Kim Rushton worked for the City of Los Angeles as a chemist at one of the City’s water treatment plants. In 2015, while Rushton was commuting to work in his own car, he struck and killed pedestrian, Ralph Bingener, who was stepping off the curb into a crosswalk. Rushton was not performing any work for the City at the time, and his job did not require him to be in the field or drive his personal car. The City did not compensate Rushton for his commute time.
At the time of the accident, Rushton was receiving treatment for chronic health problems, including neuropathy in his feet, a tremor, and occasional seizures. However, Rushton testified that his conditions were controlled and did not contribute to the accident in any way. Additionally, two months before the accident, Rushton was injured on the job. Rushton’s physicians prescribed various work restrictions when he returned to work, but they did not place any restrictions on his driving.
Bingener’s surviving brothers sued. They alleged the City was vicariously liable for Rushton’s negligence. An employer is vicariously liable for the wrongful acts its employees committed within the scope of their employment. However, an employee is generally not acting within the scope of employment when going to or coming from the regular place of work, with some exceptions. This rule is known as the “going and coming” rule. The City moved for summary judgment based on the coming and going rule, and the trial court agreed. Bingener’s brothers appealed.
On appeal, the court concluded that the going and coming rule applied. Rushton was on his normal morning commute, and his work did not require him to use his personal car. Rushton worked in a water treatment plant, and he never went out in the field. Further, nothing about Rushton’s job as a chemist made the chance that he would hit a pedestrian during his ordinary commute a foreseeable risk for the City.
While Bingener’s brothers argued that the “work-spawned risk” exception to going and coming rule applied, the court disagreed. The work-spawned risk exception applies if an employee endangers others with a risk arising from or related to work. The brothers claimed that Rushton’s driving to work was a foreseeable risk to the City’s. However, the court noted that there was no evidence that the City knew or should have known that Rushton was a dangerous commuter. In fact, Rushton testified that his conditions did not contribute to the accident, and his physician, not the City, approved Rushton’s return to work without limitation on his driving. Accordingly, the court concluded that the accident was not a foreseeable event as is required to hold an employer vicariously liable.
Bingener v. City of Los Angeles (2019) 44 Cal.App.5th 134.
NOTE:
While employers are generally not liable for wrongful acts that happen on an employee’s commute to work, employers can be liable for injuries an employee causes while driving within the scope of employment. LCW can help employers evaluate the risks associated with employees driving.