Under the doctrine of respondeat superior, an employer, master, or principal will be responsible for the negligence of his employee, servant, or agent when in the course and scope of employment. Often in dispute is when this vicarious liability applies: when it begins, when it stops, or when it is temporarily suspended in terms of the course and scope of employment. Typically, an employer will not be vicariously liable when the employee is coming to or going from employment (i.e., on his way to work or heading home from work).
However, there are exceptions to the “coming and going” exception, as highlighted in a recent case handed down from the Louisiana Fifth Circuit Court of Appeal: Miller v. Shamsnia.[1] In this matter, the Appellate Court found that a neurologist’s employer was indeed liable for the fault of the defendant neurologist while the neurologist was on his way to the hospital for work. Ultimately, it was the doctor’s eligibility for mileage reimbursement that led the court to find the employer vicariously liable under the doctrine of respondeat superior. A summary of the matter is below.
Miller v. Shamsnia – Facts
Plaintiffs were travelling northbound on the Lake Pontchartrain Causeway Bridge when their vehicle’s tire had a blowout. They were forced to travel slowly in the right lane of travel with emergency lights on. The defendant neurologist was also travelling northbound on the Causeway Bridge and came up behind Plaintiffs. They alleged the neurologist was travelling at an excessive speed. Whether speeding or not, the neurologist struck the rear of the Plaintiff vehicle, damaging it and allegedly severely injuring the Plaintiffs.
The Petitions were amended to add Tulane University School of Medicine (Tulane) and its insurer, alleging that the neurologist was in the course and scope of employment at the time of the accident and, therefore, the hospital was vicariously liable through the doctrine of respondeat superior. Defendants stated that the neurologist had visited a construction site for Advanced Neurodiagnostic Center on the south shore of the Lake and was thereafter heading north across the Causeway towards Lakeview Hospital to perform duties pursuant to Tulane’s third-party agreement with the hospital.
In a Motion for Summary Judgment, it was alleged by the defense that the “coming and going” rule applied and that the alleged negligence was not so closely connected to the neurologist’s employment duties with Tulane that the risk of harm was fairly attributable to Tulane. They further argued the neurologist was in his private vehicle and was not paid any mileage for the trip, among other arguments.
Plaintiffs opposed the Motion, noting that the neurologist’s sole purpose for travelling cross the Causeway was to meet Tulane’s obligations under its contract with Lakeview Hospital and that the neurologist’s prior visit to the Advanced Neurodiagnostic Center construction site was to a location also with a contract with Tulane, further placing his activity between these work sites within an exception to the “coming and going” rule. They further argued that travel to Lakeview Hospital constituted a “special mission” and that Tulane provided physicians mileage reimbursement for travel to the hospital. Plaintiffs thereafter filed their own Motion for Summary Judgment, alleging two chief exceptions to the “coming and going” rule: Tulane’s offer of mileage reimbursement and the neurologist’s use of his personal vehicle was still incidental to or in the performance of his responsibilities with Tulane.
The trial court denied the defense Motion for Summary Judgment and granted Plaintiffs’ Motion. The trial court found that the neurologist was within the course and scope of his employment at the time of the accident, citing the remote workplace and reimbursement exceptions to the coming and going rule.
Appellate Court Affirms
The appellate court noted that an employee going to and coming from work is generally not in the course and scope of his employment, that the employment relationship is typically suspended when the employee leaves work until he returns to resume work. However, the court noted there were various exceptions to this rule, including where the employer involved himself in the transport of the employee as an incident to the employment agreement, either through furnishing a vehicle or payment of wages during travel. If an employer pays travel expenses and the trip is employment-related, and employee is in the course and scope of employment while not physically in the workplace.
It was confirmed in discovery that the neurologist was, indeed, an employee of Tulane whose duties included work functions at Lakeview Hospital on a rotating basis. The neurologist was on his way to Lakeview Hospital to perform these duties at the time of the accident. Generally, while on his way to work in a personal vehicle, his activities would have fallen under the “coming and going” exception.
However, the court found that, indeed, one of the exceptions applied. It was also undisputed that Tulane physicians were provided mileage reimbursement for their trips to Lakeview Hospital under the Tulane-Lakeview contract, at IRS standard rates. This meant that Tulane involved itself in the physicians’ transport to and from the hospital. It was undisputed that the neurologist in this incident did not request and was not paid mileage for this particular trip. However, the court found that irrelevant. The neurologist was still eligible for the travel-mileage compensation. It was not the actual payment, but Tulane’s offer to pay the travel expenses that involved them in the travel to Lakeview Hospital as part of Tulane’s contract with the hospital. As such, the neurologist was acting in the course and scope of his employment with Tulane when the accident occurred on his way to Lakeview Hospital. Under these “unique facts,” as the appellate court put it, the trial court was correct in granting Plaintiffs’ Motion for Summary Judgment and denying the defense Motion.
Conclusion
The “coming and going” exception to an employee’s being in the course and scope of employment is rather well known. Not as well known are the exceptions to the exception, or just how far they can extend. One might assume that an employer’s providing a car or paying travel expenses or wages while travelling would mean and employee was engaged in employment activities. However, the fact that an employer can be held liable for an employee’s negligence during travel simply for offering to pay travel expenses (when none are actually paid or requested) is not as obvious.
As the appellate court noted, perhaps these facts are a bit more “unique.” The employee’s travel expenses were typically reimbursed as a matter of policy; it was expected that such reimbursement would occur, even if, in fact, it did not. However, this case may be used by Plaintiffs to try to extend the “course and scope” of employment over additional travel and activities in the future. They may seek the vicarious liability of employers when incidents occur and employees are not actually engaging in direct work activities.