California Appellate Court Addresses Respondeat Superior Tort Liability Under the “Going and Coming” Rule in the Context of Remote/Hybrid Work
California employers can be held liable for the torts of their employees when those torts are committed within the course and scope of employment. Under the “going and coming rule,” however, California exempts employers from liability for employee torts committed while commuting to and from work.
In Chang v. So. Cal. Permanente Medical Group, Case No. B340770 (April 9, 2026), the California Court of Appeal for the Second District clarified the parties’ respective burdens when arguing for and against respondeat superior tort liability, where the “going and coming rule” may apply, and concluded that the plaintiff did not meet his burden to create triable issues as to whether an employee was acting in the scope of her employment at the time of an accident where the employee worked a hybrid schedule but was on her way to work at the employer’s office and engaged in a personal errand when the accident occurred.
In that case, the plaintiff had been riding his bicycle when a palliative care doctor employed by the Southern California Permanente Medical Group (“SCPMG”) struck him with her vehicle while driving to her office at SCPMG’s medical center. The plaintiff filed a lawsuit against SCPMG, alleging negligence, on the theory that the doctor was operating her vehicle in the course and scope of her employment when she hit him and, therefore, SCPMG was liable under the principle of respondeat superior.
The evidence indicated that the doctor worked a hybrid schedule. Most days during the week, she worked in the SCPMG medical center’s office or hospital; for a portion of the day on Wednesdays and while on call nights and weekends, she worked from her home. On the day of the accident, the doctor left her home, intending to drive to her office at the medical center. On the way, and at the moment of the accident, she attempted to turn into a shopping center to run a personal errand unrelated to work.
The doctor called 911 and coworkers after the accident but did not recall participating in any work-related telephone calls prior to the accident; she testified that she was not doing anything work-related when the accident occurred. The plaintiff alleged that there was evidence the doctor was texting with coworkers “mere seconds before the collision,” and argued that created a triable issue as to whether she was acting within the scope of her employment at the time of the accident. Call and text logs did not reveal the content of the doctor’s communications on the morning of the accident, only that they occurred, and the screenshot SCPMG provided as evidence indicated the doctor sent text messages after the accident to inform her coworkers she would not be in that day.
The plaintiff further asserted that the doctor’s employment agreement permitted her to work remotely, that nothing restricted where she could work, that she performed work at both SCPMG locations and at her home, and that SCPMG provided physicians with cellular phones containing SCPMG communication software.
SCPMG moved for summary judgment on the grounds that the doctor was commuting to work at the time of the accident and that she was not acting within the course and scope of her employment pursuant to the “going and coming rule”; therefore, SCPMG argued, it was not liable for any tort allegedly committed by the doctor during her commute. The plaintiff disagreed and argued, in part, that the “going and coming rule” did not apply because SCPMG derived an “incidental benefit” from the doctor’s use of her personal vehicle because it allowed her to commute seamlessly between her two primary work locations, namely her home office and her medical center office. Because the doctor could perform her job anywhere, the plaintiff argued , SCPMG required her to “take on the risk of traveling” by commuting to work.
The trial court agreed with SCPMG and granted summary judgment in its favor, concluding there was “no dispute” that the doctor was commuting to work and was not acting in the course and scope of her employment, as highlighted by the personal errand she was engaged in at the precise time of the accident. It further determined that the factual circumstances did not yield any exceptions to the “going and coming rule.” The doctor was not driving a vehicle provided or required by SCPMG, the vehicle did not provide an incidental benefit to SCPMG, and the doctor was not running a special errand for SCPMG. Finally, the trial court found that there was no evidence to support the plaintiff’s allegation that the doctor was engaged in work at the time of the accident.
The appellate court agreed and affirmed the trial court’s ruling granting summary judgment for SCPMG.
The appellate court first held that the trial court properly shifted the burden to the plaintiff and that the plaintiff did not satisfy his burden. According to the court, the proper inquiry is “whether SCPMG made a prima facie showing that [the doctor] was not acting in the scope of her employment at the time of the accident, and if so, whether [the] plaintiff offered contrary evidence demonstrating triable issues.”
SCPMG met its initial burden with testimony provided by the doctor indicating she was driving in her personal vehicle from her home to her office at the time of the incident and, apart from the commute, she was not doing anything work-related and did not recall participating in any telephone calls prior to the accident.
The burden then shifted to the plaintiff to demonstrate a triable issue, which he did not do. Specifically, he failed to identify any evidence that contradicted the doctor’s testimony. According to the court, “it was not SCPMG’s burden to eliminate all possibility [the doctor] was not working at the time of the accident. Rather, it was [the plaintiff’s] burden to offer admissible evidence contradicting [the doctor’s] testimony that she was not working. Although he speculates she might have been texting coworkers before [the accident], or calling from a second phone, he offers no evidence to support this speculation.”
Next, the appellate court found that the accident occurred during an ordinary commute subject to the “going and coming rule.” The court made this finding in response to the plaintiff’s argument that the rule should not apply because much of the doctor’s work was remote or virtual and she could perform it anywhere, which the plaintiff argued created an “incidental benefit” to SCPMG. Effectively, the plaintiff argued that the “hybrid nature of [the doctor’s] work situation is more akin to traveling between worksites than it is to a ‘common commute.’”
The appellate court disagreed. It noted that the fact the doctor “might have sometimes worked outside of normal working hours or from home does not change the fact that at the time of the accident, [the doctor’s] uncontradicted testimony established she was driving form her home to her medical center office at the beginning of the workday as she did every Monday.” She was not driving “at an unusual time” or providing a benefit to her employer beyond traveling to work. “Assuming arguendo her home at times could be deemed a worksite, that was not the case on the day of the accident, on which she was scheduled to work at her medical center office and not at home. [The doctor] was not shuttling between worksites but simply driving to work in the morning.”
Rejecting the legal arguments asserted by the plaintiff, the appellate court disagreed with his argument that “allowing employees to work both from home and at the office provides a benefit to employers, such as increased productivity and employee satisfaction, and therefore it makes sense to hold employers liable when such ‘hybrid’ employees move between their homes and office.”
According to the appellate court, the “question for respondeat superior liability is whether the employee committed the tort within the scope of employment. A hybrid worker who works both in-office and at home is no more acting within the scope of employment when driving to and from work on in-office days than is a nonhybrid worker who drives to and from work every day. In either case the employee is providing no benefit to the employer apart from traveling to work, a benefit that under the going and coming rule does not trigger respondeat superior liability. To conclude otherwise would eviscerate the going and coming rule for employees who sometimes work from home, thereby discouraging employers from allowing employees that flexibility. We fail to see what policy this serves.”
With the evolution of work environments following the COVID-19 pandemic, this case presents a good summary of the “going and coming rule” for purposes of tort liability and its legal standard in the context of remote and hybrid work.
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