News & Events:


April 23, 2015

Many employers have difficulty navigating the legal quagmire of employee liability.  Plaintiffs’ counsel look for the deepest pockets available for the biggest payout, and thus business owners face concerns about being held financially liable for their employee’s actions.  At times, the concept of employer liability seems a tricky one.

The rule is that an employer is responsible for an employee’s acts within his or her employment capacity.  This can be true even if the employer is unaware of the employee’s actions at the time.  This can also be true when the employee is also serving his or her own interest coincidental to conduct within the scope of the job.  Thus, for an employer, sometimes the conduct of an employee does not appear to be benefiting the employer and the employer’s responsibility therefore seems questionable.

If an employee is driving in the capacity of his or her job (such as driving to meet a customer or delivering a product) and is involved in an accident, the employer will be legally responsible for the damages.  This is true even if the employee made the decision, as opposed to the employer, to head out into foggy or other conditions beyond the control of the employer. But what if the employee, on the way to make a delivery, stops in the fog to do something else and thereby contributes to the occurrence of a collision?  Who is responsible?
Any time an employee is driving during his or her normal work hours the employer will face potential liability.  There is a significant body of law relating to the determination of liability for an employee who is driving to or from work – a body of law frequently referred to as the “going-and-coming” rule.  Generally, an employee is not within the scope of employment when driving to or from work; however, there is a veritable laundry list of exceptions.  How does an employer anticipate an exception?

In Caldwell v ARB*, a controlling Fifth District case, an employee was driving home from work with a co-worker in the rain and was involved in an accident.  The injured party sued the employer and argued that the employee was acting within the scope of his employment because he was giving a coworker a ride home.  The court held that only the acts of an employee in which an employer derives benefit qualify as a circumstance justifying employer liability.  Driving a fellow employee home was not one of those benefits.

An employer can escape liability if it can prove the employee was not acting within the scope of employment or for the employer’s benefit.  It is very important to limit the amount of activities requiring an employee to drive during bad weather.  If an employee chooses to drive off site for lunch on a foggy day, be sure they are not taking work with them or it could be determined the drive was employment related.

*Caldwell v. ARB, INC., 176 Cal. App. 3d 1028 (Cal. Ct. App. 1986)




Rayma Church
Rayma Church

Practice Area

  • Agribusiness Disputes & Litigation
  • Trucking and Transportation
  • Personal Injury Claims & Litigation