On March 22, 2000, respondent Minimed hired a pest control company to spray pesticide overnight to eliminate fleas at respondent's facility. Around 7:00 a.m. the next day, Minimed clerical employee Irma Hernandez arrived for work. She noticed a funny smell similar to "Raid." By 10 o'clock, she felt ill, with a headache, nausea, and tightness in her chest. At noon, she told two supervisors she did not feel well enough to continue working and wanted to go home. One supervisor offered to send her to the company doctor, but Hernandez declined the offer, while another supervisor asked whether she felt well enough to drive home, and she said yes. (Eventually, nine workers went home early feeling ill and 22 employees sought medical care either that day or later for their exposure to the pesticide.)
Hernandez drove home shortly after noon. While in route, she rear-ended appellant Barbara Bussard, who was stopped at a red light. Hernandez told the police officer who responded to the accident scene that she had felt dizzy and lightheaded before the accident.
Appellant sued Hernandez (who is not a party to this appeal) and respondent Minimed alleging a single cause of action for negligence for her personal injuries and property damage. She claimed respondent was vicariously liable as Hernandez's employer under the doctrine of respondeat superior because Hernandez was acting within the course and scope of her employment when she was driving home ill from pesticide exposure.
Respondent moved for summary judgment. It argued the "going-and-coming" rule meant Hernandez was not within the course and scope of her employment during her commute home. Accordingly, it should not be held vicariously liable under respondeat superior.
The court agreed. It noted the pesticide had not incapacitated Hernandez to the point of rendering her irrational. Thus, her exposure to it did not justify disregarding the going-and-coming rule to make respondent vicariously liable for her as she drove home sick. This appeal followed.
Under the doctrine of respondeat superior, an employer is ordinarily liable for the injuries its employees cause others in the course of their work. Respondeat superior imposes liability whether or not the employer was itself negligent, and whether or not the employer had control of the employee. The doctrine's animating principle is that a business should absorb the costs its undertakings impose on others. As one court described the doctrine, "Under the theory of respondeat superior, an employer is vicariously liable for an employee's torts committed within the scope of employment This theory is justified as "a deliberate allocation of a risk. The losses caused by the torts of employees, which as a practical matter are sure to occur in the conduct of the employer's enterprise, are placed upon that enterprise itself, as a required cost of doing business." The employer is liable not because the employer has control over the employee or is in some way at fault, but because the employer's enterprise creates inevitable risks as a part of doing business."
The doctrine's application requires that the employee be acting within the course of her employment, which case law defines expansively. "In California, the scope of employment has been interpreted broadly under the respondeat superior doctrine. For example, '[t]he fact that an employee is not engaged in the ultimate object of his employment at the time of his wrongful act does not preclude attribution of liability to an employer.' Thus, acts necessary to the comfort, convenience, health, and welfare of the employee while at work, though strictly personal and not acts of service, do not take the employee outside the scope of employment. Moreover, ' "where the employee is combining his own business with that of his employer, or attending to both at substantially the same time, no nice inquiry will be made as to which business he was actually engaged in at the time of injury, unless it clearly appears that neither directly nor indirectly could he have been serving his employer." It is also settled that an employer's vicarious liability may extend to willful and malicious torts of an employee as well as negligence. Finally, an employee's tortious act may be within the scope of employment even if it contravenes an express company rule and confers no benefit to the employer.
Despite the doctrine's wide reach, courts have not defined it so broadly as to include an employee's daily commute. "Case law has established the general rule that an employee is outside the scope of his employment while engaged in his ordinary commute to and from his place of work. This principle is known as the 'going-and-coming rule' and is based on several theories. One is that the employment relationship is suspended from the time the employee leaves his job until he returns. Another is that during the commute, the employee is not rendering services to his employer." . . .
The going-and-coming rule is not ironclad, however, and allows for several exceptions. One exception applies when an employee endangers others with a risk arising from or related to work. In determining whether such danger arises from or is related to work, case law applies a foreseeability test. Our Supreme Court describes this type of foreseeability, which is different from the foreseeability of negligence, as employees' conduct that is neither startling nor unusual. " 'One way to determine whether a risk is inherent in, or created by, an enterprise is to ask whether the actual occurrence was a generally foreseeable consequence of the activity. . . . "[F]oreseeability" as a test for respondeat superior merely means that in the context of the particular enterprise an employee's conduct is not so unusual or startling that it would seem unfair to include the loss resulting from it among other costs of the employer's business. . . .' . . . [Such a test is] useful because it reflects the central justification for respondeat superior: that losses fairly attributable to an enterprise--those which foreseeably result from the conduct of the enterprise--should be allocated to the enterprise as a cost of doing business."
This test has been applied to employees who got into car accidents on the way home after drinking alcohol at work. Courts have found a sufficient link between the drinking and the accidents to make the collisions neither startling nor unusual, and thus foreseeable under respondeat superior.
Hernandez suffered pesticide exposure at work to which she attributed illness and impaired driving. That an employee might not be fit to drive after breathing lingering pesticide fumes for several hours is not such a startling or unusual event that we find a car accident on Hernandez's commute home was unforeseeable. Hence, the trial court erred in finding the going-and-coming rule barred appellant's claim of respondeat superior. Indeed, the going-and-coming rule was an analytical distraction. The thrust of appellant's claim for vicarious liability was that Hernandez was an "instrumentality of danger" because of what had happened to her at work. Although Hernandez's decision to drive home gave respondent an opening to raise the going-and-coming rule, the rule did not apply because her decision was a fortuity that must not obscure appellant's central claim that Hernandez's job had contributed to the accident. Thus, summary judgment for respondent was improper.
Respondent argues the foreseeability exception to the going-and-coming rule does not apply because it was not negligent. In support, respondent points to the absence of evidence that it contributed in any negligent manner to the underlying pesticide exposure. It also cites the uncontested fact that its supervisors diligently inquired into Hernandez's ability to drive before she went home. Respondent contrasts its seeming blamelessness with decisions such as Childers and Harris imposing vicarious liability for drunken employees, suggesting liability attached to the employer in those decisions in part because the employer bore some responsibility for the employee's intoxication. Whatever merit respondent's argument might have in defeating appellant's theory that respondent was directly liable to her for ordinary negligence a theory we need not address it, it does not apply to vicarious liability.
The judgment is reversed and the court is directed to enter a new and different order denying respondent Minimed, Inc.'s motion for summary judgment. Appellant to recover her costs on appeal.
Cooper, P. J., and Boland, J., concurred.