Is It Time to “Clock Out” in Nevada? Avoiding Appellate Challenges to the “Going and Coming Rule”

Author: Margaret Sedy

Guest Editor: Alexander Nguyen

December 3, 2018 9:00am

In an unpublished decision on November 20, 2018, the Court of Appeals of Nevada affirmed a Clark County district court’s order granting summary judgment regarding the “going and coming rule.”  Kay v. JRJ Investments, Inc., DBA BMW OF Las Vegas (No. 74324-COA) 2018 WL 6133883.

Plaintiff was riding his bicycle in front of BMW of Las Vegas when a dealership employee drove out of the dealership’s driveway and allegedly struck plaintiff.  Plaintiff sued the dealership employee, Auto Nation, Inc., and JRJ Investments, Inc., d/b/a BMW of Las Vegas (“BMW”) for negligence, negligent entrustment, and respondeat superior, asserting the dealership employee was driving a company car when he negligently struck plaintiff.

After the parties settled the claims against the employee and Auto Nation, as well as the negligent entrustment claim against BMW, BMW moved for summary judgment on the remaining respondeat superior claim, arguing the dealership employee was not under its control or working in the course and scope of his employment at the time of the accident. The district court granted summary judgment in BMW’s favor.

On appeal, plaintiff contended the district court erred in granting summary judgment, arguing that whether the employee was under BMW’s control and acting in the scope of his employment at the time of the accident was a question of fact for the jury.

The Court of Appeals of Nevada disagreed that summary judgement was improper under the particular facts of this case.

The Court of Appeals reiterated Nevada’s legal framework of respondeat superior:  To prevail on a theory of respondeat superior, the plaintiff must establish both (1) the employee who caused the injury was under the employer’s control and (2) the act occurred within the scope of the employment.  While conceding this generally presents a question of fact for the jury, the Court of Appeals explained summary judgment may nevertheless be appropriate when undisputed evidence establishes the employee’s status at the time of the incident.

The Court of Appeals further highlighted that critical to its decision was Nevada courts’ long recognition of the “going and coming rule,” which provides the tortious conduct of an employee in transit to or from the place of employment will not expose the employer to liability, unless there is a special errand which requires driving.

At first glance, it is interesting and curious how a case such as this one even made its way to a Court of Appeals, particularly given the district court held the undisputed evidence established the employee was on a break at the time of the accident, in his personal vehicle, and leaving the premises to purchase of cup of coffee for himself. Furthermore, the Court of Appeals emphasized that critical to its review and decision was nothing in the record suggested the employee was engaged in a special, job-related errand that required driving or furthered BMW’s business interests.  Nor did the evidence suggest BMW had control over the employee while he was physically out on his break, as he was not a salaried employee, was not paid during his break, did not receive reimbursement for travel, and BMW did not direct him to get coffee.

Despite this seemingly straightforward factual application to Nevada’s “going and coming rule,” the case nevertheless found its way to the Court of Appeal; and plaintiff currently has the opportunity to seek review by the Supreme Court of Nevada.

So, how did this case end up on appeal?

In his briefing, plaintiff argued not only were there disputed material facts for which the jury must ultimately decide genuine issues, but the evidence in fact uniformly supports the conclusion the employee was indeed under BMW’s control at the time of the accident.

Relevant to plaintiff’s argument was the evidence, through witness testimony, showed 1) the employee did not have “sole discretion and control to take a break when he did” and 2) BMW’s company policy required an employee to clock out when “not actively engaged in performing whatever their responsibilities are in their particular roles for the dealership, they should be off the clock.”  According to defendant’s witnesses and documentary evidence, the employee clocked in at 8:20 am and didn’t clock out until 10:01 pm – equating to 13.68 hours of on-the-clock duty, which included the accident at 10:54 am that day. Put simply, the dealership’s employee was not authorized by the company to take what the district court categorized as a “personal break” at the time that he did, and moreover, never clocked-out, in violation of company policy.

In Reply, defendant argued the district court was correct in finding the employee was on a “personal break” when driving off the dealership’s property to a nearby popular coffee spot to get coffee for himself and therefore not subject to his employer’s control or supervision at the time of the accident.  Defendant further argued summary judgment was properly granted in its favor because the employee was not performing any workplace duties or conducting any business whatsoever for the dealership at the time the accident took place, and therefore was not within the scope of his employment with BMW.

Takeaway

While this should have been a straightforward, simple analysis under Nevada’s long-standing “going and coming rule,” the case nevertheless made its way to the Court of Appeals and there is still time for plaintiff to file an appeal with Nevada’s highest court.

As such, it is apparent plaintiff’s arguments and evidence do not miss the mark, entirely.  Employers may want to revisit their own company policies with respect to whether the company dictates when an employee is authorized to take a “personal break” and more critically, ensure it is adhering to and enforcing its own company policies with regard to when an employee is required to “clock out.”  While BMW has thus far won the battle, it remains to be seen whether they are out of the woods completely or if they will have to face the Supreme Court’s judgment. And while it is not unlikely the Nevada Supreme Court will similarly hold in BMW’s favor, it will surely come with an even higher price tag in the form of legal fees and costs.

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