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Plaintiffs Dogged by the “Coming and Going” Rule

9/16/20

By: Jennifer Weatherup

In a June 2020 decision, a California court upheld a defendant hospital’s motion for summary judgment, finding that the “coming and going” rule precluded liability for an automobile accident involving a volunteer pet therapist, and further finding that no exceptions to the rule applied. Savaikie v. Kaiser Foundation Hospitals (2020) 52 Cal. App. 5th 223.

The pet therapist, who was considered an employee for purposes of vicarious liability, used his personal vehicle to transport himself and a dog to an assisted living facility in order to provide volunteer pet therapy to a Kaiser patient. After completing the session, the pet therapist drove to a credit union to conduct personal business and then began to drive home. On his way home, he struck and killed a pedestrian.

The “coming and going” rule provides that an individual is not considered to be within the scope of their duties when they are in the process of going to and from their place of employment.

Here, the plaintiffs claimed that the rule should not apply in light of the “required vehicle use” exception, which applies when an employer requires the employee to furnish a vehicle for transportation on the job. However, the court found that the need for the pet therapist to travel to a variety of locations, and the need for him to transport the dog, did not create an express or implied requirement that the pet therapist use his own vehicle. Although there was an agreement or arrangement that the pet therapist would drive his personal vehicle, the hospital would also permit him to use other means of transportation, such as rideshare apps. Similarly, the court dismissed the argument that the vehicle use exception should apply because the hospital derived an “incidental benefit” from the pet therapist’s use of the vehicle, because this exception only applies where the use of a personally owned vehicle is either an expressed or implied condition of employment.

The court further rejected the plaintiffs’ argument that the need to transport “necessary work material” (i.e. the dog), meant that the exception had to apply. Although certain methods of transit, such as public transportation, were not feasible under the circumstances, the record failed to show that transporting an animal could only be accomplished by using a personal vehicle.

Unless the transport of materials required a “special mode of transportation,” the need to transport materials does not warrant an exception to the coming and going rule. The fact that the pet therapist used a harness system to keep the dog in place was not relevant because there was no evidence that the harness was permanently installed or that the vehicle was modified in order to transport the therapy dog. The plaintiffs failed to provide evidence that a vehicle needed to be modified in order to transport the dog, or that the hospital required the pet therapist to use a modified vehicle.

This decision narrows the potential scope of exceptions to the “coming and going” rule, indicating that it should apply unless it is clear that the employer either mandated use of a personal vehicle or that the employee needed to transport work material using a specialized or modified vehicle.

If you have questions or would like more information, please contact Jennifer Weatherup at [email protected].