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The “going and coming” rule and the “work-spawned risk” exception

On February 24, 2015, Kim Rushton struck and killed Ralph Bingener, a pedestrian, while Rushton was driving to work.  Rushton worked for the city in a laboratory for a water treatment plant.

Bingener’s family sued Rushton and also added the City of LA as a defendant, arguing that they were liable as Rushton was on his way to work at the time of the incident.

The City moved for summary judgment, invoking the “going and coming rule” and arguing it insulated the City from liability for Rushton’s actions.

Bingener’s family argued that an exception to the “going and coming rule,” the “work-spawned risk” exception applied.  This exception applies when an employee endangers others with a risk arising from or related to work. For example, where an employee gets into a car accident on the way home after drinking alcohol at work with his supervisor’s permission, courts have carved out an exception to the going and coming rule. Where, as in such a case, there is a sufficient link between the drinking and the accidents as to make the collisions neither starling nor unusual, the courts have found that the risk was one that may be regarded as typical of or broadly incidental to the employer’s enterprise. (Childers v. Shasta Livestock Auction Yard, Inc. (1987) 190 Cal.App.3d 792; see Bussard v. Minimed, Inc. (2003) 105 Cal.App.4th 798, 803, 807 (Bussard) [employee’s exposure to pesticides during work hours impaired her ability to safely drive home and, therefore, the going and coming rule did not apply].)

Applying the “work-spawned risk” exception to the facts here, Bingener’s family argued that the City of Los Angeles knew about Rushton’s health conditions and how it might impair his ability to drive because Rushton was currently being treated for a work-related back-injury through the City’s workers compensation program.  Such treatment included the furnishing of medication – medication that warned against use if operating a motor vehicle.

Bingener’s family argued Rushton’s then-present injuries and medications rendered him unfit to drive.  With this knowledge, the City allowed Rushton to return to work prematurely without placing any restrictions on his driving. Given that Rushton was impaired and unfit to drive, his driving to work was a foreseeable risk of the City’s activities. The City, should, therefore, be held liable for “a negligently created work-spawned risk endangering the public.”

The trial Court granted the City’s motion for summary judgment, dismissing them from the case.  On appeal, the Appellate Court affirmed the lower Court dismissal, holding:

“plaintiffs failed to adduce sufficient facts upon which they could establish a triable issue of fact on their claim that Rushton’s accident was a foreseeable event arising from or relating to his employment for the City at its water plant laboratory. Nothing about the enterprise for which the City employed Rushton made his hitting a pedestrian while commuting a foreseeable risk of this enterprise. The “going and coming rule” was created for precisely the situation presented here and its application in this case precludes plaintiffs’ claim of vicarious liability against the City.”

Bingener v. City of Los Angeles (2019) ___Cal.App.5th___ [2019 Cal. App. LEXIS 1313, at *3-4].

So, while the “work-spawned risk” exception to the “going and coming” rule is an interesting and novel approach, it was not sufficient in the context of the Bingener case to overcome the “going and coming” rule.

Little-known exceptions such as this are the reason you should consult experienced attorneys right away if you or a loved one are injured by someone on their way to or from work.

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Mr. Serrano has been admitted to practice before California State and Federal Courts. He was named to the Super Lawyers’ 2012, 2013, 2014, 2015, and 2016 Southern California Rising Stars List, an honor awarded to no more than 2.5% of attorneys in Southern California each year. View Attorney Jean-Simon Serrano's Attorney Bio Here.

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