Carnes v. Phoenix Newspapers, Inc. (CA1 4/7/11)

Plaintiff here tries and fails to dent the coming-and-going rule.

Driving home after finishing deliveries, the newspaper’s delivery lady hit and killed Carnes. The newspaper moved for summary judgment because she wasn’t in the course and scope at the time. It relied on the coming-and-going rule: in Arizona, you’re not in the course and scope driving to and form work. But Carnes looked at some worker’s comp cases and found the “employer’s convenience” rule: if the employer makes you use your own car, the trip to and from work is in the course and scope. That’s the tort rule in California; it has not been used in tort in Arizona. The question was whether it should be.

The trial court granted summary judgment; this opinion affirms.

Workers’ comp doctrines can be considered in tort when they are consistent with respondeat superior. The Court of Appeals decided that the employer’s convenience rule isn’t. The key to respondeat superior is control. The employer’s convenience doctrine would impose liability on the employer for actions over which it had no actual control or right of control. The court rejected California’s approach “because the doctrine of respondeat superior in California is based substantially on the concept of enterprise liability” rather than on control.

We quoted that sentence correctly, by the way – the court didn’t italicize respondeat superior. It’s interesting to discover that “respondeat” is now an English word.

(link to opinion)