Hinman v. Westinghouse
471 P.2d 988, 2 Cal. 3d 956 (1970)
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Rule of Law:
An employee is acting within the scope of employment when commuting to or from work if the employer compensates the employee for both travel time and travel expenses, thereby making the commute an incidental benefit to the employer that falls outside the ordinary 'going and coming' rule.
Facts:
- Frank Allen Herman was employed by Westinghouse Electric Company as an elevator constructor's helper.
- Herman's assigned job site was located 15 to 20 miles from Los Angeles City Hall, requiring a significant commute.
- Per his union contract, Westinghouse paid Herman for one and a half hours of round-trip travel time each day.
- Westinghouse also paid Herman $1.30 per day for his travel expenses, referred to as 'carfare'.
- Westinghouse did not exercise control over the method or route of transportation Herman used for his commute.
- While driving his car home from the job site, Herman struck and seriously injured Eugene C. Hinman, a police officer standing on a freeway median.
Procedural Posture:
- Eugene C. Hinman sued Westinghouse Electric Company in a state trial court for personal injuries.
- The City of Los Angeles intervened in the lawsuit to recover medical and pension costs paid to Hinman.
- The case was tried before a jury.
- The trial judge instructed the jury that whether the employee was in the scope of employment was a question of fact for them to decide.
- The jury returned a verdict in favor of the defendant, Westinghouse.
- The plaintiffs' motions for judgment notwithstanding the verdict were denied by the trial court.
- Plaintiffs Hinman and the City of Los Angeles, as appellants, appealed the judgment to the Supreme Court of California.
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Issue:
Does the 'going and coming' rule exempt an employer from vicarious liability for an employee's negligence when the employment contract requires the employer to compensate the employee for both travel time and travel expenses for a commute to a remote job site?
Opinions:
Majority - Peters, J.
No, the 'going and coming' rule does not exempt the employer from liability under these circumstances. The modern justification for respondeat superior is a policy-based allocation of risk, where the employer, who benefits from the enterprise, should bear the costs of the inevitable torts that arise from it. While the 'going and coming' rule generally holds that an employee's commute is outside the scope of employment, an exception applies when the journey provides a benefit to the employer beyond the mere arrival of the employee at work. By compensating the employee for both travel time and expenses, the employer has made the commute part of the workday for the mutual benefit of the parties. The employer benefits by being able to draw from a larger labor market for a remote site, and in doing so, it should be required to bear the risks inherent in that decision. Therefore, as a matter of law, Herman was acting within the scope of his employment at the time of the accident.
Analysis:
This decision significantly clarifies and narrows the 'going and coming' rule in California by establishing that payment for both travel time and expenses brings a commute within the scope of employment as a matter of law. It solidifies the modern 'enterprise liability' theory of vicarious liability, focusing on risk allocation and employer benefit rather than direct control over the employee's actions. The ruling shifts the financial risk of commuting accidents in such circumstances from the employee or injured third party to the employer, who is better able to absorb and distribute the cost through insurance and pricing. Future cases involving commuting accidents will scrutinize the employment contract to see if compensation for time, in addition to expenses, makes the employer liable.
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