By Jeffrey W. Peters, Esq.

The Maine Law Court recently issued an opinion on an employer’s liability for an employee’s accident while traveling to and from work that significantly increases the chances of employers being sued for car accidents during an employee’s commute.  In Spencer v. V.I.P., Inc., the Court held in a split decision that a jury must decide whether an employer is liable for an employee’s accident during his or her travel to and from a work site.  This decision marks a major change in employer liability in Maine.

In this case, a V.I.P. Inc., (“VIP”) employee volunteered to help set up an off-site promotional event for VIP.  He worked for about an hour at the event, and then drove home.  The employee received $25 cash and a t-shirt for volunteering.  Unfortunately, he caused a fatal car accident during his drive home.  The relatives of the person who was killed in the accident brought a lawsuit naming the employee and VIP as defendants.   

In Maine, an employer can be held responsible for the actions of an employee only if the actions occur within the scope of the employee’s employment.  An employee is considered to be acting in the scope of his employment if the following three criteria are met:

(1) The action is of the kind he is employed to perform;

(2) The action occurs substantially within authorized time and space limits, and;

(3) The action is actuated, at least in part, to serve the employer.

The trial court granted VIP’s motion for summary judgment on the basis that commuting is not in the scope of employment, and, therefore, VIP could not be held liable for the accident.  The Maine Law Court reversed the trial court, and the question of VIP’s liability for the accident is now a question for a jury.

Traditionally, commuting has not been considered “within the scope of employment” and, in Maine, as almost every other state, employers have not been held liable for the actions of employees during their travel to and from work.  This universal rule is often referred to as the “going and coming rule.”  However, in this instance, a majority of the Maine Law Court abandoned this rule and concluded that the question of whether the employee’s travel from the event was in the scope his employment is a question of fact that cannot be decided at summary judgment.  It found that the $25 payment “was intended, at least in part, as compensation” and that this indicated that the travel was a task VIP employed the employee to perform.  The Court also found the employee’s receipt of workers compensation for his injuries further evidence that the travel was part of his employment.  The Court found the second element satisfied on the basis that the travel “occurred at the time reasonably expected – i.e., immediately before and after [the employee] completed his set-up work.”  The Court also concluded that the set-up work could be found to have served VIP.  Concluding that a jury could find all necessary elements to establish that the employee was acting “within the scope of employment”, the Court held that summary judgment was not proper. 

This decision increases the likelihood that plaintiffs will name employers in any case brought as a result of an accident during an employee’s travel to and from work.  The minority decision of the Law Court emphasized the possible far-reaching effects of this decision by noting in the opening of the dissent that “the decision of the court today may ultimately cause employers to become the insurer for all harm caused on the highways by their employees while driving to or from work.”  No longer can employers rely on the rule that an employee traveling to or from work is responsible for his own actions.  In light of this decision, employers should review and consider their policies and practices regarding employee travel.  It is clear that if an employee receives any compensation, even a stipend, for travel, and the travel happens immediately before or after a work period, it is increasingly likely that parties injured by the employee’s actions during that travel will pursue claims directly against the employer.