Kim Rushton, an employee of the City of Los Angeles (City of LA), struck and killed a pedestrian, Ralph Bingener, while commuting to work. Mr. Rushton, a 68-year old man with neurological conditions, worked as a chemist in a water quality lab checking water for semi-volatile organic compounds. He did not use his car for his employment. All of Mr. Rushton’s work was performed at the lab and he rarely left the plant for work-related travel.
The plaintiffs, Mr. Bingener’s two surviving brothers, argued that the City of LA was liable because it knew about Mr. Rushton’s health conditions. Plaintiffs contended that Mr. Rushton was unfit to drive due to his neurological injuries and medications he took. Even though the City of LA knew this, it allowed him to return to work prematurely without placing any restrictions on his driving, according to the plaintiffs. Because Mr. Rushton was unfit to drive, his driving to work was a foreseeable risk of the City of LA’s activities. On this basis, the plaintiffs argued that the City of LA should be liable. In response, the City of LA moved for summary judgment.
The trial court granted the City of LA’s Motion for Summary Judgment and the appellate court affirmed. (Bingener et al. v. City of Los Angeles, et al., B291112, (filed 12/16/19, certified for publication on 1/9/20).) Under the doctrine of respondeat superior, an employer is liable for the torts its employee committed within the course and scope of employment. In general, employees are not considered to be acting within the scope of employment when they are commuting to and from work. However, there can be exceptions to this rule, such as when an employer derives some sort of benefit from the trip or if the employee’s work is both in the field and at the office. An employer can also be liable if the employee endangers others with a risk inherent in or created by the business.
In this case, the appellate court found that the facts supported that Mr. Rushton was commuting to work at the time of the accident. He was not on a special errand for his employer or using his car in the performance of his work. The court also found that the accident was not caused by anything inherent in or created by the enterprise. Nothing about being a chemist made the accident during a normal commute foreseeable. The City of LA also did not require Mr. Rushton to drive. Mr. Rushton’s neurological issues did not come into play since his physician released him to return to work and placed no restrictions on his driving.
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