California Civil Jury Instructions (CACI)

3724. Going-and-Coming Rule

In general, an employee is not acting within the scope of employment while traveling to and from the workplace. But if the employee, while commuting, is on an errand for the employer, then the employee's conduct is within the scope of his or her employment from the time the employee starts on the errand until he or she returns from the errand or until he or she completely abandons the errand for personal reasons.

Sources and Authority

"An employee is not considered to be acting within the scope of employment when going to or coming from his or her place of work. This rule, known as the going-and-coming rule, has several exceptions. Generally, an exception to the going-and-coming rule will be found when the employer derives some incidental benefit from the employee's trip." (Anderson v. Pacific Gas & Electric Co. (1993) 14 Cal.App.4th 254, 258 [17 Cal.Rptr.2d 534], internal citations omitted.)

"If the employee is not simply on his way from his home to his normal place of work or returning from said place to his home for his own purpose, but is coming from his home or returning to it on a special errand either as part of his regular duties or at a specific order or request of his employer, the employee is considered to be in the scope of his employment from the time that he starts on the errand until he has returned or until he deviates therefrom for personal reasons." (Boynton v. McKales (1956) 139 Cal.App.2d 777, 789 [294 P.2d 733], internal citations omitted.)

The going-and-coming rule "is based on the theory that the employment relationship is suspended from the time the employee leaves his job until he returns and on the theory that during the normal everyday commute, the employee is not rendering services directly or indirectly to his employer." (Felix v. Asai (1987) 192 Cal.App.3d 926, 931 [237 Cal.Rptr. 718].)

One specific exception to the going-and-coming rule is when the employer compensates the employee for travel time to and from work. (See Hinman v. Westinghouse Electric Co. (1970) 2 Cal.3d 956, 962 [88 Cal.Rptr. 188, 471 P.2d 988].)

Some examples of the special-errand exception include: (1) where an employee goes on a business errand for his employer, leaving from his workplace and returning to his workplace; (2) where an employee is called to work to perform a special task for the employer at an irregular time; and (3) where the employer asks an employee to perform a special errand after the employee leaves work but before going home. (Felix, supra, 192 Cal.App.3d at pp. 931-932.)

The employee is still within the scope of employment after the errand is completed. (Trejo v. Maciel (1966) 239 Cal.App.2d 487, 495 [48 Cal.Rptr. 765].)

Secondary Sources

2 Witkin, Summary of California Law (9th ed. 1987) Agency and Employment, §§ 129-134

2 Levy et al., California Torts, Ch. 20, Motor Vehicles, § 20.42[3] (Matthew Bender)

2 California Employment Law, Ch. 30, Employers' Tort Liability to Third Parties for Conduct of Employees, § 30.05 (Matthew Bender)

21 California Forms of Pleading and Practice, Ch. 248, Employer's Liability for Employee's Torts, § 248.16 (Matthew Bender)

37 California Forms of Pleading and Practice, Ch. 427, Principal and Agent (Matthew Bender)

10 California Points and Authorities, Ch. 100, Employer and Employee (Matthew Bender)

1 Bancroft-Whitney's California Civil Practice (1992) Torts, § 3:10

(New September 2003)