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“Coming and Going Rule” Precludes Recovery for California Plaintiff

California employers are liable for their employees’ negligent actions while they are operating in the scope and course of their jobs and injure or kill others. However, employers are not liable for the negligence of their employees when the workers are commuting to or from their jobs with limited exceptions. In Bingener v. City of Los Angeles, Cal. Ct. App. Case No. B291112, the court looked at the exceptions to the coming and going rule to determine whether the employer of a negligent worker who struck a pedestrian while commuting to work fell under an exception to the coming and going rule or whether the rule applied, absolving the employer of liability.[1]

Factual and procedural background

Kim Rushton was a 68-year-old man who worked as a chemist in a water lab for the City of Los Angeles to test water samples for organic molecules. Rushton had been employed in his job for more than 20 years. He received medical treatment for several medical conditions, including occasional seizures, neuropathy in his feet, and tremors that were controlled with medications. In Dec. 2014, Rushton fell at his job and remained off from work until Feb. 2015 because of his fall-related injuries. He was allowed to return to work on Feb. 2, 2015, with restrictions on kneeling, squatting, and bending. He was also restricted from sitting or standing for longer than four hours. The doctor did not place any restrictions on his ability to drive, however. On Feb. 20, 2015, Rushton was given an injection of steroids to ease his back pain.

On Feb. 24, 2015, Rushton testified that he felt fine when he woke up. He had not drunk any alcohol the night before, and he did not take any medications. When Rushton left for work, it was still dark outside. He was driving his car between 40 to 50 miles per hour through Culver City, California when he struck a pedestrian who stepped off of a curb into a crosswalk named Ralph Bingener. Rushton stopped his car and went to give help to Bingener. Some nurses drove up to the scene and began providing emergency treatment until the emergency responders arrived. Bingener died as a result of his injuries.

Rushton was tested and was not under the influence of alcohol or drugs at the time of the accident. It was determined that a streetlight in the area where Bingener was hit was not working at the time of the accident. Rushton’s driver’s license was initially suspended, but it was subsequently reinstated. Rushton was then given his parking pass back from the city for his job.

Bingener’s brothers filed a claim against the City of Los Angeles under the Government Claims Act and then filed a lawsuit against Los Angeles, alleging that the city was vicariously liable for Rushton’s negligence at the time that the accident happened. The city filed a motion for summary judgment, arguing that the coming and going rule applied, and the court granted the motion. The Bingeners then filed an appeal.

Issue: Whether the coming and going rule applied to Rushton’s accident?

The Bingeners argued that Rushton met an exception to the coming and going rule because the City knew that he had been treated for a back injury and should not have allowed him to drive to and from work. The City argued that he had been cleared to return to work by his doctor and that his driving had not been restricted by his doctor.

Rule: Employers are not liable for the negligence of their employees when they are coming to work or going home after work unless an exception applies.

Employers are vicariously liable for the negligent actions of their employees when their employees cause injuries or fatalities to others while they are working within the scope and course of their jobs. However, vicarious liability does not apply during an employee’s commute unless the employer creates an inherent and foreseeable risk to others. For example, an employee who stays after work to have drinks with his or her supervisor and is then allowed to drive home might meet the exception to the coming and going rule because of the foreseeable risk of allowing the employee to drive home after drinking alcohol on the job.


The Bingeners argued that the City of Los Angeles met the exception to the coming and going rule by allowing Rushton to drive to and from work despite its knowledge that he was receiving medical treatment for his back injury. They argued that the city paid for his medical treatment, including the epidural steroid shot, that he received on Feb. 20, 2015. The city argued that Rushton’s doctor did not restrict his ability to drive and that driving was not an integral part of his job. It also argued that Rushton was not found to be under the influence of alcohol or drugs at the time of his accident, and the city did not have any control over his actions when he was off of work, including during his morning commute.

The exception to the coming and going rule applies when the risk is created during the scope and course of a defendant’s job. For example, the court looked at the decision in Bussard. v. Minimed, 105 Cal.App.4th 798 (2003). In that case, the employer had sprayed pesticides at work improperly. The pesticides sickened a worker who then was unable to safely drive home. The employer was held to be vicariously liable because it had created the conditions that resulted in the risk to others from the employee’s driving.[2]

As we have previously discussed, an employer may be liable for the negligent actions of its employee when the employer negligently entrusts a company vehicle to a driver that it knows or should know is unfit to drive.[3] However, in this case, Rushton was not driving a city vehicle, and his job did not require him to drive anywhere for his job.

When the court compared the facts in this case to Bussard, it found that the city did not create any risk to others. This meant that the coming and going rule applied.


The court affirmed the decision of the lower court and upheld the dismissal of the action. It ordered that the city should recover its costs on the appeal.

Contact Steven M. Sweat Injury Lawyers APC

If you have suffered injuries in an accident that was caused by someone who was driving for work, you might be entitled to recover damages from the driver and his or her employer. The injury attorneys at Steven M. Sweat Injury Lawyers APC can review your case and explain its merits. They can also explain whether the employer might be vicariously liable or if there might be other sources of recovery. Contact us today to schedule a free consultation so that you can learn about your rights to recovery by calling us at (866) 966-5240. You can also request a free initial consultation by filling out your information in our online contact form.





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