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Ordinarily, an employer is not liable for accidents that happen during an employee’s regular commute. But that rule changes where the employee is on a “special errand.”

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legal updates

October 2009

Employer Tort Liability Update


Employer Held Liable

For Employee Auto Accident

During Commute Home


“Special Errand” Doctrine Applied



By Christopher W. Olmsted


An employee of Warner Bros. Entertainment was returning home after a three-day business conference. He left the airport and was driving his regular commute route home when he was involved in a car accident that injured two pedestrians, and killed a third person. Is Warner Bros. liable for the accident?

Ordinarily, an employer is not liable for accidents that happen during an employee’s regular commute. But that rule changes where the employee is on a “special errand.” The court in Jeewarat v. Warner Bros. Entertainment, Inc. examined the question of whether a person returning home from a business trip is on a “special errand.”

Respondeat Superior


In the Jeewarat case, the victims sued the driver as well as his employer. They sought to impose liability against Warner Bros. based on principles of respondeat superior.

“Respondeat superior” is a Latin phrase meaning “let the master answer.” The doctrine of respondeat superior imposes vicarious liability on an employer for the torts of an employee acting within the scope of his or her employment, whether or not the employer is negligent or has control over the employee. In other words, a careful employer can be held liable for the acts of its careless employee, if the acts are done in the course of his employment.

The judicial system has imposed this sort of liability on employers as a matter of policy. “[I]t is considered fair to allocate to the costs of doing business a loss resulting from a risk that arises in the context of the employment enterprise,” observed the court in the Jeewarat case. In other words, a business creates a risk of injury by placing its employees out in the public where they might cause accidents. Since the employer sent the employee on the errand, the employer should pay for any harm caused by the negligent employee.

The doctrine has been expanded to apply to “mixed” errands. For example, courts have held that where an employee on the road to run an errand for personal reasons and also to perform some duty for the employer, he is within the course and scope of employment despite the fact that his trip is partly for personal reasons.

Going And Coming Rule


Warner Bros. thought it had a good defense to the lawsuit. It filed a motion for summary judgment based on the “going and coming rule,” which provides that an employer is not subject to vicarious liability for accidents occurring during an employee’s commute to or from the workplace.

Under this rule, an employee is not regarded as acting within the scope of employment while going to or coming from the workplace. In other words, a regular commute is not part of the scope of employment. 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.

Here, Warner Brothers argued that its employee was on his regular commute. His business trip ended when he flew into the Burbank airport. He was driving to his home. He was on his commute home when he hit the pedestrians.

The appellate court rejected this argument, finding that the accident fell under an exception to the exception, called the “special errands” doctrine.

Special Errands Doctrine


The special errands doctrine holds an employer vicariously liable for accidents occurring while an employee is engaged in a special errand for the employer, including the employee’s commute to or from the special errand. For example, a special errand can occur when:

  • an employee goes on a business errand for his employer leaving from his workplace and returning to his workplace.
  • an employee who is called to work to perform a special task for the employer at an irregular time. The employee is within the scope of his employment during the entire trip from his home to work and back to his home.
  • an employer asks an employee to perform a special errand after the employee leaves work but before going home. The employee is normally within the scope of his employment while traveling to the special errand and while traveling home from the special errand. That is, the entire trip “counts” as a special errand.

    Business Trip Is A Special Errand


    In the Jeewarat case, the plaintiff accident victims contended that the out-of-town business conference was a special errand, and therefore the entire trip, including the commute to and from this errand, was within the course and scope of employment. Warner Bros. asserted that the special errand doctrine does not apply to commercial travel.

    The appellate court concluded that a special errand may include commercial travel such as the business trip in this case.

    “The evidence that Warner Bros. paid for the employee’s airfare, hotel accommodations, and airport parking leads to a reasonable inference that Warner expected to derive a benefit from his attendance at the conference. The conference was led by an anti-piracy vendor which Warner utilized. It is reasonable to infer that the employee would use the information he learned at the conference in his position as vice-president of Warner’s anti-piracy internet operations.”

    The court reasoned that because the employee attended the conference for the benefit of the employer, the employee was on a “special errand” for the employer, and all travel, including the commute from the airport to his home, was within the employee’s course and scope of employment.

    Practical Tips:


  • Make sure that your company has "non-owned" auto coverage which covers employees driving their own vehicles while on the job.
  • Obtain proof of insurance from employees.
  • Consider whether the company ought to develop rules regarding employees going and coming back from business trips.
  • Using public transportation or a shuttle or driver service can eliminate the risk of employee accidents.


    Related articles: Plumbing Contractor Not Liable For Former Employee’s Criminal Act.

    Workplace Policies Update: California Bans “Texting” Behind the Wheel; California Employers Should Update Personnel Policies.



    Download entire October 2009 Legal Update in PDF format.

    This article is intended as a brief overview of the law and are not intended to substitute as legal advice. Any questions or concerns regarding any statute or case law should be addressed to a licensed attorney. Copyright © 2009 by Barker Olmsted & Barnier, APLC. San Diego, California. All rights reserved.




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