Reported / Citable
Background
On a Monday morning in September 2022, Brittany Doremus, a palliative care physician employed by Southern California Permanente Medical Group (SCPMG), was driving to her office at the Woodland Hills Medical Center. She turned into a shopping center to drop off her children’s Halloween costumes at a dry cleaner. While turning, she allegedly cut across the path of Kai-Lin Chang, who was riding his bicycle on Valley Circle. Chang collided with her vehicle and suffered injuries requiring hospitalization.
Chang sued Doremus and SCPMG for negligence. He alleged SCPMG was vicariously liable under respondeat superior because Doremus was acting in the course of her employment at the time of the accident. SCPMG moved for summary judgment based on the going and coming rule, which generally exempts employers from liability for employee torts committed during commutes to and from work.
SCPMG submitted Doremus’s deposition testimony showing that she worked in her office on Mondays and Tuesdays, worked from home half-day on Wednesdays, worked at the medical center hospital on Thursdays and Fridays, and worked from home when on call. On the Monday in question, she was driving to her office. She did not recall participating in any work calls before the accident. The trial court granted summary judgment for SCPMG. Chang appealed, arguing that SCPMG had not shown Doremus was not working at the time of the accident and that her work-from-home arrangement converted her home into a second worksite.
The Court’s Holding
The Second District Court of Appeal, Division One, affirmed. The court held that SCPMG was entitled to summary judgment under the going and coming rule because Doremus was commuting to work, not acting within the course and scope of her employment.
On the burden of proof issue, the court rejected Chang’s argument that SCPMG had to negate every possibility that Doremus might have been working at the time of the accident. SCPMG met its initial burden by making a prima facie showing through Doremus’s deposition testimony that she was not engaged in work activities. The burden then shifted to Chang to provide contradictory evidence creating a triable issue. Chang did not present evidence that Doremus was actually using her employer-issued cell phone for work calls or texts at the time of the accident.
On the work-from-home issue, the court rejected the argument that an employer’s permission to work from home on certain days converts the employee’s home into a second worksite for all purposes. Doremus’s uncontradicted testimony established that on Mondays (the day of the accident), she did not work from home but instead drove to her office. Whatever the analytical implications might be on days when she actually worked from home and then traveled to the medical center, on this Monday she was simply commuting from her home to her office. The going and coming rule applied.
Key Takeaways
- The going and coming rule bars vicarious employer liability for employee torts committed while commuting to or from work, including detours for personal errands like dropping off dry cleaning.
- An employer moving for summary judgment under the going and coming rule need only make a prima facie showing that the employee was not working at the time of the accident; the burden then shifts to the plaintiff to identify triable issues.
- An employee’s permission to work from home on certain days does not categorically convert the employee’s home into a second worksite. The applicability of the rule depends on the specific facts of the day in question.
- The presence of an employer-issued cell phone alone does not create a triable issue about course and scope of employment unless there is evidence the phone was actually being used for work at the time of the accident.
- Plaintiffs seeking to defeat going and coming summary judgment motions must produce specific evidence (phone records, witness testimony, contemporaneous communications) showing actual work activity at the time of the accident.
Why It Matters
This decision is important for the application of the going and coming rule in California’s increasingly hybrid work environment. As more employees work some days from home and others at the office, plaintiffs have argued that traditional commuting analysis no longer applies. The opinion confirms that the rule continues to apply to ordinary office commutes even for employees with hybrid schedules.
For employer counsel defending against vicarious liability claims arising from employee accidents, the case provides useful guidance on how to structure summary judgment motions and what evidence is needed. For plaintiffs’ counsel, the opinion is a reminder that defeating going and coming summary judgment requires affirmative evidence of work activity at the time of the accident, not just speculation about what an employee might have been doing. For employers structuring hybrid work policies, the decision suggests that maintaining clear records of which days employees work where will help support the going and coming defense in commute-related accident cases.