Vicarious Liability and the Going and Coming Rule

When is an employer vicariously liable to a third-party for the conduct of its employees?

“In Florida, an employer is vicariously liable for an employee’s tortious conduct where the conduct occurs within the scope of the employment.”  An employee’s “[c]onduct is within the scope of employment if it occurs substantially within authorized time and space limits, and it is activated at least in part by a purpose to serve the master.” 

Indoneisia Peterson v. Cisco Systems, Inc., 46 Fla.L.Weekly D1248a (Fla. 2d DCA 2021) (internal citations omitted).

Is an employer liable for conduct of its employees driving to and from work?  The answer is generally no and this is referred to as the going and coming rule.  “[A]n employee driving to and from work is not within the scope of employment so as to impose liability on the employer.” Indoneisia Peterson, supra, (quotation omitted)

In Indoneisia Peterson, an employee from Virginia was sent to Florida to work temporarily for a Florida-based customer.  The employer, as common, paid for its employee’s hotel room and rental car.  While the employee was driving from the hotel to the customer’s location, a car accident occurred.  The plaintiff sued the employer under a vicarious liability theory.  The employer moved for summary judgment based on the going and coming rule that it should not be held vicariously liable for the conduct of its employee driving to or from work even if the employee is on a work trip.  The trial court agreed and the appellate court affirmed: “We cannot agree that an employer’s vicarious liability to a third party depends upon whether the employee drives to the worksite from a temporary residence as opposed to his usual abode.  That [the employee] was working out of state at the time of the collision does not automatically change his morning commute into working within the regular scope of his employment.” Indoneisia Peterson, supra (internal citation omitted)

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