In Moradi v. Marsh United States (Sept. 2013), the Second District of the California Court of Appeal considered whether an employer was liable for a car accident involving its employee who was on her way home from work and stopped to get frozen yogurt and attend a yoga class on the way–and concluded that the employer was liable for the resulting damages.

In this case, company policy required the employee, a salesperson, to drive to and from the office in her personal vehicle.  During the workday, she had to use her car to visit prospective clients, make presentations, provide educational seminars, and transport company materials and coworkers to work-related functions.

On April 15, 2010, the employee left the office at the end of the workday and began driving in the direction of her home.  She had decided that, on the way, she would stop for some frozen yogurt and take a yoga class.  As she headed to the yogurt shop, she collided with a motorcyclist.

The motorcyclist filed a lawsuit against the employee and her employer.  The trial court granted summary judgment to the employer on the ground that the employee was not acting within the scope of her employment when she was heading to the frozen yogurt shop, and the motorcyclist appealed.

On appeal, the Court first stated that “[u]nder the theory of respondeat superior, employers are vicariously liable for tortious acts committed by employees during the course and scope of their employment. … However, under the ‘going and coming’ rule, employers are generally exempt from liability for tortious acts committed by employees while on their way to and from work because employees are said to be outside of the course and scope of employment during their daily commute.”

The Court then stated that a “‘well-known exception to the going-and-coming rule arises where the [employee’s] use of [his or her own] car gives some incidental benefit to the employer.  Thus, the key inquiry is whether there is an incidental benefit derived by the employer. … This exception to the going and coming rule … has been referred to as the ‘required-vehicle’ exception. … The exception can apply if the use of a personally owned vehicle is either an express or implied condition of employment … , or if the employee has agreed, expressly or implicitly, to make the vehicle available as an accommodation to the employer and the employer has ‘reasonably come to rely upon its use and [to] expect the employee to make the vehicle available on a regular basis while still not requiring it as a condition of employment.’”

The Court concluded that at the time of the accident, the employee “was pursuing, at least in part, a personal objective by stopping for frozen yogurt and planning to attend a yoga class.  But those activities did not constitute an unforeseeable, substantial departure from her commute.  Rather, they were a foreseeable, minor deviation on her drive home.  We cannot say that [the employee’s] planned deviation was ‘so unusual or startling that it would seem unfair to include the loss resulting from it among  other costs of [the employer’s] business. . . . In addition, [the employee’s] planned deviation was necessary for her comfort, convenience, health, and welfare. ‘[W]e can think of no conduct more predictable than an employee’s stopping [for something to eat or taking an exercise class] … on the way home.  Where, as here, the trip home is made for the benefit of the employer, … accidents occurring during such minor and foreseeable deviations become part of the ‘inevitable toll of a lawful enterprise.’”

The Court also rejected the employer’s argument that the “special-errand” exception to the going-and-coming” rule, rather than the “required vehicle exception,” precluded liability.  Under the “special-errand” exception, which, according to the Court, is “more narrow than” the required-vehicle exception, “If the employee is not simply on his way from his home to his normal place of work or returning from said place to his home for his own purpose, but is coming from his home or returning to it on a special errand either as part of his regular duties or at a specific order or request of his employer, the employee is considered to be in the scope of his employment from the time that he starts on the errand until he has returned or until he deviates therefrom for personal reasons.’”  The Court did not consider the applicability of the special errand exception, finding that, “Here, the required vehicle exception to the going and coming rule, not the special errand exception, governs our analysis.”

Consequently, although the determination of liability in these types of cases is inherently fact-specific, California employers who require their employees to utilize their personal vehicles for work purposes would be well-advised to review these policies as well as consider whether their general liability insurance policies adequately provide coverage for such potential liability.


Bernstein & Friedland, P.C. is a boutique employment law firm in Los Angeles specializing in wrongful termination, discrimination, harassment, retaliation, and unpaid wage and overtime matters.  Please visit our website at to learn more about us.

Polina Bernstein

Polina Bernstein

Polina Bernstein founded Bernstein & Friedland, P.C. in 2009 and is lead litigation counsel at the firm.

Diana Friedland

Diana Friedland

Diana Friedland is a partner at Bernstein & Friedland, P.C. Her practice focuses on employment litigation and counseling.

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