By Jeremy K. Robinson, CaseyGerry — Published Daily Journal

Imagine: you are the managing partner at a law firm. One Saturday morning, you learn that the night before, one of your employees left work and later crashed into and killed an innocent driver. You are horrified at the death, of course. But you are also worried that your firm may be on the hook for the resulting damages. Even if you are not completely up to speed on respondeat superior law, you know the “going and coming” rule that normally bars employer liability for employee drives is riddled with exceptions.

What questions do you ask? The first, and probably most obvious, is “was the employee drunk”? If so, where did she get or drink the alcohol? If the answer is “at work,” the firm is potentially in trouble, and you might want to re-think your alcohol policy. So holds the recent case of Purton v. Marriott International, Inc., 218 Cal. App. 4th 499 (2013).

The second and third questions are: Do you require the employee to make her own car available for work purposes, and are you located in the 2nd or 5th appellate district? Because the latter seems to make a difference.

First the drinking. Employers paying for damage and destruction wrought by drunken employees is nothing new. See McCarty v. Workmen’s Comp. Appeals Bd., 12 Cal. 3d 677 (1974); Childers v. Shasta Livestock Auction Yard, Inc., 190 Cal. App. 3d 792 (1987). But Purton puts a new wrinkle on it: The employee attended a holiday function, got drunk with both his own booze and some supplied by Marriott, drove home, made it home, but then left to drive someone else home and caused a fatal crash because he was still drunk.

Aside from the usual arguments about whether the drinking was in the course and scope of employment (i.e., was it a “customary incident of the employment relationship”), Marriott argued that once the employee made it safely home, any potential liability Marriott may have had was cut off — and got summary judgment on that basis.

The appellate court didn’t see it that way and reversed, saying “there is no reasonable justification for cutting off an employer’s potential liability as a matter of law simply because an employee reaches home.” In response to Marriott’s complaints that the decision effectively requires employers to escort employees home from parties, the court said Marriott “created the risk of harm at its party by allowing an employee to consume alcohol to the point of intoxication.”

This is the “instrumentality of danger” approach espoused by a number of courts. The premise is simple: If your employee does something in the course and scope of his employment that makes him or her an “instrumentality of danger” (like getting drunk), you, the employer, remain responsible for the employee’s torts until that wears off. Even if the employee makes it home and leaves again. The lesson: If you don’t let employees get drunk at employer events, there will not be a problem.

But let’s suppose our hypothetical employee was not drunk. Then we get to whether you require the employee to make her own car available for work, and where you’re located. If you do require your employee to use her vehicle for work, two recent published cases, Moradi v. Marsh USA, Inc., 2013 DJDAR 12540 (Sept. 17, 2013), from the 2nd District Court of Appeal, and Halliburton Energy Services, Inc. v. Department of Transportation, 2013 DJDAR 13267 (Oct. 1, 2013), from the 5th District Court of Appeal, suggest your liability may turn on which appellate district you draw.

Moradi and Halliburton both involve what has come to be known as the “required vehicle” exception to the “going and coming” rule. See Lobo v. Tamco, 182 Cal.App.4th 297, 301 (2010). Again, despite the possibility for nearly infinite regression of rules and exceptions here, the concept is fairly simple. Basically, the “required vehicle” exception holds that if the employee is required to use his or her personal vehicle for work or has agreed to make the vehicle available as an accommodation to the employer, the “going and coming rule” does not apply, and employers can be liable under respondeat superior for employee crashes during their commute. Think pizza delivery driver.

Moradi and Halliburton also involve similar fact patterns. In Moradi, the employee, a salesperson who used her car for various employment tasks including meeting with clients and driving the employer’s minions around, left work to stop for frozen yogurt and attend a yoga session before going home. She planned to use her car for business travel the next day. While going to the yogurt store, she turned left in front of a motorcycle she did not see (in part, because the rider was splitting lanes in otherwise stopped traffic), and the rider T-boned her car.

In Halliburton, the employee was driving his employer’s vehicle and was returning to work from a fairly lengthy drive after going on a personal errand (having lunch with his wife and trying to help her buy a car). He lost control of the truck on I-5 and crossed over into the opposite lanes, injuring six people.

The employers got sued in both cases. But the courts in Moradi and Halliburton reached the opposite conclusions. Moradi reversed summary judgment for the employer and Halliburton affirmed it. The court in Halliburton even acknowledged the Moradi decision in a footnote but did little other than say, “yeah, there’s also that case.” Why? Is yogurt and yoga more closely related to work than lunch and car shopping?

It is hard to reconcile the two cases, and so, unfortunately, they aren’t go to provide much helpful guidance to you, the managing partner. Instead, you may have to wait for the state Supreme Court to sort it all out. A petition for review has been filed in Purton, and I would be surprised if attorneys in Moradi and Halliburton didn’t follow suit. The Supreme Court may not have any interest in Purton, since, despite a superficially surprising result, it flows from well-established concepts, but Moradi and Halliburton present the type of conflict the court lives to correct.

Jeremy K. Robinson is a longtime attorney at the San Diego law offices of Casey Gerry Schenk Francavilla Blatt & Penfield LLP, and chair of the firm’s Motion and Appellate Practice.

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