Torts II, Pages 706–708

Bussard v. Minimed, Inc.

California Court of Appeal, 2003


Minimed hired a pest control company to spray pesticide overnight to eliminate fleas at its facility. The next morning, Minimed's employee Hernandez arrived for work and noticed a smell similar to Raid. She soon felt and ill and asked to go home. Her superiors asked if she needed to see the company doctor and if she could drive home, but Hernandez insisted that she could drive fine. Eight other workers soon followed suit. On her way home, Hernandez rear-ended plaintiff, who was stopped at a red light. Plaintiff sued Minimed under the doctrines of vicarious liability and respondeat superior.

Defendant's Argument:

The "going-and-coming" rule meant Hernandez was not within the course and scope of her employment when going home.

Procedural History:

Trial court granted Minimed summary judgment.


Could Minimed be liable under the doctrine of respondeat superior?


  • LexisNexis IconWestLaw LogoGoogle Scholar LogoPage 706

    Under the doctrine of respondeat superior, an employer is ordinarily liable for the injuries its employees cause others in the course of their work. Respondeat superior imposes liability whether or not the employer was itself negligent, and whether or not the employer had control of the employee.

  • LexisNexis IconWestLaw LogoGoogle Scholar LogoPage 706, Bottom

    [A]cts necessary to the comfort, convenience, health, and welfare of the employee while at work, though strictly personal and not acts of service, do not take the employee outside the scope of employment. Moreover, '"where the employee is combining his own business with that of his employer, or attending to both at substantially the same time, no nice inquiry will be made as to which business he was actually engaged in at the time of injury, unless it clearly appears that neither directly nor indirectly could he have been serving his employer."' It is also settled that an employer's vicarious liability may extend to willful and malicious torts of an employee as well as negligence. Finally, an employee's tortious act may be within the scope of employment even if it contravenes an express company rule and confers no benefit to the employer.

  • The going-and-coming rule says that commute to and from work is outside the scope of one's employment.


    The going-and-coming rule does not apply when an employee endangers others with a risk arising from or related to work. This is determined by if it "was a generally foreseeable consequence of the activity." The conduct is foreseeable if it is not so startling or unusual that it would seem unfair to include the loss as part of the employer's cost of doing business.


Hernandez suffered pesticide exposure at work, to which she attributed her illness and impaired driving. This is not a startling or unforeseeable event. Therefore, the trial court erred in applying the going-and-coming rule.


Yes, Minimed could be held liable under the doctrine of respondeat superior. Reversed with costs.