Generally, an employer is liable for the injuries caused by its employee to others committed within the scope of that employee’s employment under the doctrine of “respondeat superior“. The burden of proof is on the injured plaintiff to demonstrate that the negligent act resulting in injury was committed within the scope of employment. Ducey v. Argo Sales Co. (1979).
Many courts employ a two-part test to determine whether an employee’s conduct was within the scope of his employment for purposes of finding liability against the employer, asking whether (1) the act performed, such as driving, was either required or incidental to that employee’s duties, or (2) the employee’s misconduct could be reasonable foreseen by the employer in any event. If the employee’s actions fall within either prong, the employer is liable for the injury caused.
The most common obvious case, where the employer is liable, is where the employee for that employer causes an injury while performing his duties, such as truck driver hitting another driver, or a forklift operator at a warehouse store, hitting a customer with the vehicle. An injury that occurs while the employee significantly deviates from his duties will likely not be attributable to the employer. For example, when the employee leaves the employer’s premises on a lunch break, to get lunch or run a personal errand, and the employee is not engaged in any errand or task for the employer, the employee is not acting within the scope of his employment. Cain v Marquez (1939).
Under the “going and coming” rule an employee going and coming from work is usually considered outside of his scope of employment, so that the employer is not liable for the injuries caused by that employee during that commute time. There are generally two major exceptions to this rule:
One exception is where the employer requires an employee to use his personal vehicle to get to work or where the employer provides a vehicle and requires that employee to use the vehicle for commuting from home to work. Henderson v Adia Services (1986).
The other exception is whether the employer incidentally benefits from that employee’s commute to or from work. A classic example of this is where the employer asks the employee to do something for the employer on their way to work or on their way from work home.