Carl Kanowsky, Esq.

Let me pose a hypothetical situation. Suppose you are an employer with some employees. Some of your employees drive their cars to work and rarely use those same cars to do some errand or other business-related function for you.

Suppose further that one of these same employees is leaving work to go home. He has not used his car that day for any work-related purpose other than going and coming to work. As he’s leaving your facility, he gets into an accident and injures someone.

Question: Do you as the employer have any possible liability for this accident?

Answer: Yes, you might.

In the tragic case of Lobo v. Tamco, a 16-year employee of Tamco was leaving work to go home. In his 16 years with Tamco, he had used his car for work-related assignments no more than 10 times.

As he was leaving work, he did not notice the three sheriff ‘s motorcycles with lights and sirens. As he entered the street, Deputy Lobo was unable to avoid the employee’s car. Sadly, Deputy Lobo was killed in the ensuing accident.

Deputy Lobo’s widow and three minor children sued both the employee driver and Tamco, the employer. The plaintiffs argued that the employee was in the course and scope of his employment with Tamco; thus Tamco shared some liability for the accident.

Tamco asked the court to dismiss the lawsuit. It urged that 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 of Appeals said that while that’s generally true, “a well-known exception to the going-and-coming rule arises where the use of the car gives some incidental benefit to the employer. Thus, the key inquiry is whether there is an incidental benefit derived by the employer.”

The court called it 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.”

We’re not talking about someone who works for Papa John’s Pizza and is using his car every day to make deliveries. We all expect there to be employer liability if one of the delivery guys gets into an accident.

Instead, this is a case where about once every other year, the employee would use his car to visit a complaining customer. Tamco didn’t provide the employee with a company car because he so seldom needed one. If the employee needed to go somewhere for Tamco, he used his own car, and Tamco reimbursed him for his mileage.

The court said the frequency that the employee used his car to help out the employer is essentially irrelevant. Rather, “application of the doctrine turns on whether the employer expressly or implicitly required the employee to make the vehicle available, or has reasonably come to expect that the vehicle will be available for work purposes, and whether the employer derived a benefit from the availability of the vehicle.”

Nice and vague, huh?

But do you as an employer have something in your employee manual or in your policies and procedures? Or do you tell your employees that having a car is a necessity to get or keep a job with you? If so, if one of your employees causes an accident while coming to work or going home, you might also share in the liability.

Forewarned is forearmed. Check with your insurance agent to make sure you have coverage in case this happens. Failure to do so could result in a major judgment against you. You might also want to check how much you really need your employees to use their cars for you.

Carl Kanowsky of Kanowsky & Associates is an attorney in the Santa Clarita Valley. He may be reached by email at cjk@kanowskylaw.com. Nothing contained herein shall be or is intended to be construed as providing legal advice.