Experienced. Reliable. Capable. We Look Out for You.

  • No Hidden Fees Involved
  • No Obligation to Continue Beyond the Case Review
  • Get All Your Legal Questions Answered
click here for a free consultation

Notable Case Results

  • $ $97,284,817

    Class Action
    Mortgage Broker Rest Break
  • $ 8,820,000

    Brain Injury
  • $ 8,250,000

    Wrongful Death/Personal Injury
  • $ 23,500,000

    Bank of America
    Mortgage Broker Wage Class Action



$ 8,820,000

Brain Injury Settlement

$ 8,250,000

Wrongful Death/Personal Injury

$ 23,500,000

Bank of America Mortgage Broker Wage Class Action

Touch below for a free injury consultation.

click here for a

free consultation

no fees until you get paid

Vicarious Liability and the Coming and Going Rule

Under the doctrine of respondeat superior, employers are vicariously liable for wrongs committed by employees during the course and scope of their employment. However, under the “going and coming” rule, employers are not liable for employees acts while on their way to and from work.  Employees are said to be outside of the course and scope of employment during their daily commute. However, courts have established certain exceptions to the coming and going rule.

On February 22, 2017, in Lynn v. Tatitlek Support Services, Inc., —Cal.Rptr.3d, 2017 WL 696008, the California Court of Appeal addressed the going and coming rule.  Lynn involved a case where the employer, TSSI, provided support services to the military, including realistic pre-deployment training.  TSSI hires role players to participate in military exercises.  Abdul Formoli worked as a role player for TSSI’s training services.  On August 11, 2017, Mr. Formoli was concluded his temporary position.  Despite only working from about 4 hours later on his last day, pursuant to his contract, Mr. Formoli was compensated for 8 hours of work.  At approximately 2:25 p.m., on his drive back to his home in Sacramento, California, Mr. Fromoli’s car crossed the double yellow center line and struck the vehicle of the Gail Lynn and Brian Lynn head on, killing Brian.

Gail brought a wrongful death suit alleging TSSI was vicariously liable for the acts of Mr. Formoli.  To get around the coming and going rule, Plaintiff argued three exceptions: (1) the extraordinary-commute incidental benefit exception; (2) the compensated travel-time exception; and (3) the special risk exception.

Under the incidental benefit rule, if the employer derives incidental benefit from the employee’s commute, or makes the commute a part of the employee’s work day, vicarious liability may be found for incidents occurring during the commute. Lynn, however, ruled the incidental benefit rule was inapplicable because Mr. Formoli was not required by his employer to use his vehicle.

With respect to whether Mr. Formoli was being compensated at the time the accident occurred, the Court found he was not.  It reasoned that contract, which provided for 8 hours of compensation on the final day regardless of actual hours worked, did not mean that he was working for those 8 hours.  In addition, the contract specifically stated that Mr. Formoli was not to receive “travel pay.”  Based on that, the Court rejected Plaintiff’s argument that vicarious liability should be found based on compensation for travel time.

Lastly, Plaintiff argued that the special risk exception to the going and coming rule applied based on the employer allowing exhausted, sleep deprived role players to drive home. The Lynn Court held that there was insufficient evidence that Mr. Formoli was incapable of driving safely due to fatigue.  The court noted that Mr. Formoli had a BAC of .06, that there was no evidence that he was prevented from sleeping at least 5 hours.

Lynn v, Tattilek Support Services ultimately found no exception to the going and coming rule.  It, however, provides a roadmap and summary of California law regarding how to pursue a claim of vicarious liability against an employer for an accident occurring during an employee’s commute.

Click below to share this article:

nav close icon




$ 97,284,817

Class Action / Rest Break


Bad Faith

$ 8,820,000

Brain Injury


Medical Malpractice


Wrongful Death / Accident


Construction Defect
view all

INJURED ? CALL 213-514-5681



  • The use of the Internet or this form for communication with the firm or any individual member of the firm does not establish an attorney-client relationship. Sending time sensitive material to the firm via this message, will not be the responsibility of the firm. Proceed if you've read this disclaimer.
1 Step 1
Type your name here & click nextyour full name
Phoneyour full name
Commentsmore details
0 /
Some Title
Nameyour full name
Some Title
Commentsmore details
0 /
Some Title
powered by FormCraft
All Fields Required