Feltham v. Universal Protection Service (Mar. 30, 2022, A161190) __ Cal.App.5th __ [2022 WL 950810]
Plaintiff brought a negligence action against defendant, alleging negligent hiring of a security guard. Plaintiff was seriously injured when the security guard fell asleep while driving home from an overnight shift and struck plaintiff. The trial court granted defendant’s motion for summary judgment.
Plaintiff appealed, arguing that defendant was liable under the special risk exception to the going and coming rule. Under the going and coming rule, an employer is not vicariously liable for torts committed by an employee commuting to or from work. However, an employer may be liable for torts committed by a commuting employee under the special risk exception if the employee’s work created a foreseeable risk that the employee, while commuting, would cause the type of injury for which the plaintiff seeks compensation.
The Court of Appeal affirmed, pointing to the fact that the security guard had finished her shift and was on her way home in her personal vehicle at the time of the accident, and there was no evidence that defendant caused the security guard to work excessive hours or that her schedule caused her to be fatigued.
