1. What was Marsh’s theory of the case as to why they shouldn’t be liable for Bamberger’s negligence? Do you agree or disagree?

2. Where should the law draw the line between a “minor” deviation and one which takes the employee out of their scope of employment? 

3. What kind of public policy reasons support (1) the general going-and-coming rule and (2) the incidental benefit exception? Should employers have to pay for the negligent acts of employees even where employers have taken all reasonable care to prevent any accident? Should the relative resources (i.e.,deep pockets) of the potential defendant matter in this case (Marsh’s assets versus Bamberger’s personal assets)?

Bamberger was employed by Marsh as a salesperson which required her to pro-vide educational seminars, make presentations, and become involved with civic organizations such as the chamber of commerce and the Rotary Club. She met with prospective clients, typically at their location and convenience, and meetings could occur before, during, and after regular work hours. To reach these various destinations, Marsh required Bamberger to use her personal vehicle. Two to five times a week, Bamberger used her personal vehicle to attend off-site appointments and meetings. She also used her personal vehicle to transport Marsh executives, clients, and co-employees to offsite meetings, appointments, and seminars.

At the end of the workday on April 15, 2010, Bamberger planned to stop on the way home for some frozen yogurt and, thereafter, to attend a 6:00 p.m. yoga class. While still at work, she changed clothes from business attire to activewear. She also packed her laptop and other sales materials in a briefcase and took them with her in her car. On her way to a frozen yogurt shop, she was involved in an accident with Moradi who was riding a motor-cycle. Moradi filed a negligence suit against Bam-berger and against Marsh as Bamberger’s principal employer under a theory of respondeat superior. Marsh defended on the basis that it was not liable for Bamberger’s negligence because, at the time of the collision, Bamberger was neither at work, nor working, nor pursuing any task on behalf of her employer but was pursuing personal interests, namely, going to yoga class and stopping for yogurt on the way.

The Court of Appeals of California ruled in favor of Moradi because it determined that Bamberger’s trip from the office to her home fell into the exception to the general “going and coming” rule. The court pointed out that the rule generally exempted an employer from respondeat superiorliability for any tortious acts committed by employees while on their way to and from work because employees are said to be outside the scope of employment during their daily commute. However, an exception to this rule exists when the employee’s use of her own car gives some incidental benefitto the employer. The court ruled that Marsh’s conditions of employment required regular use of her personal car for company business. Among other factors, the court cited Bam-berger’s regular use of the car to visit clients, other sales-related uses, and her plans to use the car the next day to drive directly to a client appointment as evidence that Marsh gained an incidental benefit from use of the car. The court also ruled that Bamberger’s route home via the yogurt shop and yoga class was a minor deviation and did not relieve Marsh of respondeat superiorliability.

Exception to the Going-and-Coming Rule “A well-known exception to the going and-coming rule arises where the [employee’s] use of [his or her own] car gives some incidental benefit to the employer. . . . The exception can apply if the use of a personally owned vehicle is either an express or implied condition of employment . . . , or if the employee has agreed, expressly or implicitly, to make the vehicle available as an accommodation to the employer and the employer has ‘reasonably come to rely upon its use and [to] expect the employee to make the vehicle available on a regular basis while still not requiring it as a condition of employment.’”

“In addition, Bamberger’s planned deviation was necessary for her comfort, convenience, health, and welfare. [W]e can think of no conduct more predictable than an employee’s stopping [for something to eat or taking an exercise class] .  .  . on the way home. Where, as here, the trip home is made for the benefit of the employer, . . . accidents occurring during such minor and foreseeable deviations become part of the ‘inevitable toll of a lawful enterprise.’ It would have been unreasonable and inconvenient for Bamberger to drive all the way home, stop momentarily, turn around, and drive back to the yogurt shop and the yoga studio.”