Recent Affirmance of the Going and Coming Rule


By: Owen Rooney
In Morales-Simental v. Genentech, California’s First District Court of Appeal affirmed summary judgment for the employer, thus rejecting plaintiff’s attempts to expand on the special errand exception to going and coming rule. (No. A145865). The employee was involved in a fatal auto accident at 3:30 a.m. while driving his personal auto. The employee told the investigating officer he was going to work on his night off to pick up resumes for upcoming job interviews. The employee testified he was going to work to pick up some resumes and personal belongings on his way to visit his grandmother. He also testified that he was going to pick up the resume of his unemployed friend who had allegedly asked for a job recommendation. However, the friend denied this.
One exception to the going and coming rule is if the employee is on a “special errand” at the employer’s behest. Plaintiff argued that because the employee involved in this accident was “a supervisorial employee tasked with hiring” who “had authority to act on [the employer’s] behalf,” he could “request himself to complete a special errand connected” to his task. The court rejected this theory, holding that “such reasoning would expand the special errand rule to allow employees at various levels to request special errands of themselves on behalf of their employers, thereby stripping the employer of the ability to control when it will be liable for an employee’s off-shift activities.”
Plaintiff also argued that the “special errand” exception applied because the employee was sent work emails before the accident, and so may have been coming into work to respond. The court rejected this argument as well because the emails “did not require [the employee] to come in at a specific day or time” – much less 3:55 a.m. when the accident occurred.
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