CACI 3726 Going-and-Coming Rule—Business-Errand Exception

California Civil Jury Instructions CACI

3726 Going-and-Coming Rule—Business-Errand Exception

In general, an employee is not acting within the scope of employment while traveling to and from the workplace. But if the employee, while commuting, is on an errand for the employer, then the employee’s conduct is within the scope of the employee’s employment from the time the employee starts on the errand until the employee returns from the errand or until the employee completely abandons the errand for personal reasons.

In determining whether an employee has completely abandoned a business errand for personal reasons, you may consider the following:

a.The intent of the employee;

b.The nature, time, and place of the employee’s conduct;

c.The work the employee was hired to do;

d.The incidental acts the employer should reasonably have expected the employee to do;

e.The amount of freedom allowed the employee in performing [his/her/nonbinary pronoun] duties; and

f.The amount of time consumed in the personal activity;

g.[specify other factors, if any].

New September 2003; Revised June 2014, June 2017, Revised and Renumbered from CACI No. 3724 November 2017; Revised May 2020

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Directions for Use

This instruction sets forth the business errand exception to the going-and-coming rule, sometimes called the “special errand” or “special mission” exception. (Sumrall v. Modern Alloys, Inc. (2017) 10 Cal.App.5th 961, 968, fn. 1 [216 Cal.Rptr.3d 848]; see Pierson v. Helmerich & Payne Internat. Drilling Co. (2016) 4 Cal.App.5th 608, 632–633, fn.6 [209 Cal.Rptr.3d 222] [citing this instruction].) It may be given with CACI No. 3720, Scope of Employment.

Under the going-and-coming rule, commute time is not within the scope of employment. However, if the employee is engaged in a “special errand” or a “special mission” for the employer while commuting, it will negate the going-and-coming rule and put the employee within the scope of employment. (Jeewarat v. Warner Brothers Entertainment, Inc. (2009) 177 Cal.App.4th 427, 435–436 [98 Cal.Rptr.3d 837].)

Scope of employment ends once the employee abandons or substantially deviates from the special errand. The second paragraph sets forth factors that the jury may consider in determining whether there has been abandonment of a business errand. (See Moradi v. Marsh USA, Inc. (2013) 219 Cal.App.4th 886, 907 [162 Cal.Rptr.3d 280] [opinion may be read to suggest that for the business-errand exception, CACI No. 3723, Substantial Deviation, should not be given].)

Sources and Authority

“ ‘An offshoot of the doctrine of respondeat superior is the so-called “going and coming rule.” Under this rule, an employee is not regarded as acting within the scope of employment while going to or coming from the workplace. … This is based on the concept that the employment relationship is suspended from the time the employee leaves work until he or she returns, since the employee is not ordinarily rendering services to the employer while traveling. …’ ” (Jeewarat, supra, 177 Cal.App.4th at p. 435.)

“ ‘The special-errand exception to the going-and-coming rule is stated as follows: “If the employee is not simply on his way from his home to his normal place of work or returning from said place to his home for his own purpose, but is 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, the employee 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.” ’ ” (Moradi, supra, 219 Cal.App.4th at p. 906, original italics.)

“When an employee is engaged in a ‘special errand’ or a ‘special mission’ for the employer it will negate the ‘going and coming rule.’ … The employer is ‘liable for torts committed by its employee while traveling to accomplish a special errand because the errand benefits the employer. …’ ” (Jeewarat, supra, 177 Cal.App.4th at p. 436, internal citations omitted.)

“The term ‘special errand’ is something of a misnomer because it implies that the employer must make a specific request for a particular errand. However, the ‘special errand’ can also be part of the employee’s regular duties. Thus, we have chosen to use the term ‘business errand’ throughout this opinion, as it is more precise and descriptive.” (Sumrall, supra, 10 Cal.App.5th at p. 968 fn.1, internal citation omitted.)

“[T]he jury’s instruction on the business errand exception explains it concisely: … .” (Sumrall, supra, 10 Cal.App.5th at p. 969, quoting this instruction.)

“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. It is essential, however, that the errand be either part of the employee’s regular duties or undertaken at the specific request of the employer.” (Morales-Simental v. Genentech, Inc. (2017) 16 Cal.App.5th 445, 452–453 [224 Cal.Rptr.3d 319], internal citation omitted.)

“[T]he mere fact that a trip may be related to an employee’s job does not impose liability on the employer. … [T]o bring an employee’s trip within the special errand exception, the employer must request or at least expect it of the employee.” (Morales-Simentalsupra, 16 Cal.App.5th at p. 455, internal citation omitted.)

“[Plaintiffs] assert that [employee], as a supervisorial employee tasked with hiring, had authority to act on [employer]’s behalf and, in essence, request himself to complete a special errand connected to that task. This argument finds no support in the extensive body of going and coming case law, and we decline plaintiffs’ invitation to expand the special errand exception in the manner they suggest. What they propose is an invitation to self-serving pretense by anyone with a plausible claim to supervisorial authority.” (Morales-Simentalsupra, 16 Cal.App.5th at p. 456.)

“[I]n determining whether an employee has completely abandoned pursuit of a business errand for pursuit of a personal objective, a variety of relevant circumstances should be considered and weighed. Such factors may include [(1)] the intent of the employee, [(2)] the nature, time and place of the employee’s conduct, [(3)] the work the employee was hired to do, [(4)] the incidental acts the employer should reasonably have expected the employee to do, [(5)] the amount of freedom allowed the employee in performing his duties, and [(6)] the amount of time consumed in the personal activity. … While the question of whether an employee has departed from his special errand is normally one of fact for the jury, where the evidence clearly shows a complete abandonment, the court may make the determination that the employee is outside the scope of his employment as a matter of law.” (Moradi, supra, 219 Cal.App.4th at p. 907, original italics.)

“Several general examples of the special-errand exception appear in the cases. One would be where an employee goes on a business errand for his employer leaving from his workplace and returning to his workplace. Generally, the employee is acting within the scope of his employment while traveling to the location of the errand and returning to his place of work. The exception also may be applicable to the employee who is called to work to perform a special task for the employer at an irregular time. The employee is within the scope of his employment during the entire trip from his home to work and back to his home. The exception is further applicable where the employer asks an employee to perform a special errand after the employee leaves work but before going home. In this case, as in the other examples, the employee is normally within the scope of his employment while traveling to the special errand and while traveling home from the special errand.” (Felix v. Asai (1987) 192 Cal.App.3d 926, 931–932 [237 Cal.Rptr. 718], internal citations omitted.)

“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. [Defendant] 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.” (Jeewarat, supra, 177 Cal.App.4th at p. 436.)

“An employee who has gone upon a special errand does not cease to be acting in the course of his employment upon his accomplishment of the task for which he was sent. He is in the course of his employment during the entire trip.” (Trejo v. Maciel (1966) 239 Cal.App.2d 487, 495 [48 Cal.Rptr. 765].)

“Whether the transit is part of the employment relationship tends to be a more subtle issue than whether the transit was between home and work. … ‘These are the extraordinary transits that vary from the norm because the employer requires a special, different transit, means of transit, or use of a car, for some particular reason of his own. When the employer gains that kind of a particular advantage, the job does more than call for routine transport to it; it plays a different role, bestowing a special benefit upon the employer by reason of the extraordinary circumstances. The employer’s special request, his imposition of an unusual condition, removes the transit from the employee’s choice or convenience and places it within the ambit of the employer’s choice or convenience, restoring the employer-employee relationship.’ ” (Zhu v. Workers’ Comp. Appeals Bd. (2017) 12 Cal.App.5th 1031, 1038–1039 [219 Cal.Rptr.3d 630].)

“[W]here an employee is required by the employment to work at both the employer’s premises and at home, he is in the course of employment while traveling between the employer’s premises and home.” (Zhusupra, 12 Cal.App.5th at p. 1040.)

Secondary Sources

3 Witkin, Summary of California Law (11th ed. 2017) Agency and Employment, §§ 192–195
Finley, California Summary Judgment and Related Termination Motions § 1:1 et seq. (The Rutter Group)
2 Levy et al., California Torts, Ch. 20, Motor Vehicles, § 20.42[3] (Matthew Bender)
2 California Employment Law, Ch. 30, Employers’ Tort Liability to Third Parties for Conduct of Employees, § 30.05 (Matthew Bender)
21 California Forms of Pleading and Practice, Ch. 248, Employer’s Liability for Employee’s Torts, §§ 248.11, 248.16 (Matthew Bender)
37 California Forms of Pleading and Practice, Ch. 427, Principal and Agent, § 427.22 (Matthew Bender)
10 California Points and Authorities, Ch. 100A, Employer and Employee: Respondeat Superior, § 100A.28 et seq. (Matthew Bender)
California Civil Practice: Torts § 3:10 (Thomson Reuters)