D hired pest control company to spray for fleas overnight. Next day, employee Hernandez came into work and complained of a strong pesticide smell.
Later, she became ill and ask to go home. Her supervisors asked if she wanted to go to the company doctor; she declined. They then asked if she could drive home; she said she could.
On the way home, Hernandez got into an accident with P. P sued Hernandez and her employer through respondeat superior.
Trial court entered summary judgment for D (company).
CA COA reversed, remanded for trial.
When is an employer responsible in tort for the actions of its employees under respondeat superior?
Under the doctrine of respondeat superior, an employer is ordinarily liable for the injuries its employees cause others in the course of their work.
The employee must be acting within the course of his employment (which case law defines expansively). Acts necessary to the comfort, convenience, health, and welfare of the employee while at work, though strictly personal and not acts of service, do not take the employee outside the scope of employment.
The doctrine does not usually cover an employee's daily commute (going-and-coming rule). However, there is an exception when an employee endangers others with a risk arising from or related to work.
Employers are responsible for both the negligent torts and the willful, malicious torts of its employees.
An employee's act may be within the scope of employment even if it contravenes an express company rule and confers no benefit to the employer.
One exception to the going-and-coming rule is that the employer is still liable when an employee endangers others with a risk arising from or related to work.
In determining whether such danger arises from or is related to work, case law applies a foreseeability test (conduct that is neither startling or unusual).
The test has been applied to employees who got into car accidents on the way home after drinking alcohol at work.
That an employee might not be fit to drive after inhaling pesticides for hours at work is not such a startling or unusual event that we find a car accident on Hernandez's commute home was unforeseeable.
Hernandez was an instrumentality of danger because of what happened to her at work, so her employer should be liable under respondeat superior.