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O'Connor v. McDonald's Rests. - 220 Cal. App. 3d 25, 269 Cal. Rptr. 101 (1990)


Generally, an employee is outside the scope of his employment while engaged in his ordinary commute to and from his place of work. This principle is known as the going-and-coming rule and is based on the theory that the employment relationship is suspended from the time the employee leaves his job until he returns and on the theory that during the normal everyday commute, the employee is not rendering services directly or indirectly to his employer. However, when the employee is traveling from his residence or returning to it as part of his usual duties or at the specific request or order of his employer, he is considered to be on a special errand for his employer and thus acting within the scope of his employment.


From about 8 p.m. on Aug. 12, 1982, until between 1 and 2 a.m. the next day, Evans and several coworkers employed by defendant McDonald's Restaurants of California, Inc. ("McDonald's") scoured the children's playground area of a local McDonald's restaurant. Evans—who aspired to a managerial position—worked without pay in the cleanup party at McDonald's request. After completing the cleanup, Evans and four fellow workers went to the house of McDonald's employee Duffer. Duffer had also participated in the evening's work. At Duffer's house, Evans and the others talked shop and socialized into the early hours of the morning. About 6:30 a.m., as Evans drove from Duffer's house toward his own home, his automobile collided with the motorcycle operated by plaintiff Martin K. O'Connor. O'Connor filed a lawsuit against McDonald's in California state court seeking to recover damages for his personal injuries sustained in the accident. O'Connor argued that McDonald's was vicarious liability for the negligence of its employee Evans. McDonald's filed a motion for summary judgment, which the trial court granted, finding that Evans had completely departed from a special errand on behalf of McDonald's and was not acting within the scope of his employment at the time of the accident. O'Connor appealed.


Did the trial court err in granting summary judgment in favor of McDonald's?




The appellate court reversed the trial court's judgment. The court observed that the trial court found—and the parties did not challenge on appeal—that Evans' voluntary participation in the spring clean-up until after midnight constituted a special errand on McDonald's behalf. The court ruled that disputed factual questions and reasonable inferences precluded a determination as a matter of law of the issue whether Evans completely abandoned his special errand. Thus, the court concluded, the trial court should have denied McDonald’s motion for summary judgment. 

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