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An Exception to the Exception – The Special Errand Rule

On Behalf of | Oct 26, 2017 | Employment

In Morales-Simental v. Genentech, Inc., 2017 Cal. App. LEXIS 915, Plaintiffs and appellants Morales-Simental, et al. appealed from a summary judgment granted in favor of defendant and respondent Genentech, Inc.  Plaintiffs alleged they suffered injuries and sustained damages as a result of the negligence of Vincent Inte Ong, an employee of Genentech Inc., during a vehicle collision.  The issue was whether or not Ong was acting within the scope of his employment at the time of the collision.  The court looked to the doctrine of respondeat superior. 

Under the doctrine of respondeat superior, an employer is vicariously liable for the tortious conduct of its employees within the scope of their employment.  Scope of employment has historically been interpreted broadly in California.  Acts where an employee tends to his own business at the same time as that of his employer do not remove the employee from the scope of employment unless it is clear that the action neither directly nor indirectly serves his employer.  However, there are exceptions to the respondeat superior doctrine.  One exception is the “going and coming” exception which states that an employee commuting to or from work is outside the scope of employment.  The employer is typically not liable under the theory that the employment relationship is suspended from the time the employee leaves until he returns because during the commute time he is not rendering service to his employer.  An exception to this exception is the special errand rule.  The “special errand rule” states than an employee is within the scope of his employment when performing a special errand as part of his regular duties or as a special request.

In Morales-Simental the issue was that Ong was headed back to work in the early morning hours of December 13 for an ongoing hiring project to review resumes.  The plaintiffs argued that Ong was performing a special errand and as a supervisor for Genentech, Inc. had the authority to request the errand of himself on his employer’s behalf.  The court held that the fact a trip may be related to an employee’s job does not impose liability on the employer especially when the employer does not request or expect it of the employee even if the errand benefits the employer.  Additionally, although hiring was part of Ong’s regular duties for Genentech, Inc., driving into work on his day off was not.  The court did not believe Ong’s behavior could be interpreted as a request by Genentech, Inc. just because of his status as a supervisor because of the amount of control he retained. For all of these reasons, the court affirmed the summary judgment in the defendant’s favor.

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