CACI No. 3727. Going-and-Coming Rule - Compensated Travel Time Exception

Judicial Council of California Civil Jury Instructions (2020 edition)

Download PDF
3727.Going-and-Coming Rule - Compensated Travel Time
Exception
If an employer has agreed to compensate an employee for the employee’s
commuting time, then the employee’s conduct is within the scope of
employment as long as the employee is going to the workplace or
returning home.
New November 2017; Revised May 2020
Directions for Use
This instruction sets forth the compensated travel time exception to the going-and-
coming rule. It may be given with CACI No. 3720, Scope of Employment. CACI
No. 3723, Substantial Deviation, may also be given if the employee did not go
directly from home to work or work to home.
Under the going-and-coming rule, commute time is generally not within the scope
of employment. (Jeewarat v. Warner Bros. Entertainment, Inc. (2009) 177
Cal.App.4th 427, 435 [98 Cal.Rptr.3d 837].) However, commute time is within the
scope of employment if the employer compensates the employee for the time spent
commuting. (Lynn v. Tatitlek Support Services, Inc. (2017) 8 Cal.App.5th 1096, 1111
[214 Cal.Rptr.3d 449].)
Sources and Authority
• “[T]he employer may agree, either expressly or impliedly, that the relationship
shall continue during the period of ‘going and coming,’ in which case the
employee is entitled to the protection of the act during that period. Such an
agreement may be inferred from the fact that the employer furnishes
transportation to and from work as an incident of the employment. 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.” (Kobe v. Industrial Acci. Com. (1950) 35 Cal.2d 33, 35 [215 P.2d
736], internal citations omitted.)
• “There is a substantial benefit to an employer in one area to be permitted to
reach out to a labor market in another area or to enlarge the available labor
market by providing travel expenses and payment for travel time. It cannot be
denied that the employer’s reaching out to the distant or larger labor market
increases the risk of injury in transportation. In other words, the employer,
having found it desirable in the interests of his enterprise to pay for travel time
and for travel expenses and to go beyond the normal labor market or to have
located his enterprise at a place remote from the labor market, should be
required to pay for the risks inherent in his decision.” (Hinman v. Westinghouse
Electric Co. (1970) 2 Cal.3d 956, 962 [88 Cal.Rptr. 188, 471 P.2d 988].)
• “We are satisfied that, where, as here, the employer and employee have made the
746
Copyright Judicial Council of California
travel time part of the working day by their contract, the [employee] should be
treated as such during the travel time, and it follows that so long as the
employee is using the time for the designated purpose, to return home, the
doctrine of respondeat superior is applicable.” (Hinman, supra, 2 Cal.3d at pp.
962.)
• “[C]ourts have excepted from the going and coming rule those cases in which
the employer and employee have entered into an employment contract in which
the employer agrees to pay the employee for travel time and expenses associated
with commuting, thus making ‘the travel time part of the working day by their
contract.’ ” (Lynn, supra, 8 Cal.App.5th at p. 1111.)
• “To the same effect are the cases where the employer furnishes transportation to
and from work. ‘ “The essential prerequisite to compensation is that the danger
from which the injury results be one to which he is exposed as an employee in
his particular employment,” and ‘[t]his requirement is met when, as an employee
and solely by reason of his relationship as such to his employer, he enters a
vehicle regularly provided by his employer for the purpose of transporting him
to or from the place of employment.’ Here, again, it is the employer’s decision
to make the transit part of the employment relationship.” (Zhu v. Workers’ Comp.
Appeals Bd. (2017) 12 Cal.App.5th 1031, 1039 [219 Cal.Rptr.3d 630].)
• “[T]he mere payment of a travel allowance as shown in the present case does
not reflect a sufficient benefit to defendant so that it should bear responsibility
for plaintiff’s injuries.” (Caldwell v. A.R.B., Inc. (1986) 176 Cal.App.3d 1028,
1042 [222 Cal.Rptr. 494].)
Secondary Sources
3 Witkin, Summary of California Law (11th ed. 2017) Agency, § 194
2 Levy et al., California Torts, Ch. 20, Motor Vehicles, § 20.42[3][c] (Matthew
Bender)
2 Wilcox, 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 Liablity for
Employee’s Torts, § 248.16[4] (Matthew Bender)
10 California Points and Authorities, Ch. 100A, Employer and Employee:
Respondeat Superior, § 100A.28 et seq. (Matthew Bender)
3728-3799. Reserved for Future Use
VICARIOUS RESPONSIBILITY CACI No. 3727
747
Copyright Judicial Council of California

© Judicial Council of California.