Bussard v. Minimed, Inc.

California Court of Appeal · 2003 · Torts

TortsRespondeat superiorGoing-and-coming ruleVicarious liabilityrespondeat superiorgoing-and-coming ruleforeseeabilityinstrumentality of danger

Facts

Minimed had its facility sprayed overnight with pesticide to eliminate fleas. The next morning employee Irma Hernandez smelled the pesticide, became ill while working, told supervisors at noon that she wanted to go home, declined an offer to see the company doctor, and said she was well enough to drive. Shortly after leaving work, Hernandez rear-ended Bussard at a red light and told the responding officer she had felt dizzy and lightheaded before the accident. Bussard sued Minimed on a negligence theory, alleging Minimed was vicariously liable because Hernandez was acting within the course and scope of employment when driving home ill from workplace pesticide exposure.

Issue

Does the going-and-coming rule bar respondeat superior liability when an employee, made ill by pesticide exposure at work, causes a car accident while driving home? More specifically, can the employer be vicariously liable because the employee's workplace exposure made her an instrumentality of danger whose risk continued during the trip home?

Rule

Although employees ordinarily are outside the scope of employment during their commute under the going-and-coming rule, that rule does not apply when a risk arising from or related to the employment causes the employee to become an instrumentality of danger. The relevant foreseeability inquiry is not negligence foreseeability, but whether in the context of the enterprise the employee's conduct is not so unusual or startling that it would be unfair to allocate the loss to the employer as a cost of doing business. Foreseeability in this context requires no more than a causal connection between a work-related event and the employee's subsequent act causing injury, and the scope of employment follows the risk so long as it proximately causes injury.

🔒

See the holding & full analysis

Create a free KwikCourt account to unlock the rest of this brief — and practice the case.

The court's holding and reasoning
Doctrine tests, pitfalls & exam hypotheticals
10 practice questions + 4 AI-graded essays on this case

Free sample · practice this case

Test yourself

One of 10 multiple-choice questions for this case. Pick an answer to see why.

In Phoenix, Dana Pike worked a full morning in a warehouse after a refrigerant leak left chemical fumes lingering in her work area. She became nauseated and dizzy, left early, and ten minutes into her drive home drifted into another lane and hit Omar Velez's car.

If Omar sues Dana's employer on a respondeat superior theory, which is the strongest argument against applying the going-and-coming rule?

Explanation. The majority held that the going-and-coming rule does not bar vicarious liability when a risk arising from employment causes the employee to become an instrumentality of danger and proximately causes injury during the trip home. The key is the causal connection between the work-created condition and the later tort, not continued pay, the employee's future intent to benefit the employer, or employer control. (Derived from Bussard v. Minimed, Inc. (2003).)