Metropolitan News-Enterprise


Friday, January 24, 2003


Page 3


Woman Injured by Driver Who Was Impaired by Insecticide to Get Trial


By ROBERT GREENE, Associate Editor


A woman rear-ended by a  clerk who was sent home after having been possibly exposed to pest control fumes can sue the employer under respondeat superior theory, this district’s Court of Appeal ruled yesterday.

The so-called coming-and-going rule that usually exempts employers from liability for acts committed by employees on their daily commute to and from work should not apply to clerk Irma Hernandez, the court ruled, because her job allegedly contributed to her accident.

The fact that Hernandez was driving home and was essentially on her own time should not obscure injured motorist Barbara Bussard’s argument that chemicals usedin the office of employer Minimed, Inc. impaired Hernandez, Justice Laurence D. Rubin wrote for Div. Eight.

Los Angeles Superior Court Judge John P. Farrell erred, Rubin said, in granting the company summary judgment.

“Hernandez suffered pesticide exposure at work to which she attributed illness and impaired driving,” Rubin wrote. “That an employee might not be fit to drive after breathing lingering pesticide fumes for several hours is not such a starling or unusual event that we find a car accident on Hernandez’s commute home was unforeseeable. Hence, the trial court erred in finding the going-and-coming rule barred [Bussard’s] claim of respondeat superior.”

The suit stems from a flea infestation at Minimed’s facility. The company hired a pest control firm to spray overnight on March 22, 2000, and Hernandez was among the first to report for work at 7 a.m. the next morning.

She said she noticed a smell like “Raid,” an off-the-counter insecticide

By 10 a.m., she felt ill, and at noon she told two supervisors she wanted to go home. One supervisor offered to drive her home, but she declined. Another asked her if she was well enough to drive home, and she said she was.

Bussard was stopped at a red light when Hernandez, who later told police she felt dizzy and lightheaded, ran into her.

Bussard sued Minimed as well as Hernandez, claiming the company was vicariously liable under resondeat superior theory because Hernandez was acting within the course and scope of her employment when she was driving home sick.

Minimed moved for summary judgment, arguing that under the coming-and-going rule respondeat superior does not apply.

Rubin acknowledged that the doctrine of respondeat superior—which imposes liability on a business when an injury was caused by a worker in the course of doing the company’s work— generally is not so broad as to include and employee’s daily commute. The employment relationship usually is suspended at the end of the work day when the worker leaves for home, he said.

But he noted that there are exceptions to the coming-and-going rule, based mostly on whether the employee actions that endanger others are work-related.

To determine whether they are, courts apply a foreseeability test. For example, businesses are liable for accidents caused by employees who drink at work, but not for those who stop off for a drink on the way home.

In Hernandez’s situation, Rubin said, the going-and-coming rule was a distraction.

“Although Hernandez’s decision to drive home gave [Minimed] an opening to raise the going-and-coming rule, the rule did not apply because her decision was a fortuity that must not obscure [Bussard’s] central claim that Hernandez’s job had contributed to the accident,” Rubin said.

The case is Bussard v. Minimed, Inc., B158537.


Copyright 2003, Metropolitan News Company