California Civil Jury Instructions (CACI) (2017)

3725. Vehicle-Use Exception

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3725.Going-and-Coming Rule—Vehicle-Use Exception
In general, an employee is not acting within the scope of employment
while traveling to and from the workplace. But if an employer requires
an employee to drive to and from the workplace so that the vehicle is
available for the employer’s business, then the drive to and from work
is within the scope of employment. The employer’s requirement may be
either express or implied.
The drive to and from work may also be within the scope of
employment if the use of the employee’s vehicle provides some direct or
incidental benefit to the employer. There may be a benefit to the
employer if (1) the employee has agreed to make the vehicle available as
an accommodation to the employer, and (2) the employer has reasonably
come to rely on the vehicle’s use and expects the employee to make it
available regularly. The employee’s agreement may be either express or
implied.
New September 2003; Revised June 2014
Directions for Use
This instruction sets forth the required-vehicle exception to the going-and-coming
rule. It may be given with CACI No. 3720, Scope of Employment.
Under the going-and-coming rule, commute time is not within the scope of
employment. However, commute time is within the scope of employment if the use
of a personally owned vehicle is either an express or implied condition of
employment, or if the employee has agreed, expressly or implicitly, to make the
vehicle available as an accommodation to the employer and the employer has
reasonably come to rely on its use and to expect the employee to make the vehicle
available on a regular basis while still not requiring it as a condition of
employment. (See Lobo v. Tamco (2010) 182 Cal.App.4th 297, 301 [105
Cal.Rptr.3d 718].) Whether there is such a requirement or agreement can be a
question of fact for the jury. (See Ducey v. Argo Sales Co. (1979) 25 Cal.3d 707,
723 [159 Cal. Rptr. 835, 602 P.2d 755].)
Under this exception, the commute itself is considered the employer’s business.
However, scope of employment may end if the employee substantially deviates
from the commute route for personal reasons. (See Moradi v. Marsh USA, Inc.
(2013) 219 Cal.App.4th 886, 899, 907–908 [162 Cal.Rptr.3d 280].) If substantial
deviation is alleged, give CACI No. 3723, Substantial Deviation.
Sources and Authority
• “ ‘An offshoot of the doctrine of respondeat superior is the so-called “going and
coming rule.” Under this rule, an employee is not regarded as acting within the
scope of employment while going to or coming from the workplace. . . . This
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is based on the concept that the employment relationship is suspended from the
time the employee leaves work until he or she returns, since the employee is
not ordinarily rendering services to the employer while traveling. . . .’ ”
(Jeewarat v. Warner Brothers Entertainment, Inc. (2009) 177 Cal.App.4th 427,
435 [98 Cal.Rptr.3d 837].)
• “ ‘A well-known exception to the going-and-coming rule arises where the use of
the car gives some incidental benefit to the employer. Thus, the key inquiry is
whether there is an incidental benefit derived by the employer. [Citation.]’ This
exception to the going and coming rule . . . has been referred to as the
‘required-vehicle’ exception. The exception can apply if the use of a personally
owned vehicle is either an express or implied condition of employment, or if
the employee has agreed, expressly or implicitly, to make the vehicle available
as an accommodation to the employer and the employer has ‘reasonably come
to rely upon its use and [to] expect the employee to make the vehicle available
on a regular basis while still not requiring it as a condition of employment.’ ”
(Lobo, supra, 182 Cal.App.4th at p. 297, original italics, internal citations
omitted.)
• “If an employer requires an employee to furnish a vehicle as an express or
implied condition of employment, the employee will be in the scope of his
employment while commuting to and from the place of his employment.” (Felix
v. Asai (1987) 192 Cal.App.3d 926, 932 [237 Cal.Rptr. 718], internal citations
omitted.)
• “ ‘To be sure, ordinary commuting is beyond the scope of employment . . . .
Driving a required vehicle, however, is a horse of another color because it
satisfies the control and benefit elements of respondeat superior. An employee
who is required to use his or her own vehicle provides an “essential
instrumentality” for the performance of the employer’s work. . . . When a
vehicle must be provided by an employee, the employer benefits by not having
to have available an office car and yet possessing a means by which off-site
visits can be performed by its employees.’ ” (Moradi, supra, 219 Cal.App.4th at
p. 899.)
• “When an employer requires an employee to use a personal vehicle, it exercises
meaningful control over the method of the commute by compelling the
employee to foreswear the use of carpooling, walking, public transportation, or
just being dropped off at work.” (Moradi, supra, 219 Cal.App.4th at p. 899.)
• “The cases invoking the required-vehicle exception all involve employees
whose jobs entail the regular use of a vehicle to accomplish the job in contrast
to employees who use a vehicle to commute to a definite place of business.”
(Tryer v. Ojai Valley School Dist. (1992) 9 Cal.App.4th 1476, 1481 [12
Cal.Rptr.2d 114].)
• “Where the incidental benefit exception applies, the employee’s commute
directly between work and home is considered to be within the scope of
employment for respondeat superior purposes. Minor deviations from a direct
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commute are also included, but there is no respondeat superior liability if the
employee substantially departs from the employer’s business or is engaged in a
purely personal activity at the time of the tortious injury.” (Halliburton Energy
Services, Inc. v. Department of Transportation (2013) 220 Cal.App.4th 87, 97
[162 Cal.Rptr.3d 752].)
• “Here, the required vehicle exception to the going and coming rule, not the
special errand exception, governs our analysis. Accordingly, we have not
applied the six factors used in special errand cases to determine whether
[employee] was acting within the scope of her employment at the time of the
accident. [¶] Rather, we have applied the relevant principles under the required
vehicle exception. Those principles differ from the six factors used to determine
whether the special errand exception applies. In the present case, [employer]
required [employee] to use her personal vehicle to travel to and from the office
and other destinations. She also had to use her personal vehicle before, during,
and after regular work hours to develop new business. We have properly
examined whether [employee]’s use of her personal vehicle conferred an
incidental benefit on [employer]—it did; whether her planned stops at the frozen
yogurt shop and the yoga studio were an unforeseeable, substantial departure
from her commute—they were not; whether they were a foreseeable, minor
deviation from her regular commute—they were; whether they were not so
unusual or startling that it would be unfair to include the resulting loss among
the other costs of the employer’s business—they were not; and whether they
were necessary for [employee]’s comfort, convenience, health, and
welfare—they were.” (Moradi, supra, 219 Cal.App.4th at pp. 907–908.)
• “[T]he employee’s trip was outside the scope of his employment despite the
payment of the travel allowance.” (Caldwell v. A.R.B., Inc. (1986) 176
Cal.App.3d 1028, 1041 [222 Cal.Rptr. 494].)
• “[A]lthough the employment relationship is ordinarily suspended when the
employee is going or coming, ‘the employer may agree, either expressly or
impliedly, that the relationship shall continue during the period of “going and
coming,” . . . . Such an agreement may be inferred from the fact that the
employer furnishes transportation to and from work as an incident to the
employment. [Citations.] It seems equally clear that such an agreement may
also be inferred from the fact that the employer compensates the employee for
the time consumed in traveling to and from work.’ ” (Hinman v. Westinghouse
Electric Co. (1970) 2 Cal.3d 956, 962 [88 Cal.Rptr. 188, 471 P.2d 988].)
• “One exception to the going and coming rule has been recognized when the
commute involves ‘ “an incidental benefit to the employer, not common to
commute trips by ordinary members of the work force.” [Citation.]’ When the
employer incidentally benefits from the employee’s commute, that commute
may become part of the employee’s workday for the purposes of respondeat
superior liability. [¶] The incidental benefit exception has been applied when the
employer furnishes, or requires the employee to furnish, a vehicle for
transportation on the job, and the negligence occurs while the employee is
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traveling to or from work in that vehicle.” (Halliburton Energy Services, Inc.,
supra, 220 Cal.App.4th at p. 96, internal citation omitted.)
• “Public policy would be ill-served by a rule establishing 24-hour employer
liability for on-call employees, regardless of the nature of the employee’s
activities at the time of an accident.” (Le Elder v. Rice (1994) 21 Cal.App.4th
1604, 1610 [26 Cal.Rptr.2d 749].)
• “[T]he trier of fact remains free to determine in a particular case that the
employee’s use of his or her vehicle was too infrequent to confer a sufficient
benefit to the employer so as to make it reasonable to require the employer to
bear the cost of the employee’s negligence in operating the vehicle. This is
particularly true in the absence of an express requirement that the employee
make his or her vehicle available for the employer’s benefit or evidence that the
employer actually relied on the availability of the employee’s car to further the
employer’s purposes.” (Lobo v. Tamco (2014) 230 Cal.App.4th 438, 447 [178
Cal.Rptr.3d 515].)
Secondary Sources
3 Witkin, Summary of California Law (10th ed. 2005) Agency and Employment,
§184
Haning, et al., California Practice Guide: Personal Injury, Ch. 2(II)-A, Part II
Theories Of Recovery—Vicarious Liability, ¶ 2:803 (The Rutter Group)
2 Levy et al., California Torts, Ch. 20, Motor Vehicles, § 20.42[3][d] (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. 100A, Employer and Employee:
Respondeat Superior, § 100A.26 et seq. (Matthew Bender)
1 California Civil Practice: Torts § 3:10 (Thomson Reuters)
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