When will an employee be considered to be acting within the scope of their employment for the purposes of the respondeat superior doctrine?

The Fifth Appellate District recently summarized the principles of respondeat superior in Moreno v. Visser Ranch, Inc. (2018) 30 Cal.App.5th 568, 241 Cal.Rptr.3d 678 (Visser Ranch): "The doctrine of respondeat superior holds an employer liable for torts of its employees committed within the scope of their employment. (Halliburton Energy Services, Inc. v. Department of Transportation (2013) 220 Cal.App.4th 87, 93–94, 162 Cal.Rptr.3d 752 (Halliburton); Rest.3d Agency, § 7.07, subd. (1); Rest.2d Agency, § 219, subd. (1); see Civ. Code, § 2338 [‘principal is responsible to third persons for the negligence of his agent in the transaction of the business of the agency’].) A plaintiff suing an employer under the doctrine must prove the person who committed the tort was acting within the scope of his or her employment. (Halliburton, supra, at p. 94, 162 Cal.Rptr.3d 752.)" (Visser Ranch, at pp. 575–576, 241 Cal.Rptr.3d 678.)

Visser Ranch identified two tests California courts have used "for scope of employment under the respondeat superior doctrine." (Visser Ranch, supra, 30 Cal.App.5th at p. 576, 241 Cal.Rptr.3d 678.) "Under one test, the employer is liable if the activities that caused the employee to become an instrument of danger to others were undertaken with the employer’s permission and were of some benefit to the employer, or in the absence of proof of benefit, the activities constituted a customary incident of employment. (Purton v. Marriott Internat., Inc . (2013) 218 Cal.App.4th 499, 509, 159 Cal.Rptr.3d 912 (Purton).)" (Id. at p. 577, 241 Cal.Rptr.3d 678.) The second test, which was articulated in Halliburton, provides "an employee’s conduct is within the scope of his or her employment if (1) the act performed was either required or incident to his duties or (2) the employee’s misconduct could be reasonably foreseen by the employer in any event. (

[261 Cal.Rptr.3d 811]

Halliburton, supra, 220 Cal.App.4th at p. 94, 162 Cal.Rptr.3d 752.) In this test, foreseeability 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 the costs of the employer’s business." (Visser Ranch, at p. 577, 241 Cal.Rptr.3d 678.)

Apart from these two tests, California has also employed the " ‘going and coming’ rule" to determine whether an employee is acting within the scope of his or her employment when travelling to or from work. (Visser Ranch, supra, 30 Cal.App.5th at p.577.) "[T]his principle holds that an employee going to or from work ordinarily is considered outside the scope of

[48 Cal.App.5th 578]

employment and, therefore, the employer is not liable for torts committed during the commute." (Ibid.) " ‘A well-known exception to the going-and-coming rule arises where the use of the car gives some incidental benefit to the employer.’ " (Lobo v. Tamco (2010) 182 Cal.App.4th 297, 301, 105 Cal.Rptr.3d 718, italics omitted (Lobo).)

One exception to the going and coming rule is the special errand rule, which provides that an employee is within the scope of his employment while performing an errand either as part of his regular duties or at the specific order or request of his employer. (Boynton v. McKales (1956) 139 Cal.App.2d 777, 789, 294 P.2d 733 (Boynton).) "[T]he employee is considered to be in the scope of his employment from the time he starts on the errand until he has returned or until he deviates therefrom for personal reasons." (Ibid.) The employer is liable for the employee's torts in the course of a special errand because the errand benefits the employer. (Ibid.) It is not necessary that the employee is directly engaged in his job duties; included also are errands that incidentally or indirectly benefit the employer. (Ibid.) It is

[16 Cal.App.5th 453]

essential, however, that the errand be either part of the employee's regular duties or undertaken at the specific request of the employer. (Ibid.)

Plaintiffs seek damages pursuant to three causes of action against Ong and Genentech: two in the form of negligence claims (for motor vehicle negligence and general negligence, respectively), and one in the form of a survivorship action incorporating the negligence allegations. Plaintiffs allege they suffered injuries and sustained damages as a result of the negligence of defendant Ong when his vehicle struck the vehicle of Marisol Morales, resulting in her injury and death. It is undisputed that Ong was the driver and owner of the vehicle that hit the vehicle in which Marisol Morales was a passenger. Accordingly, the only theory of Genentech's liability as to all three causes of action is the doctrine of respondeat superior, as Ong's employer.

[...]

In this case, like the employees in Vivion and Munyon, Ong, on his own, for his own reasons in the pre-dawn hours of December 13, chose to drive to Genentech. The record shows no evidence that anyone

[224 Cal.Rptr.3d 328]

from Genentech requested that Ong drive to Genentech in the dead of night. Ong testified in

[16 Cal.App.5th 456]

his deposition that he did not expect to be paid for the trip. And in contrast to Jeewarat, there was no evidence Genentech authorized Ong's trip by paying his travel expenses.

[...]

In its order granting summary judgment for Genentech, the trial court observed that even in workers' compensation cases, which embrace the more lenient standard of " ‘arising out of and occurring in the course of employment’ " (see Munyon, supra, 136 Cal.App.3d at pp. 701, 702, 186 Cal.Rptr. 424), an employee's decision to take work home or to drive to work at an unusual time does not bring the trip within the scope of employment. Plaintiffs cite several workers' compensation cases in order to distinguish them from the facts here, but as noted, workers' compensation cases are not controlling precedent in tort cases. (Anderson, supra, 14 Cal.App.4th at p. 259, 17 Cal.Rptr.2d 534.) Even accepting as true plaintiffs' assertion that Ong took it upon himself to drive to Genentech on his day off to respond to a hiring crisis, under Vivion, an employee's unilateral decision to commute to work after hours does not bring the trip within the special errand rule. (Vivion, supra, 200 Cal.App.2d at p. 606, 19 Cal.Rptr. 602.) We reject the argument that Ong could order himself to perform a special errand on Genentech's behalf.

[...]

In contrast to Boynton, the facts in this case do not create a reasonable inference that Genentech expected Ong to drive to work on the early morning

[16 Cal.App.5th 458]

of December 13, 2012, to respond to a hiring crisis. In Boynton, the employee received an invitation to attend a company banquet, and the practice of honoring employees for their service created an inference that attendance was not only invited, but expected. (Boynton, supra, 139 Cal.App.2d at pp. 790–791, 294 P.2d 733.) Here, the day before the accident, Ong was copied on an email from Tumaneng, and received automated emails from PRO Unlimited, letting him know that one of the new hires had fallen through and further interviews were necessary. It is not clear whether Ong read these emails before the collision, but even assuming he did, and assuming he decided to drive to Genentech on the morning of December 13, 2012 to prepare for those interviews, there is still no evidence that anyone at Genentech requested or expected that Ong would drive to work that morning.

Moreover, even if it could be inferred that Ong read the emails before driving to Genentech and those emails constituted a request that Ong continue to assist with the hiring process, it is clear they did not require Ong to come in at a specific day or time. Even though Tognazzini involved fingerprinting ordered by the state and not by the employer, it was also germane to the court's decision that the employee had full control over when and where she completed the requirement, and over her

[224 Cal.Rptr.3d 330]

means of transportation. (Tognazzini, supra, 86 Cal.App.4th at pp. 1058–1059, 103 Cal.Rptr.2d 790.) On this record, even if the December 12 emails to Ong could be interpreted as a request to continue work on the overall assignment of hiring, they cannot be interpreted as a request that Ong drive to Genentech on December 13, or on any of his days off.

[...]

Here, the evidence does not support an inference that Ong's regular duties of hiring at Genentech included driving to work on his day off to review resumes. Unlike Harvey, where the employer regularly expected the employee to haul materials and recruit employees as part of his long-distance commute, there is no evidence Genentech ever expected Ong to come in outside of his normal working hours to assist with hiring. The evidence plaintiffs introduced to the contrary included that Ong sometimes worked overtime, and did so on December 10, 2012, to help Tumaneng complete the interviews scheduled that day. Plaintiffs also point to evidence that Ong attended once-monthly off-shift leadership meetings and occasionally communicated with coworkers on his days off by text or by phone. Evidence that an employee sometimes worked overtime, attended scheduled work meetings, and communicated with coworkers outside of working hours cannot support a reasonable

[224 Cal.Rptr.3d 331]

inference that he was regularly expected to come into the office on his days off to review resumes.

Finally, plaintiffs rely on Jeewarat, supra, 177 Cal.App.4th at p. 437, 98 Cal.Rptr.3d 837, contending that, like the vice-president whose regular duties were to prevent internet piracy, Ong's regular duties included hiring, and he was carrying out those duties at the time of the collision. They further argue that the Jeewarat court found that driving home from the airport was part of the vice-president's regular duties, without discussing whether the vice-president had ever driven a car as part of his job. The Jeewarat court, as we note above, did not base its holding on a theory that driving home from the airport was part of the vice-president's regular duties. (Jeewarat, supra, 177 Cal.App.4th at pp. 436–437, 98 Cal.Rptr.3d 837.) Instead, the court concluded that the special errand doctrine may be applied to a business trip, and that Warner's payment of the vice-president's travel expenses could support a reasonable inference that Warner authorized the trip and expected to derive a benefit from the vice-president's attendance. (Ibid.) Jeewarat 's reasoning cannot support an

[16 Cal.App.5th 460]

argument that Ong was engaged in his regular duties at the time of the accident. Since plaintiffs put forth no evidence that Ong had even once before made a special trip to Genentech to review resumes or perform any task connected to hiring, it cannot be inferred that such a trip was part of his regular duties in hiring.

However, "exceptions will be made to the `going and coming' rule where the trip involves an incidental benefit to the employer, not common to

[177 Cal.App.4th 436]

commute trips by ordinary members of the work force." (Hinman v. Westinghouse Elec. Co. (1970) 2 Cal.3d 956, 962 [88 Cal.Rptr. 188, 471 P.2d 988].) When an employee is engaged in a "special errand" or a "special mission" for the employer it will negate the "going and coming rule." (Ducey v. Argo Sales Co. (1979) 25 Cal.3d 707, 722 [159 Cal.Rptr. 835, 602 P.2d 755]; Trejo v. Maciel (1966) 239 Cal.App.2d 487, 495 [48 Cal.Rptr. 765]; Sullivan v. Thompson (1939) 30 Cal.App.2d 675, 677-678 [87 P.2d 62].) An employee "`coming from his home or returning to it on a special errand either as part of his regular duties or at a specific order or request of his employer ... is considered to be in the scope of his employment from the time that he starts on the errand until he has returned or until he deviates therefrom for personal reasons.'" (Felix v. Asai (1987) 192 Cal.App.3d 926, 931 [237 Cal.Rptr. 718], quoting Boynton v. McKales (1956) 139 Cal.App.2d 777, 789 [294 P.2d 733]; see also Trejo v. Maciel, supra, at p. 495 [when on a special errand the employee is in the course and scope of employment for the entire trip; it does not cease after the task has been accomplished].) The employer is "liable for torts committed by its employee while traveling to accomplish a special errand because the errand benefits the employer. [Citation.]" (Tognazzini v. San Luis Coastal Unified School Dist. (2001) 86 Cal.App.4th 1053, 1057 [103 Cal.Rptr.2d 790].)

(8) Plaintiffs contend an employee's attendance at an out-of-town business conference authorized and paid for by the employer may be a special errand for the benefit of the employer under the special errand doctrine. Warner asserts that the special errand doctrine does not apply to commercial travel. We conclude that a special errand may include commercial travel such as the business trip in this case.

[177 Cal.App.4th 437]

The evidence that Warner paid for Brandon's airfare, hotel accommodations, and airport parking leads to a reasonable inference that Warner expected to derive a benefit from Brandon's attendance at the conference. The conference was led by an anti-piracy vendor which Warner utilized. It is reasonable to infer that Brandon would use the information he learned at the conference in his position as vice-president of Warner's anti-piracy Internet operations.

In Kephart v. Genuity, Inc. (2006) 136 Cal.App.4th 280, 284 [38 Cal.Rptr.3d 845], the appellate court assumed that a business trip could be a special errand. The defendant's employee was driving to the airport for a business trip when he forced a car off the road, injuring the plaintiffs. The jury returned a verdict in favor of the defendant and the plaintiffs appealed, contending that the employee was in the course and scope of his employment as a matter of law. (Ibid.) The court stated that "[p]rior to the incident with plaintiffs, [the employee] left his home to do errands, to meet his family for dinner, and then to go to the airport for his business trip. He did not intend to return home before going to the airport, and when he got onto Interstate 205, [he] was on the same route that he would have taken had he been going straight to the airport. In this sense, the place in which the incident occurred was consistent with his being on a special errand business trip." (Id. at p. 294.) However, the court concluded that based on the evidence, the jury reasonably could find the employee's conduct at the time of this incident was motivated entirely by personal malice and did not occur within the course and scope of his employment. (Ibid.)

Warner makes a meritless argument to defeat liability based on workers' compensation law. Under workers' compensation law, "the commercial traveler's doctrine" is an exception to the going and coming rule which provides that an employee whose work entails travel away from the employer's premises is within the course and scope of employment continuously during the trip. (IBM Corp. v. Workers' Comp. Appeals Bd. (1978) 77 Cal.App.3d 279, 282 [142 Cal.Rptr. 543].) However, in Sunderland v. Lockheed Martin Aeronautical Systems Support Co. (2005) 130 Cal.App.4th 1, 8 [29 Cal.Rptr.3d 665] (Sunderland), the appellate court held that the commercial traveler's doctrine does not apply to third party tort cases, and therefore, the employer in that case could not be held vicariously liable for a tort that occurred on a business trip when the employee was not acting within the course and scope of his employment. In essence, Warner contends the holding that an employee is not continuously within the course and scope of employment during a business trip for purposes of tort liability precludes application of the special errand doctrine, and therefore, the going and coming rule applies in this case. This is incorrect.

[177 Cal.App.4th 438]

In Sunderland, an employee was relocated to California for an assignment of several months. (Sunderland, supra, 130 Cal.App.4th at p. 6.) Upon learning that his trip was being shortened, he left his apartment and drove to say goodbye to his father-in-law. After leaving his father-in-law's residence, the employee entered a fast-food drive-through lane to get dinner before heading back to his apartment, but collided with the rear of the plaintiff's vehicle. (Ibid.) The plaintiff argued that the commercial traveler rule should be applied to expand the definition of the scope of the employment required for respondeat superior liability, but the appellate court held that "[n]o authority supports application of the commercial traveler rule to create respondeat superior liability." (Id. at p. 8.)

The Sunderland court held only that the commercial traveler's doctrine does not apply in the context of third party torts to impose liability on employers for torts committed by employees on business trips regardless of whether the employee is acting within the course and scope of employment at the time of the accident. The court did not consider whether the traditional tort doctrine concerning special errands applied to business travel. Moreover, it is clear that the employer in Sunderland was not vicariously liable under the special errand doctrine, because the employee was engaged in a purely personal activity at the time of the accident and not acting within the course and scope of his employment. The holding in Sunderland has no bearing on whether the special errand doctrine applies in tort cases involving business travel.

Commute Route

Warner contends that even if Brandon's business trip could be considered a special errand, the errand concluded when Brandon drove past his office and resumed his regular commute route at approximately his usual time. We disagree.

(9) The undisputed evidence was that at the time of the accident, Brandon was traveling from the airport to his home, with no intention of going to his office. Brandon's route from the airport coincidentally passed his office, which happened to be on his return route home. As stated above, a special errand continues for the entirety of the trip. It would be nonsensical to base the employer's liability on whether the employee coincidentally chose a route that passed the workplace. Brandon intended to return to his home, and there were no intervening personal deviations to remove him from the course and scope of employment. Therefore, the special errand continued until such time as he arrived at his destination.

(10) Based on our holding that the special errand doctrine may be applied to the business trip in this case, we conclude Warner failed to show there

[177 Cal.App.4th 439]

were no triable issues of material fact as to whether Brandon was acting within the course and scope of his employment at the time of the accident. We need not address plaintiffs' additional argument that there is a triable issue of fact as to whether Brandon was traveling from work to work, based on his use of his home as an office. Warner's motion for summary judgment must be denied.

Normally the going and coming rule applies in cases where an employee ordinarily works at a particular location and the job duties do not ordinarily include driving on the job. (

[8 Cal.App.5th 1107]

Huntsinger v. Glass Containers Corp. (1972) 22 Cal.App.3d 803, 809-810, 99 Cal.Rptr. 666 (Huntsinger ); Hinojosa v. Workmen's Comp. Appeals Bd. (1972) 8 Cal.3d 150, 157, 104 Cal.Rptr. 456, 501 P.2d 1176 (Hinojosa ).)¹ On the other hand, if the employer expressly or impliedly makes the commute a part of the work day, or derives an incidental benefit from a particular employee's commute beyond that of the other members of the work force, then the employer's vicarious liability will continue during the course of the commute. (Id. at pp. 961-962, 88 Cal.Rptr. 188, 471 P.2d 988.) In order for liability to arise for the use of a personal car, "the benefit must be sufficient enough to justify making the employer responsible for the risks inherent in the travel." (Blackman, supra, 233 Cal.App.3d at p. 604, 284 Cal.Rptr. 491.)

As explained in Moradi and Smith v. Workmen's Comp. App. Bd. (1968) 69 Cal.2d 814, 73 Cal.Rptr. 253, 447 P.2d 365 (Smith): " ‘Under the well established going and coming rule, an employee does not pursue the course of his employment when he is on his way to or from work.... In a number of cases we have established exceptions to this rule, such as those in which the employer defrayed travel expenses ... and those in which the employee engaged in a special errand for his employer.’" (Moradi, supra, 219 Cal.App.4th at p. 895, 162 Cal.Rptr.3d 280,

[214 Cal.Rptr.3d 459]

quoting Smith, at pp. 815-816, 818, 820, 73 Cal.Rptr. 253, 447 P.2d 365.) For instance, where an " ‘accident occurred when the employee drove his car to the employer's premises pursuant to the employer's requirement that the employee furnish his own car, we hold that the so-called going and coming rule does not bar coverage.’ [Citation.] ‘[T]he employer clearly benefited from [the employee's] bringing the car to work. Indeed, an employer must be conclusively presumed to benefit from employee action reasonably directed towards the execution of the employer's orders or requirements. An employer cannot request or accept the benefit of an employee's services and concomitantly contend that he is not "performing service growing out of and incidental to his employment." ’ [Citation.]" (Moradi, at p. 895, 162 Cal.Rptr.3d 280, quoting Smith, at pp. 815-816, 818, 820, 73 Cal.Rptr. 253, 447 P.2d 365.)

"Generally, whether an employee is within the scope of employment is a question of fact; however, when the facts of a case are undisputed and conflicting inferences may not be drawn from those facts, whether an employee is acting within the scope of employment is a question of law. [Citation.] [¶] Exceptions are made to the going-and-coming rule when the employee's trip involves an incidental benefit to the employer, not common to commute trips by ordinary members of the work force. [Citation.]" (Blackman, supra, 233 Cal.App.3d at p. 602, 284 Cal.Rptr. 491.)

The work-related, special risk exception to the going and coming rule "applies when an employee endangers others with a risk arising from or

[8 Cal.App.5th 1113]

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." ’ " (Bussard v. Minimed, Inc. (2003) 105 Cal.App.4th 798, 804, 129 Cal.Rptr.2d 675 (Bussard).) The foreseeability test " ‘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.’ [Citation.]" (Id. at pp. 804-805, 129 Cal.Rptr.2d 675.)

Courts have applied this foreseeability test when considering the special risk exception, where employees have caused car accidents on the way home after drinking alcohol at work. Courts have found a sufficient link between drinking and car accidents, concluding such collisions are neither startling nor unusual, and thus foreseeable under respondeat superior. (Bussard, supra, 105 Cal.App.4th at p. 805, 129 Cal.Rptr.2d 675; see Childers v. Shasta Livestock Auction Yard, Inc. (1987) 190 Cal.App.3d 792, 803-804, 235 Cal.Rptr. 641 (Childers ); Harris v. Trojan Fireworks Co. (1981) 120 Cal.App.3d 157, 164, 174 Cal.Rptr. 452.)

Respondeat superior liability under the special risk exception " ‘is properly applied where an employee undertakes activities within his or her scope of employment that cause the employee to become an instrumentality of danger to others even where the danger may manifest itself at times and locations remote from the ordinary workplace. ’ " (

[214 Cal.Rptr.3d 464]

Bussard, supra, 105 Cal.App.4th at p. 805-806, 129 Cal.Rptr.2d 675, quoting Childers, supra, 190 Cal.App.3d at pp. 804-805, 235 Cal.Rptr. 641.) Where the risk of injury is created by the enterprise, within the scope of the employee's employment, and it proximately causes the injury, the cost of injury is imposed upon the enterprise. (Bussard, at p. 805, 129 Cal.Rptr.2d 675; Childers, at p. 805, 235 Cal.Rptr. 641.)

Significantly, the imposition of respondeat superior liability is not dependent on the employer's undertaking any act or upon any fault by the employer. (Perez v. Van Groningen & Sons, Inc. (1986) 41 Cal.3d 962, 967, 227 Cal.Rptr. 106, 719 P.2d 676 (Perez).) Rather, an employer may be vicariously liable for an employee's tort if the employee's act was an “ ‘outgrowth’ ” of his employment, “ ‘ “inherent in the working environment,” ’ ” “ ‘ “typical of or broadly incidental to” ’ ” the employer's business, or, in a general way, foreseeable from the employee's duties. (Lisa M. v. Henry Mayo Newhall Memorial Hospital (1995) 12 Cal.4th 291, 298–299, 48 Cal.Rptr.2d 510, 907 P.2d 358.) Foreseeability in the context of respondeat superior liability must be distinguished from foreseeability as a test for negligence. (Farmers, supra, 11 Cal.4th at p. 1004, 47 Cal.Rptr.2d 478, 906 P.2d 440.) “ ‘ “[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.’ ” (Ibid. italics deleted.)

We now apply the McCarty criteria to the facts to determine whether a reasonable trier of fact could conclude that Landri was acting within the scope of his employment when he became intoxicated at the party. Under McCarty, respondeat superior liability attaches if the activities “that cause[d] the employee to become an instrumentality of danger to others” were undertaken with the employer's permission and were of some benefit to the employer or, in the absence of proof of benefit, the activities constituted a customary incident of employment. (Childers, supra, 190 Cal.App.3d at p. 805, 235 Cal.Rptr. 641.)

In this case, the evidence shows that the Hotel provided alcohol and permitted the consumption of alcohol brought to the party by Landri. While Marriott initially planned to serve only beer and wine at the party, Hanson served guests Jack Daniel's from the Hotel's liquor stock and actually refilled Landri's flask from that bottle of Jack Daniel's. Hanson also had a bottle of Frenet Branca under the bar from the Hotel's liquor room that she shared with certain people. Emma saw Landri pouring from a flask and shared Jack Daniel's with Landri shortly after Landri arrived at the party. Emma also shared a shot of alcohol with another employee. Similarly, Hanson shared shots with Landri.

Additionally, the evidence shows

[218 Cal.App.4th 510]

that the party and drinking of alcoholic beverages were not only of a conceivable benefit to Marriott, but were also a customary incident to the employment relationship. Emma testified that Marriott held the party as a “thank you” for its employees. Hanson similarly testified that the purpose of the party was “[c]elebration, employee appreciation, holiday spirit, [and] team building.” Thus, a trier of fact could conclude that the party and drinking of alcoholic beverages benefitted Marriott by improving employee morale and furthering employer-employee relations.

The evidence also supports a conclusion that the drinking of alcoholic beverages by employees at Marriott was a customary incident to the employment relationship. In general, the evidence suggests that Marriott impliedly permitted employees to consume alcohol while on the job. Hanson stated that employees would finish alcohol left over from parties after their shift, taste new drinks or have drinks purchased for them; however, Emma or Fraher never commented when this happened. At the party, employees had Marriott's express permission to consume beer and wine, with the evidence suggesting that Marriott did not follow its plan to limit consumption of alcohol to two drinks per person. Evidence that Marriott managers consumed hard alcohol with employees at the party and that a Marriott manager served hard alcohol to employees suggests that employees had Marriott's implied permission to consume hard alcohol at the party. Hanson also testified that “historically there has been a lot of drinking and not a lot of control at these types of [employee] parties.”

Based on this evidence, a reasonable trier of fact could conclude that Landri was acting within the scope of his employment while ingesting alcoholic beverages at the party.

The going and coming rule is a rule of nonliability to an employer for the negligent acts of its employees while going and coming to work under the rationale that, absent certain exceptions, an employee is not deemed to be acting within the scope of employment while traveling to and from the workplace. (Ducey v. Argo Sales Co. (1979) 25 Cal.3d 707, 722, 159 Cal.Rptr. 835, 602 P.2d 755.) As we explained above, a trier of fact could conclude that the proximate cause of the accident, Landri's intoxication, occurred within the scope of Landri's employment. Because a jury could find the proximate cause of the accident occurred at the party, before Landri even attempted to drive, the going and coming rule is not implicated and amounts to an “analytical distraction.” (Bussard, supra, 105 Cal.App.4th at p. 806, 129 Cal.Rptr.2d 675.) Stated differently, we focus on the act on which vicarious liability is based and not on when the act results in injury.

[218 Cal.App.4th 511]

Assuming a trier of fact concludes that the proximate cause of the accident occurred within the scope of employment, there is no reasonable justification for cutting off an employer's potential liability as a matter of law simply because an employee reaches home. As acknowledged by the McCarty, Childers and Bussard courts, the employer's potential liability under these circumstances continues until the risk that was created within the scope of the employee's employment dissipates. (McCarty, supra, 12 Cal.3d at p. 681, 117 Cal.Rptr. 65, 527 P.2d 617 [“[I]f the proximate cause is of industrial origin, the time and place of injury or death even if foreign to the premises does not serve to nullify recovery.”]; Childers, supra, 190 Cal.App.3d at p. 805, 235 Cal.Rptr. 641 [“[T]he scope of employment must follow the risk so long as it acts proximately to cause injury.”]; Bussard, supra, 105 Cal.App.4th at p. 805, 129 Cal.Rptr.2d 675 [When “imposing liability for an after-hours accident away from the jobsite, liability follows the employee until the work-spawned risk dissipates.”].)

[...]

We concur with the observations of the Childers's court that alcohol abuse is foreseeable and extremely dangerous and innocent people are injured or killed “as a consequence of the negligence of those who have consumed alcohol at events that otherwise benefit a commercial enterprise.... We think that if a commercial enterprise chooses to allow its employees to consume alcoholic beverages for the benefit of the enterprise, fairness requires that the enterprise should bear the burden of injuries proximately caused by the employees' consumption.” (Childers, supra, 190 Cal.App.3d at p. 810, 235 Cal.Rptr. 641.)

Notably, our conclusion that the trial court erred in granting summary judgment in favor of Marriott does not impose respondeat superior liability on Marriott, it merely results in this question being resolved by the trier of fact. Necessarily, the trier of fact will need to determine, based on the totality

[218 Cal.App.4th 512]

of the evidence presented, whether Landri's act of leaving his home shortly after arriving from the party to drive a fellow employee to that employee's home was “ ‘so unusual or startling’ ” so as to render the car accident unforeseeable. (Perez, supra, 41 Cal.3d at p. 968, 227 Cal.Rptr. 106, 719 P.2d 676.)