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Use of Workers’ Comp Doctrines Within Tort Arena: Borrowed Legal Doctrines Don’t Really Fit

November 10, 2013 (12 min read)

Attention Lexis Online Subscribers: Citations below link to Bracketed citations link to Lexis Advance.

During a conversation years ago with my mentor and friend, Arthur Larson, I asked him if there were special challenges in teaching workers’ compensation law. Arthur allowed that there were indeed several, but that perhaps the most difficult challenge, particularly early in the course of any semester, was to cajole the law students into an understanding that workers’ compensation law is not a branch or subset of tort law [see Larson’s Workers’ Compensation Law, §§ 1.02, 1.03 [§§ 1.02, 1.03]. Indeed, Arthur added that on those multiple occasions in which workers’ compensation law had borrowed concepts or doctrines from the tort law arena (e.g., the “substantially certain” test—see Larson, § 103.04[2] [§ 103.04]), the result had seldom been satisfactory. “Borrowed legal doctrines are like borrowed coats,” said Arthur. “They work to a degree, but they don’t really fit.”

Of course, the borrowing isn’t one-sided. Trial and appellate courts sometimes reach into the workers’ compensation arena for guidance, rules and legal theories. Whether it is because the two areas of law share a somewhat overlapping vocabulary or whether issues such as the exclusive remedy doctrine are often at work within both legal settings, civil courts and administrative agencies alike sometimes use tort and workers’ compensation doctrines interchangeably, often to the detriment of the employer, the injured employee, or both.

Recent Decisions in California

An example of such borrowing of an “ill-fitting” doctrine can be seen in two recent California cases, Moradi v. Marsh USA, Inc., 219 Cal.App.4th 886, 78 Cal. Comp. Cases 916 [78 CCC 916] (2013) and Halliburton v. Department of Transp., 220 Cal. App. 4th 87, 78 Cal. Comp. Cases 1049 (2013) [78 CCC 1049]. In Moradi, applying California’s “required vehicle” exception to the “going and coming” rule—a core doctrine within workers’ compensation law–the Court of Appeal of California (Second Appellate Dist., Div. One) held that an employer could be held liable, on respondeat superior grounds, for injuries caused during the homebound commute by an employee who was required to drive her personal vehicle to and from work each day so as to be available to call on customers. That the employee had finished working for the day, was on her way to attend a yoga class and had decided that she first wanted to enjoy some frozen yogurt—requiring that she make a difficult left turn in front of oncoming traffic—made no difference, held the appellate court. The planned stops on her way home did not diminish the incidental benefit to the employer of having the employee use her personal vehicle to travel to and from the office and other destinations. The court reasoned that liability could, therefore, be extended to the employer in spite of the tenuous connection, if any, between the employment and the employee’s decision to seek refreshment and to engage in other personal errands.

In Halliburton, decided three weeks after Moradi, the Court of Appeal for the Fifth Appellate District appeared to step back a bit, holding that the trial court correctly determined that the employer could not be held liable on a respondeat superior theory because the employee in question was not acting within the scope of his employment at the time of the accident. The court reasoned that even if the required vehicle exception to the going and coming rule applied, the undisputed evidence indicated that at the end of his shift, the employee drove some 120 miles away from his assigned duties in order to assist his wife in purchasing an automobile. He was returning to work when he was involved in an accident. The court indicated that unlike the deviation in Moradi, the departure from the course and scope of the employment here was significant. It was a purely personal enterprise. Under the circumstances, the employer could not be held liable for injuries caused by the employee in spite of the fact that the employer derived some benefit from the employee’s use of his personal vehicle.

The decisions are not as different as one might think. Both utilize the required vehicle exception to the going and coming rule within the context of a tort action. In one the employee’s deviation from the employment was considered insignificant; in the other it was determined to be substantial. Both courts, however, were quite comfortable borrowing and applying a workers’ compensation doctrine within the context of a tort action.

Other State Trial and Appellate Courts Have Adopted Workers’ Compensation Doctrines

When it comes to such borrowing of workers’ compensation doctrines, California courts are not alone. For example, in Tran v. Dave’s Elec. Co., Inc., 361 S.W.3d 417 [361 S.W.3d 417] (Mo. Ct. App. 2011), a Missouri court held that a trial court erred in denying a plaintiff’s motion for JNOV following a jury verdict that found a company was not vicariously liable for damages sustained in an auto accident involving the company’s president. The president was driving from her home to meet with an auditor from the company’s workers’ compensation carrier. It was undisputed that except for the meeting, the president would likely have worked from home that day due to inclement weather. The court indicated that under the going and coming rule the president’s travel would not ordinarily have been considered within the course and scope of the employment. An exception—the “special errand” rule—applied, however. At the time of the accident, the president was on a special errand to further the interests of the employer. Respondeat superior liability was, therefore, appropriate for the case.

In McCloud v. Kimbro, 224 Ariz. 121, 228 P.3d 113 [224 Ariz. 121] (App. 2010), an Arizona court, borrowing from workers’ compensation law’s “traveling employee” rule, which generally broadens the course and scope of employment for traveling employees so as to encompass injuries sustained in hotels, restaurants and other premises outside the control of the employer, held that a Department of Public Safety officer’s out-of-town travel status meant that his travel to a restaurant was within the course and scope of his employment. According to the court, eating was necessarily incidental to the officer’s multiple-day assignment. The employer could, therefore, be held liable for injuries sustained by a third party caused by the officer’s negligence as he traveled to his regular meal.

A decision from Kentucky, Collins v. Appalachian Research and Defense Fund, 2012 Ky. App. LEXIS 269 [2012 Ky. App. LEXIS 269] (Dec. 7, 2012), utilizing workers’ compensation law’s going and coming rule, the appellate court agreed with a trial court that an attorney’s commute to her office was not within the course and scope of her employment. A tort action against the attorney’s employer for damages sustained by a third party injured in an auto accident with the vehicle driven by the attorney could, therefore, not be maintained.

Problems With the “Borrowed Garment” Recognized in Recent Illinois Decision

If, for workers’ compensation purposes, the course and scope of employment can be broadened by the required vehicle doctrine, the traveling employee rule, or the special errand rule so as to make injuries sustained by the employee during the travel time compensable, does it necessarily follow that the course and scope of the employment should similarly be expanded under those same circumstances so as to make the employer liable to a third party on respondeat superior grounds? A recent Illinois decision, Pister v. Matrix Serv. Industrial Contractors, Inc., 2013 Ill. App. LEXIS 600 [2013 Ill. App. LEXIS 600] (Sept. 6, 2013), decided eleven days prior to Moradi, offers an intelligent and compelling response: “No.”

In April 2009, a vehicle driven by the defendant company’s employee, Stultz, struck the vehicle of Jeffrey Pister, resulting in the death of both men. An autopsy showed that Stultz had oxycodone in his system. At the time of the accident, Stultz was nearing his work assignment. Pister’s widow filed a tort action against the defendant employer and the estate of Stultz, contending in relevant part that the employer was liable for Pister’s death under the doctrine of respondeat superior. Utilizing separate workers’ compensation doctrines, Pister set forth two theories of liability: (1) that Stultz was a “traveling employee” of the defendant; and (2) that Stultz was on a “special errand” for the defendant at the time of the accident. As to the first issue, the court, pretrial, granted summary judgment for the defendant, finding that the theory was restricted only to workers’ compensation cases. As to the “special errand” theory of liability, the jury returned a verdict in favor of the defendant. Pister appealed.

The appellate court noted that after hearing arguments on the employer’s motion for summary judgment, the trial court determined that the employee would have been classified as a “traveling employee” if his family filed a workers’ compensation case in Illinois. But the trial court indicated the traveling employee rule had only been applied within the workers’ compensation law setting; it had never been extended to respondeat superior cases. The appellate court agreed.

The court drew a sharp distinction between the relevant inquiry within the context of the state’s Workers’ Compensation Act and the inquiry or examination that should be applied within the tort arena. The Act’s purpose was to provide financial protection for employees who incur broadly defined work-related injuries; the same could not be said for respondeat superior cases. There courts sought to assign liability to employers based upon an employee’s negligence within the scope of employment. According to the court, the inquiry in respondeat superior cases was more limited than the “work-related injury” inquiry utilized in workers’ compensation cases. The court said that to extend the Act’s “traveling employee” principle automatically to tort liability would extend liability to an unlimited number of employers for the actions of their employees over which the employers may not have had direct control.

Focus of Tort Law and Workers’ Compensation Law Is Entirely Different

The Pister court’s analysis is quite consistent with that of Dr. Larson (see Larson, § 1.03[1] [§ 1.03]). The test of liability in the workers’ compensation setting is not the relation of an individual’s fault or negligence to an event, as it is within the tort arena, but rather the relationship of an event to the employment. As observed in the Larson treatise:

“Tort litigation is an adversary contest to right a wrong between the contestants; workers’ compensation is a system, not a contest, to supply security to injured workers and distribute the cost to the consumers of the product.”

Larson's Workers' Compensation Law, § 1.031.03].

The distinction between the “contest” and the “system” should always be considered when borrowing a doctrine one from the other.


The use of workers’ compensation doctrines within the tort setting seems so natural. If a court is trying to carve out the course and scope of a defendant’s employment, why not utilize a comp rule to assist in that determination? Well, the reason such use should be avoided is that the goals within the two legal settings differ so drastically. The purpose of California’s required vehicle rule is to impress upon the employer that if its business purposes require that an employee have a personal vehicle at his or her disposal during the work day, it is only appropriate to say that the use of that vehicle in getting back and forth to work falls within the course and scope of the driver’s employment (unless there is a substantial deviation, as in Halliburton). The rule is intended to mark out the delineation of employment between the employer and the employee; its goal is not to make a similar delineation between the employer and a third party.

Consider the following hypothetical: In Pister, if the Illinois Workers’ Compensation Commission determined that the employee, Stultz, was within the course and scope of the employment at the time of the fatal injury, would a trial court be bound by that decision? I think not, since a core element within the doctrine of res judicata is that there be identical parties and issues. The issues at stake before the Commission and those at stake before the trial court are not aligned. The goal of the workers’ compensation system is to determine whether or not Stultz’ survivors are due workers’ compensation benefits, not whether Pister’s survivors are to be “made whole” through a civil action.

In mythic times, Odysseus wanted to hear the enticing call of the Sirens, yet knew their sweet voices had drawn many a sailor to crash his ship on the island’s rocky shore. He instructed his crew to plug their ears with beeswax and then lash him to the mast so that he might hear the Sirens’ beautiful song, but his crew would not hear his orders to maneuver the ship closer to the rocks. Courts within the tort setting and commissions and boards administering Workers’ Compensation Acts alike should not only be aware that the legal doctrines used by the other are enticing; they are dangerous and ill-fitting.

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