Vicarious Liability: Eighth Circuit Holds That Independent Contractor's Trip to the Airport and Cell-Phone Conference Call Not a Basis for "Special Errand" Exception to the Coming and Going Rule
Fackrell v. Marshall is an interesting Eighth Circuit decision arising out of a garden-variety car wreck case. The Eighth Circuit affirmed the District Court's rulings on two exceptions to the "coming and going" rule of vicarious liability.
The wreck happened at a Kansas City gas station where Marshall, an software consultant, had just topped off his rental car with gas. He was on his way to the Kansas City airport, "where he was to drop off his rental car, participate in a work-related conference call an hour before his flight, and then fly to his home in South Carolina." Marshell was an independent contractor for the co-defendant, Lombardi Software, and had been working at Sprint's corporate headquarters in Overland Park, Kansas during the week and flying home on the weekends.
The plaintiff asserted vicarious liability against Lombardi as Marshell's employer, who countered that Marshell was an independent contractor. The District Court granted summary judgment on the basis that even if Marshell was an employee, he was acting outside the scope of his employment at the time of the accident. The Eighth Circuit affirmed on the basis of the so-called "coming and going" doctrine. The coming and going doctrine, under Missouri law, holds that "getting to the place of work is ordinarily a personal problem of the employee," so employers generally are not liable for accidents that occur on the way to and from work. The Court held that the "special errand" exception did not apply.
The special errand doctrine applies when:
an employee, having identifiable time and space limits on his
employment, makes a journey which would normally fall under the
going and coming rule, but invests substantial time and trouble, or
suffers special inconvenience, hazard or urgency in making the journey
under the particular circumstances so that it can be viewed as an integral
part of the service itself.
Fackrell cleverly argued that Marshell's trip fit within this exception, but the Eighth Circuit rebuffed her argument:
Fackrell contends that Marshall’s travel fits within this exception because of the trip’s length, the inconvenience associated with Marshall’s having to be away from home during the work week, and the sense of urgency created by his expected participation in the work-related conference call. We disagree, for as part of the analysis under the special errand exception, Missouri courts have also
required that the trip be a “special errand” and have specifically stated that “‘[a] duty related trip made regularly in the course of duty is not a special errand.’” Logan, 891
S.W.2d at 545 (quoting Mayor & City Council of Baltimore v. Jakelski, 410 A.2d
1116, 1119 (Md. Ct. Spec. App. 1980) (“In this case it is clear that [the employee]
[n]ever embarked upon a special errand or mission; he was en route to a regularly
repetitive performance of one of his many duties.”)). Marshall’s trip, while significant
in length and time, was made regularly during the course of his relationship with
Lombardi. Accordingly, it cannot be characterized as a special errand under Missouri
law.
