The Coming and Going Rule

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In 2002, an employee of V.I.P., Inc. volunteered to work at a weekend promotional event at the Oxford Plains Speedway, which V.I.P. sponsored. The employee was given $25 and a t-shirt. On his way home from the event, the employee crossed into the oncoming lane of traffic, killing one person and injuring two others.

The Superior Court granted summary judgment. But the Law Court reversed. The Court explained that, under Maine law, an employee’s activity is within the scope of his employment where “(a) it is of the kind he is employed to perform; (b) it occurs substantially within the authorized time and space limits; and (c) it is actuated, at least in part, by a purpose to serve the master.” Spencer v. V.I.P., Inc., 2006 ME 120, ¶ 3 910 A.2d 366. The Court held that, under the circumstances of this case, whether these factors were satisfied was a question for the jury.

Spencer was a 3-2 decision. The dissent criticized the majority for failing to apply the “coming and going” rule—that is, the “universally acknowledged . . . general rule” that “an employee is not within the scope of employment while commuting to and from work.” Id. at ⁋ 16.

It may seem odd that Maine does not recognize the “coming and going” rule in tort cases. But as the Spencer dissenters noted, even in jurisdictions where the “coming and going” rule is nominally recognized, it is not without exceptions.

Indeed, even in states where the “coming and going” rule normally applies, it is often not easy to determine whether, under a specific set of facts, the “general rule” on “coming and going” applies. As Judge Posner explained in Konradi v. U.S., 919 F.2d 1207 (7th Cir. 1990), “[t]he rub is ‘normally’ . . . this weasel word is definitely required for the sake of accuracy.” Konradi v. United States, 919 F.2d 1207, 1209 (7th Cir. 1990). As Judge Poster notes, is that “[i]t is impossible to find the pattern in th[e] carpet” of case law “without a conception of what the law is trying to accomplish” with the doctrine of vicarious liability. Id. at 1210. In short, because “‘scope of employment’ can be functionally defined by reference to the likelihood that liability would induce beneficial changes in activity,” an employer should be responsible for an employee’s coming and going only where placing the burden on the employer would tend to “induce the employer to consider activity changes that might reduce the number of accidents.” Id. at 1213.

Our recent case, Rollins-Allen v. Northern Clearing, Inc., 1:21-cv-00343-JDL, 2023 U.S. Dist. LEXIS 167939 (D. Me. Sep. 21, 2023), demonstrates the complexity of determining the contours of vicarious liability for commuters. There, a heavy equipment mechanic employed by an out-of-state clearcutting company crashed into our client’s vehicle while commuting to work. Our client was catastrophically injured, and tragically, her husband—high school sweetheart and the love of her life—died. The mechanic was driving a commercial truck, equipped with a built-in crane and welding machine, that he used at work. The truck was his own, but he leased the vehicle to his employer during the workday. At work, it served as a mobile mechanic workshop and the company provided gas for it.

Northern Clearing moved for summary judgment, arguing it was not responsible for their driver’s conduct under either Spencer or the “coming and going rule.” On September 21, 2023, Chief Judge Levy denied Northern Clearing’s motion, holding that under both Spencer and the “coming and going rule,” the issue of vicarious liability was reserved for the fact finder.

In Maine, we ostensibly do not recognize the “going and coming” rule. But we believe that, whether you call it the “going and coming” rule or the Spencer rule, the principles articulated by Judge Posner in Konradi best explain what the law is trying to do: determine whether, and under what circumstances, holding an employer responsible for an employee’s commute will reduce the number and seriousness of accidents on our roads.