“Going and Coming” Rule Withstands Special Errand Exception In Application To A Supervisory Employee's Independent Conduct

In Morales-Simental v. Genentech, Inc. (A145865) the California Court of Appeal upheld the “going and coming” rule which provides an employee commuting to or from work is generally outside the scope of employment, and thus the employer is not vicariously liable for the employee’s torts.  The plaintiffs in Morales-Simental sued defendants Vincent Inte Ong and his employer, Genentech, Inc., after Ong was involved in a motor vehicle accident on his way to Genentech on his day off.    

Genentech moved for summary judgment arguing the “going and coming” rule put Ong outside of his scope of employment at the time of the accident.  Genentech presented evidence that Ong was driving to Genentech for his own convenience and not at Genentech’s requests or as part of his regular duties.  In opposition plaintiffs argued Genentech was liable under the “special errand” exception to the “going and coming” rule because Ong was on a special errand requested by his employer, Genentech.  The trial court granted summary judgment in favor or Genentech and plaintiffs appealed.  

On appeal the Court rejected plaintiffs’ argument that Ong, as a lead technician with Genentech, could order himself to perform a special errand in connection with his role.  Instead, the Court found that despite his supervisory roles at Genentech, could not request himself to perform a special errand on his employer’s behalf in order to put his conduct within the scope of his employment.  The Court noted that Ong, for his own reasons, chose to drive to Genentech, and that the record was void of any evidence that anyone from Genentech requested he do so.

In declining to expand the special errand exception as proposed by plaintiffs, the Court acknowledged such an application would essentially allow employees at various levels to order themselves to complete special errands on behalf of their employers.  The result would render employers wholly unable to control employer liability for off-shift activities of their employees. 

While the doctrine of respondeat superior generally holds employers liable for the negligence of their employees, a thorough understanding of course and scope, and exceptions such as the “coming and going rule,” are pivotal in evaluating and avoiding plaintiff’s misplaced attempts at triggering employer liability.