South Dakota: Court Uses Going and Coming Rule to Gauge Scope of Employment in Tort Case

The “going and coming” rule, which generally holds that a worker’s commute to and from home is outside the scope of the employment if he or she has a fixed locus of employment and fixed hours, could also be utilized in a negligence action filed by a third-party against the worker’s employer, where the plaintiff and the worker were involved in an automobile accident as the worker drove to his employment. Acknowledging that an employer could, under appropriate circumstances, be liable under the doctrine of respondeat superior for the torts of an employee, the court found the going and coming rule a suitable tool to determine whether the employee here, who was traveling to the employment, was within the scope of that employment. There was insufficient evidence that the employer exercised any control over the employee while he commuted, and the court was justified in granting the employer summary judgment in this case.

Thomas A. Robinson, J.D., the co-Editor-in-Chief and Feature National Columnist for the LexisNexis Workers’ Compensation eNewsletter, is co-author of Larson’s Workers’ Compensation Law (LexisNexis).

LexisNexis Online Subscribers: Citations below link to Lexis Advance.

See Tammen v. Tronvold, 2021 SD 56, 2021 S.D. LEXIS 107] (Sept. 22, 2021)

See generally Larson’s Workers’ Compensation Law, § 15.05.

Source: Larson’s Workers’ Compensation Law, the nation’s leading authority on workers’ compensation law

For a more detailed discussion of the case, see

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