.

Recently, a Plaintiff unsuccessfully tried to expand the vicarious liability of an employer by exempting from the "coming or going " rule, an employee who is required to commute long distances in order to get to work.

In Lynn v. Tatitlek Support, Plaintiffs and appellants Gail M. Lynn (Mrs. Lynn), individually and as executor of the Estate of Brian Griffin Lynn (Mr. Lynn), and Randy Lynn, Mr. and Mrs. Lynn’s son, (plaintiffs) appealed from summary judgment entered in favor of defendant and respondent employer Tatitlek Support Services, Inc. (TSSI) in a wrongful death action. 

 The sole question raised on appeal is whether TSSI’s temporary employee, Abdul Formoli, was acting within the scope of his employment when he caused an automobile accident (the accident), killing Mr. Lynn and seriously injuring Mrs. Lynn. Plaintiffs contend the “going and coming” rule, precluding employer vicarious liability, does not apply because of the nature of Formoli’s employment preceding the accident. Because of the remoteness of the jobsite, Formoli’s employment required him to undertake a lengthy commute home, after working long hours, over three and a half days. Plaintiffs argue that under such circumstances there is a triable issue of material fact as to whether an exception to the “going and coming” rule applies. Plaintiffs rely on three exceptions: the extraordinary-commute incidental benefit exception, the compensated travel-time exception, and the special risk exception.

 The Court concluded that the plaintiffs failed to present evidence supporting these exceptions to the going and coming rule. The Court therefore affirmed the judgment on the ground that it is undisputed TSSI was not vicariously liable for the accident under the doctrine of respondeat superior.

This is an important decision supporting a construction employer's lack of liability for an employee who in the construction industry often have to commute long distances after working long hours. Although under certain circumstances an employer may be found vicariously liable for the act of its employee who has to commute to a jobsite, for now the Court's trend is to continue to not hold employers responsible for the acts of their employees who are either coming to or going from work.