## Facts

- Minimed arranged for overnight pesticide spraying at its facility to address fleas.
- Irma Hernandez, a clerical employee, arrived around 7:00 a.m., noticed a strong odor, and later developed symptoms including headache, nausea, chest tightness, and illness.
- Around noon, Hernandez reported to supervisors that she was too sick to continue working and wanted to go home.
- A supervisor offered to send Hernandez to a company doctor, which she declined; another asked whether she felt well enough to drive home, and she said yes.
- Numerous employees reported illness from the exposure; several left work early and many sought medical care.
- Shortly after leaving work, Hernandez rear-ended Barbara Bussard at a red light while driving home.
- Hernandez told police she felt dizzy and lightheaded before the collision.
- Bussard sued Hernandez and Minimed for negligence, alleging Minimed was vicariously liable under respondeat superior for Hernandez’s driving.

## Issues

1. Whether the going-and-coming rule bars respondeat superior liability for a collision occurring during an employee’s drive home after becoming sick from workplace pesticide exposure.
2. Whether an employee’s work-caused impairment that foreseeably creates a danger to others can place the commute within the scope of employment for vicarious liability purposes.
3. Whether summary judgment was proper where evidence supported a factual dispute about work-related causation and foreseeability of the resulting driving risk.

## Decision

- The Court of Appeal reversed the summary judgment for Minimed and remanded.
- The court held the going-and-coming rule did not apply as a matter of law where the alleged risk to the public arose from a work-related condition created by the employer’s enterprise.
- The court concluded there were triable issues as to whether Hernandez’s pesticide exposure caused impairment and whether a driving accident was a generally foreseeable consequence of that enterprise risk.

## Legal Principles

- Respondeat superior may impose liability for employee torts within the scope of employment, regardless of the employer’s direct negligence or control over the specific act.
- The going-and-coming rule generally places ordinary commuting outside the scope of employment because the employment relationship is treated as suspended during the commute.
- An exception may apply when the employee endangers others with a risk arising from or related to work; the inquiry is whether the risk is a generally foreseeable consequence of the enterprise.
- For vicarious liability foreseeability, the question is whether the conduct and resulting loss are not so unusual or startling that it would be unfair to treat the loss as a cost of doing business.
- Work-related conduct can remain within the scope of employment even if it is personal in nature (including acts related to the employee’s health and welfare while at work) and even if the conduct provides no benefit to the employer.

## Conclusion

The court held that a commute may fall outside the going-and-coming rule when an employer-created, work-related condition foreseeably impairs an employee and turns the employee into a danger to others on the drive home; because factual disputes remained on causation and foreseeability, summary judgment for the employer was improper.


Bussard v. Minimed, Inc., 105 Cal. App. 4th 798 (Cal. Ct. App. 2003)