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Walsworth Partner Zachariah Tomlin recently obtained summary judgment for a national landscape contractor in a wrongful death lawsuit pending in the San Diego Superior Court. In this action, plaintiffs alleged that our client should be held vicariously liable for the negligence of one of its employees that resulted in the death of a pedestrian. Plaintiffs sought a multi-million-dollar damages award and made no settlement demand in advance of summary judgment.

California employers are generally held liable for the torts of their employees which occur within the course and scope of their employment. However, regular commutes to and from work are not generally considered to be within the course and scope of employment. This principle is commonly referred to as the “Going and Coming Rule.” In the instant suit, plaintiffs alleged that one of our client’s employees negligently operated his personal vehicle while commuting home from work, colliding with, and killing a pedestrian crossing the road. Ultimately, Plaintiffs presented two theories of vicarious liability as exceptions to the Going and Coming Rule: 1.) That our client “required” employees to drive their personal vehicles within the course and scope of employment – the “Required Vehicle Exception;” and 2.) That our client impliedly agreed to bring the daily commute of its employees within the course and scope of employment by allowing an early release while compensating employees for their full eight-hour shift – the “Compensated Travel Exception.” With the assistance of associate Brian Dworetzky, Mr. Tomlin engaged in proactive, early deposition discovery of key witnesses and effectively controlled the pace of litigation. This allowed our team to gather the evidence necessary to proceed with summary judgment.

Based upon Mr. Tomlin’s persuasive legal analysis and presentation, the court found that there was neither evidence, nor any applicable precedent that would support the imposition of vicarious liability. Specifically, the court ruled that the undisputed evidence established that our client’s employee was never required to utilize his personal vehicle to perform his work, had concluded all of his work-related tasks on the day in question prior to entering his personal vehicle, and was engaged in purely personal activities at the time of the fatal collision. The court further confirmed long standing precedent that a compensated early release from work is not generally sufficient to imply an agreement to bring a commute within the course and scope of employment. Based upon these findings, the court held that our client satisfied its burden on summary judgment, and that plaintiffs failed to present any triable issues of material fact. This ruling was dispositive of the entire lawsuit in favor of our client.

Walsworth would like to thank Mr. Tomlin and Mr. Dworetzky, and members of our staff for their hard work on this case. For more information on the issues presented in this matter, please contact Zachariah Tomlin.