Carnes v. Phoenix Newspapers, Inc. – 4/7/2011

May 4, 2011

Arizona Court of Appeals Division One Holds that Employers Cannot Be Vicariously Liable for Actions of Employees Traveling To and From Job Even When Employer Requires Employee to Use Own Vehicle For Work.

Stephanie Sebastian, a newspaper delivery person working for Phoenix Newspapers, Inc. (“PNI”), was driving home 15 minutes after her last delivery of the day when she struck and killed cyclist Wesley Carnes. Carnes’s widow filed a wrongful death action against Sebastian and PNI, alleging that PNI should be held vicariously liable because the accident happened while Sebastian was within the scope of her employment.  The trial court granted summary judgment for PNI, citing Arizona’s long-standing “going and coming rule,” which bars vicarious liability when an employee is traveling to or from a job site.  Carnes appealed the ruling.

The Court of Appeals affirmed.  The Court rejected Carnes’s arguments that Sebastian was working within the scope of her employment because a computerized device used by PNI to communicate with delivery drivers was in the vehicle at the time of the accident.  Although such a device might be used to control a delivery driver during the delivery shift, at the time of the accident Sebastian was “free to go home or wherever she might choose” and thus was not subject to PNI’s control.

The Court also declined to adopt the “employee’s own conveyance rule,” an exception to the going and coming rule that originated in workers’ compensation cases, which considers trips to and from work to be within the course of employment when the employer requires the employee to bring a personal vehicle for use during the working day.  The Court noted that the principle works well in the workers’ compensation context, where the purpose is to shift the burden of work-related injuries to the industry and community as a whole.  In contrast, the purpose of vicarious liability is to encourage employers to exercise careful supervision and control over their employees.  Although requiring employees to use their private vehicles may benefit employers, it does not give them control over an employee’s actions while traveling to and from work.  Unlike California, the element of control is key under Arizona’s respondeat superior doctrine, and thus the employee’s own conveyance rule should not be applied to vicarious tort liability.

Judge Gemmill authored the opinion; Judges Norris and Portley concurred.