CACI No. 3725. Going-and-Coming Rule - Vehicle-Use Exception

Judicial Council of California Civil Jury Instructions (2020 edition)

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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, May 2017, May 2019, May 2020
Directions for Use
This instruction sets forth the vehicle use exception to the going-and-coming rule,
sometimes called the required-vehicle exception. (See (Jorge v. Culinary Institute of
America (2016) 3 Cal.App.5th 382, 398, fn. 6 [207 Cal.Rptr.3d 586]; see also
Pierson v. Helmerich & Payne International Drilling Co. (2016) 4 Cal.App.5th 608,
624-630 [209 Cal.Rptr.3d 222 [vehicle-use exception encompasses two categories;
required-vehicle and incidental-use, both of which are expressed within CACI No.
3725].) 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.
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One court has stated that the employee must have been using the vehicle to do the
employer’s business or provide a benefit for the employer at the time of the
accident.(Newland v. County of L.A. (2018) 24 Cal.App.5th 676, 693 [234
Cal.App.3d 374], emphasis added.) However, many cases have applied the vehicle
use exception without imposing this time-of-the-accident requirement. (See, e.g.,
Moradi, supra, 219 Cal.App.4th at p. 892 (employee was just going home at the
time of the accident); Lobo, supra, 182 Cal.App.4th at p. 302 (same); Huntsinger v.
Glass Containers Corp. (1972) 22 Cal.App.3d 803, 806-807 [99 Cal.Rptr. 666]
(same); see also Smith v. Workers’ Comp. Appeals Bd. (1968) 69 Cal.2d 814, 815
[73 Cal.Rptr. 253, 447 P.2d 365] (workers’ compensation case: accident happened
on the way to work).) Newland could be read as requiring the employee to need the
vehicle for the employer’s business on the day of the accident, even if the employee
was not engaged in the employer’s business at the time of the accident. (See
Newland, supra, 24 Cal.App.5th at p. 696 [“no evidence that [employee] required a
vehicle for work on the day of the accident, and no evidence that the [employer]
received any direct or incidental benefit from [employee] driving to and from work
that day”].)
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 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].)
• “The ‘required-vehicle’ exception to the going and coming rule and its variants
have been given many labels. In Halliburton, supra, 220 Cal.App.4th 87, we
used the phrase ‘incidental benefit exception’ as the equivalent of the required-
vehicle exception. In Felix v. Asai (1987) 192 Cal.App.3d 926 [237 Cal. Rptr.
718] (Felix), we used the phrase ‘vehicle-use exception.’ The phrase ‘required-
use doctrine’ also has been used. The ‘vehicle-use’ variant appears in the title to
California Civil Jury Instruction (CACI) No. 3725, ‘Going-and-Coming
Rule - Vehicle-Use Exception.’ The various labels and the wide range of
circumstances they cover have the potential to create uncertainty about the
factual elements of the exception - a topic of particular importance when
reviewing a motion for summary judgment for triable issues of material fact. [¶]
To structure our analysis of this exception, and assist the clear statement of the
factual elements of its variants, we adopt the phrase ‘vehicle-use exception’ from
Felix and CACI No. 3725 to describe the exception in its broadest form. Next,
under the umbrella of the vehicle-use exception, we recognize two identifiable
categories with different factual elements. We label those two categories as the
‘required-vehicle exception’ and ‘incidental benefit exception’ because those
labels emphasize the factual difference between the two categories.” (Pierson,
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supra, 4 Cal.App.5th at pp. 624-625, original italics, internal citations omitted.)
• “Our division of the vehicle-use exception for purposes of this summary
judgment motion should not be read as implying that this division is required, or
even helpful, when presenting the scope of employment issue to a jury. The
broad formulation of the vehicle-use exception in CACI No. 3725 correctly
informs the jury that the issue of ultimate fact - namely, the scope of
employment - may be proven in different ways.” (Pierson, supra, 4 Cal.App.5th
at p. 625, fn. 4.)
• “The portion of CACI No. 3725 addressing an employer requirement states: ‘[I]f
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.’ ” (Pierson, supra, 4 Cal.App.5th at p. 625.)
• “Our formulation of the incidental benefit exception is based on the part of
CACI No. 3725 that states: ‘The drive to and from work may . . . 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
‘agreement may be either express or implied.’ The existence of an express or
implied agreement can be a question of fact for the jury.” (Pierson, supra,4
Cal.App.5th at p. 629.)
• “ ‘[W]hen a business enterprise requires an employee to drive to and from its
office in order to have his vehicle available for company business during the day,
accidents on the way to or from the office are statistically certain to occur
eventually, and, the business enterprise having required the driving to and from
work, the risk of such accidents are risks incident to the business enterprise.’ [¶]
These holdings are the bases for the CACI instruction, the first paragraph of
which tells the jury that the drive to and from work is within the scope of
employment if the “employer requires [the] employee to drive to and from the
workplace so that the vehicle is available for the employer’s business,” and the
second paragraph, that the drive may be if ‘the use of the employee’s vehicle
provides some direct or incidental benefit to the employer’ and ‘there may be a
benefit to the employer if, one, the employee has [agreed] to make the vehicle
available as an accommodation to the employer, and two, the employer has
reasonably come to rely on the vehicle’s use and expect the employee to make it
available regularly.’ (CACI No. 3725.)” (Jorge, supra, 3 Cal.App.5th at pp.
401-402, internal citation omitted.)
• “ ‘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.]’ . . .
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,
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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.)
• “ ‘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].)
• “[N]ot all benefits to the employer are of the type that satisfy the incidental
benefits exception. The requisite benefit must be one that is ‘not common to
commute trips by ordinary members of the work force.’ Thus, employers benefit
when employees arrive at work on time, but this benefit is insufficient to satisfy
the incidental benefits exception. An example of a sufficient benefit is where an
employer enlarges the available labor market by providing travel expenses and
paying for travel time.” (Pierson, supra, 4 Cal.App.5th at p. 630.)
• “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
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
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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.)
• “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
traveling to or from work in that vehicle.” (Halliburton Energy Services, Inc.,
supra, 220 Cal.App.4th at p. 96, internal citation omitted.)
• “[T]he employer benefits when a vehicle is available to the employee during off-
duty hours in case it is needed for emergency business trips.” (Moreno v. Visser
Ranch, Inc. (2018) 30 Cal.App.5th 568, 580 [241 Cal.Rptr.3d 678].)
• “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].)
• “Whether the transit is part of the employment relationship tends to be a more
subtle issue than whether the transit was between home and work. . . . ‘These
are the extraordinary transits that vary from the norm because the employer
requires a special, different transit, means of transit, or use of a car, for some
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particular reason of his own. When the employer gains that kind of a particular
advantage, the job does more than call for routine transport to it; it plays a
different role, bestowing a special benefit upon the employer by reason of the
extraordinary circumstances. The employer’s special request, his imposition of an
unusual condition, removes the transit from the employee’s choice or
convenience and places it within the ambit of the employer’s choice or
convenience, restoring the employer-employee relationship.’ ” (Zhu v. Workers’
Comp. Appeals Bd. (2017) 12 Cal.App.5th 1031, 1038-1039 [219 Cal.Rptr.3d
630].)
• “Liability may be imposed on an employer for an employee’s tortious conduct
while driving to or from work, if at the time of the accident, the employee’s use
of a personal vehicle was required by the employer or otherwise provided a
benefit to the employer.” (Newland, supra, 24 Cal.App.5th at p. 679.)
Secondary Sources
4 Witkin, Summary of California Law (11th ed. 2017) Agency and Employment,
§ 195
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[4][a] (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,
§ 427.22 (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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