Opinion sets proper boundaries for vicarious liability

In Newland v. County of Los Angeles, 2018 DJDAR 5855 (June 18, 2018), the 2nd District Court of Appeal reversed an approximate $14 million judgment, concluding that the county was not vicariously liable for its employee's car accident during his drive home from work. The court concluded that an employer is vicariously liable for an employee's car accident during his or her commute if the employer required the employee's car be brought to work on the day of the accident, or obtained a benefit from having the car at work. In reversing the judgment, the appellate court found that the plaintiff presented no evidence demonstrating that the employee's vehicle was required for work on the day of the accident, or that the county obtained a benefit from the vehicle being at work that day.

In Newland, the plaintiff, a pedestrian, was injured in a pedestrian versus automobile accident that involved a Los Angeles County deputy public defender who was driving home from work. During the trial, the court declined to issue jury instructions that would have informed the jury that, for an employer to be liable for an employee's torts, the employee must be within the course and scope of employment at the time the torts were committed. Instead, the jury was only instructed that an employee is acting within the course and scope of employment when the employer requires the employee to bring his or her car to work, or if the employer obtains some benefit from having the employee's car at work. A jury found that the county was liable for the public defender's accident during his drive home, even though he was not required to have his car at work on the day of the accident.

Prior to Newland, there was potential ambiguity on when an employee's car needed to be required to trigger vicarious liability. Generally, when an employee is commuting to and from work, the employee is not acting within the course and scope of employment. This is often referred to as the "going and coming rule." There are a number of exceptions to the going and coming rule, which brings an employee's commute to and from work within the course and scope of employment. One such exception is the required vehicle exception. Under the required vehicle exception, an employee's commute to and from work is considered within the course and scope of employment when the employee is required to bring his or her car to work or, at the time of the accident, the employee's car provided a benefit to the employer.

The Newland opinion further clarifies the relationship between vicarious liability and the required vehicle exception by making clear that, for an employer to be vicariously liable for a car accident during an employee's commute home from work, the employee's vehicle must have been required for work on the day of the accident or the employer must have obtained some benefit from having the car at work that day. Until recently, there were few opinions discussing the importance of the employee's car being required on the day of the accident to trigger vicarious liability. Newland joins other recent opinions such as Jorge v. Culinary Institute of America, 3 Cal. App. 5th 382 (2016), which also held that, for the employer to be liable for an employee's car accident during the employee's commute, the vehicle must have been required for work on the day of the accident.

In Newland, the public defender was not required to have his vehicle at work or use it for work purposes on the day of the accident. On the day of the accident, the public defender simply drove to work and then drove home. While, on occasion, the public defender previously needed to travel for work, he sometimes drove, but also had discretion to take other modes of transportation. Furthermore, the public defender testified that had reasonable public transportation been available, he could have taken that to accomplish work tasks.

The court also noted that holding the county vicariously liable under these facts was inconsistent with the policy, behind vicarious liability. The Newland court noted that the purpose of vicarious liability is to put liability for an employee's torts committed in the course and scope of employment on the employer because it is the employer's business or activities that put the employee in a position to commit the torts. By assigning liability in this fashion, it incentivizes employers to take steps to minimize the risk that its employees' commit torts. However, as the Newland court recognized, holding the county liable here does not further this purpose. In this case it was the employee who chose to drive to work, the county did not require it. Therefore the county could not take any steps to try and minimize the risk of the accident occurring.

The conclusion that the vehicle must be required at the time of the accident puts important time constraints on when an employer is vicariously liable for the actions of its employees during their commutes. Absent a time restriction, an employer can be held liable for the automobile accidents of its employees during their commutes based on driving that may have been required by the employer several years prior to the accident. Without these time restrictions, employers essentially become de facto insurers of the road the second an employee is ever required to drive for work purpose, even if it only happens once. The rule declared in Newland sets proper boundaries on when an employer may be vicariously liable for an employee's commute to or from work.