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Going and Coming Rule and Traveling Employee

Transcript:

Hi, I’m Indiana personal injury attorney David Holub.

Last week we had a question from a caller rear-ended by a driver who was on his way to work at a construction site.

The caller asked, “the guy who hit me was in his private car and had no insurance, but the construction company he works for has insurance. Can his employer be held responsible for the crash?”

Well, the answer on this one is … maybe.

Indiana applies the doctrine of respondeat superior.

The doctrine means that an employer can be held responsible for an employee’s wrongful acts when the employee’s actions are within the scope of their employment.

For an employee’s act to fall ‘within the scope of employment,’ the injury-causing action must be:

  • incidental to the conduct authorized by the employer, or,
  • it must, to an appreciable extent, further the employer’s business.

Whether an employee’s driving actions fall within the scope of employment is typically a question of fact to be determined by a jury.

Indiana generally follows the principle that an employee on his way to work is not normally within the scope of his employment. This is called the going-and-coming rule.

But, there are exceptions to this rule. One exception is when an employee is going to work and performing an errand for or providing a service or benefit to a company at the same time.  

Another exception is when an employee’s job requires him to travel “from place to place or to a place away from a permanent residence or the employee’s place of business.” This is called the “traveling employee” rule.

Under the “traveling employee” rule, the law considers an employee to be in the course of employment from the time he begins his journey until he returns home or to his permanent place of business unless he embarks on a purely personal errand.

A classic example of a driver being held within the scope of employment during a crash involved a traveling salesman.

Suppose a salesman’s job has him working at his employer’s store part of the time and driving to prospective customers’ homes at other times.

Suppose further that the salesman is involved in a crash driving home for lunch between trips to customers.

Indiana has held that a salesman qualified as a ‘traveling employee in just such a case.’ And, the salesman’s employer could be held liable for the crash.

In the salesman’s situation, he received commissions for sales he made. He also was reimbursed for mileage in traveling to customer homes and was furnished with samples by his employer to take with him to customer homes.

The day of the crash was actually the employee’s scheduled day off; nevertheless, he had scheduled three appointments at customer homes.

Upon leaving the first customer’s home after making a sale, he decided to drive home for lunch and got in a crash on his way home. 

The court found the employee engaged in a task incidental to his employment at the time of the crash. A jury was permitted to hold the employer liable under the doctrine of respondeat superior.

The ‘traveling employee’ rule and the ‘going-and-coming’ rule often spark heated legal battles. Why? Because there is no clear-cut answer.

Every case is different.

I hope you found this information helpful. If you are a victim of someone’s carelessness, please call (219) 736-9700 with your questions. You can also learn more about us by visiting our website at DavidHolubLaw.com. We also invite you to subscribe to our weekly podcast: Personal Injury Primer, where we break down the law into simple terms, provide legal tips, and discuss personal injury law topics.