California Civil Jury Instructions (CACI)

3725. Vehicle-Use Exception

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.

Sources and Authority

"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.)

"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].)

While workers' compensation cases have recognized an exception to the going-and-coming rule when the employer defrays travel expenses, this exception does not apply to the respondeat superior doctrine. Payment of a travel allowance, in and of itself is insufficient to impose liability on the employer. (Caldwell v. A.R.B., Inc. (1986) 176 Cal.App.3d 1028, 1041 [222 Cal.Rptr. 494].) Respondeat superior does apply where the employer pays wages for travel time. (Hinman v. Westinghouse Electric Co. (1970) 2 Cal.3d 956, 962 [88 Cal.Rptr. 188, 471 P.2d 988].)

The fact that an employee is on call does not automatically put their actions in the scope of employment. (Le Elder v. Rice (1994) 21 Cal.App.4th 1604, 1610 [26 Cal.Rptr.2d 749]).

Secondary Sources

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

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. 100, Employer and Employee (Matthew Bender)

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

(New September 2003)