The Florida Second District Court of Appeal recently ruled on the “going and coming” rule in Peterson v. Cisco Sys., 2021 Fla.App.LEXIS 7652 (Fla. 2d DCA 2021). This case involved a personal injury claim in which the Plaintiff sued Cisco Systems under the theory of respondeat superior for damages which were allegedly caused by the negligent acts of Cisco’s employee. As we all know, “respondeat superior makes employers liable for the negligence of their employees for wrongful acts committed within the course and scope of their employment." Id.
Cisco Systems sent an employee from Virginia to Tampa, Florida, to do work for a customer located in Tampa. The Cisco employee had to drive a rental car from the hotel he was staying at to an on-site location for the Tampa based customer. The Cisco employee was driving to the work site from the hotel when the collision with Plaintiff occurred. Cisco moved for summary judgment, claiming a person driving to or from work is not within the course and scope of his employment. The trial court granted summary judgment in favor of Cisco. An appeal was raised and heard by the Second DCA.
The “going and coming” rule is a limitation on the vicarious liability of an employer. Under Florida law, it is well established that “an employee driving to and from work is not within the scope of employment so as to impose liability on the employer." Id. at 3. The court distinguishes this rule based in negligence with the “travelling employee” rule developed under workers’ compensation law. The “travelling employee” rule states "an employee whose work entails travel away from the employer's premises is within the course of his employment at all times during the trip other than when there is a distinct departure for a non-essential personal errand." Id. at 4.
This decision firmly establishes the “travelling employee” rule only applies in workers’ compensation cases. Additionally, the “going and coming” rule is more limited in its application because it requires the employees conduct to occur substantially within authorized time and space limits and have a purpose that serves the master.
It is important to recognize these situations when developing Answers and Affirmative Defenses as well as responses to Requests for Admissions. Ill-advised admissions or concessions that an employee was working in the course and scope of his employment will overrule the limitation afforded by the “going and coming” rule. Generally, vicarious liability claims must be tied to the course and scope of employment. That makes it important to understand this distinction as, though similar, one may be a viable exit strategy while the other is a failed argument.