The Going Coming Rule and Traveling Employee

I’m David Holub, an attorney focusing on personal injury law in northwest Indiana.

Welcome to Personal Injury Primer, where we break down the law into simple terms, provide legal tips, and discuss personal injury law topics.

Today’s question comes from a caller who was rear-ended by a driver who was on his way to work at a construction site. The caller asked “the guy who hit me was in his private car and had no insurance, but the construction company he works for has insurance, can his employer be held responsible for the crash?”

Well, the answer on this one is … maybe.

Indiana applies the doctrine of respondeat superior.

The doctrine means that an employer can be held responsible for an employee’s wrongful or tortious acts when the employee’s actions are within the scope of their employment.

For an employee’s act to fall ‘within the scope of employment,’ the injury-causing action must be:

• incidental to the conduct authorized by the employer, or,
• it must, to an appreciable extent, further the employer’s business.

Whether an employee’s driving actions fall within the scope of employment is typically a question of fact to be determined by a jury.

Indiana generally follows the principle that an employee on his way to work is not generally within the scope of his employment. This is called the going-and-coming rule.

But, there are exceptions to this rule. One exception is when an employee is not just going to work, but also performing an errand for or providing a service or benefit to a company.  Another exception is when an employee’s job requires him to travel “from place to place or to a place away from a permanent residence or the employee’s place of business”. This is called the “traveling employee” rule.

Under the “traveling employee” rule, the employee is considered to be in the course of employment from the time he begins his journey until he returns home or to his permanent place of business, unless he embarks on a purely personal errand.

A classic example of a driver being held within the scope of employment at the time of the crash involved a traveling salesman.

Suppose a salesman’s job has him working at his employer’s store part of the time and driving to prospective customers’ homes the other amount of the time.

Suppose further that the salesman is involved in a crash driving home for lunch between trips to customers.

In just such a case, Indiana has held that the salesman qualified as a ‘traveling employee.’ And, the salesman’s employer could be held liable for the crash.

In the salesman’s situation, he received commissions for sales he made, reimbursement for mileage in traveling to customer homes, and was furnished with samples by his employer to take with him to customer homes.

The day of the crash was actually the employee’s scheduled day off; nevertheless, he had scheduled three appointments at customer homes. Upon leaving the first customer’s home after making a sale, he decided to drive home for lunch and got in a crash on his way home.

The court found that the employee was engaged in a task incidental to his employment at the time of the crash. A jury was permitted to hold the employer liable under the doctrine of respondeat superior.

The ‘traveling employee’ rule and the ‘going-and-coming’ rule often spark heated legal battles. Why? Because there is no clear-cut answer. Every case is different.

I hope you found this information helpful. If you are a victim of someone’s carelessness, substandard medical care, a product defect, work injury, or another personal injury, please call (219) 736-9700 with your questions. You can also learn more about us by visiting our website at DavidHolubLaw.com – while there, make sure you request a copy of our book “Fighting for Truth.”