Carnes v. Phoenix Newspapers, Inc.
227 Ariz. 32
| Ariz. Ct. App. | 2011Background
- Carnes sued Phoenix Newspapers, Inc. and Stephanie Sebastian for wrongful death after a bicycle collision caused by Sebastian while returning home from newspaper delivery.
- Sebastian delivered newspapers for PNI December 2003–October 2006 using her own vehicle; PNI supplied the delivery route and a soft book device but did not control her commuting.
- Sebastian finished deliveries around six to seven in the morning; the accident occurred about one mile from her home, after she had completed her route.
- The trial court granted summary judgment to PNI under the going and coming rule, holding the employer not liable for acts occurring during commuting.
- Carnes argued for application of the employee’s own conveyance rule (an exception to going and coming) or, alternatively, a factual dispute precluding summary judgment.
- The Arizona Court of Appeals affirmed, holding the going and coming rule applied and the employee’s own conveyance rule is not adopted in tort.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether going and coming rule bars vicarious liability | Carnes contends Sebastian was within scope due to employer control or incidental benefit. | PNI argues Sebastian was commuting and not controllable by PNI at the time. | Going and coming rule applies; no control by PNI during commute |
| Whether employee's own conveyance rule should apply in tort | Carnes urges exception to go-and-come to impose liability. | Sebastian's commute not within scope; rule not adopted in torts by Arizona courts. | Rule not adopted in tort; would expand liability |
Key Cases Cited
- State v. Superior Court (Schraft), 111 Ariz. 130 (1974) (defines going and coming scope test for employer liability)
- Robarge v. Bechtel Power Corp., 131 Ariz. 280 (App. 1982) (scope tied to employer's right to control during tort)
- Ray Korte Chevrolet v. Simmons, 117 Ariz. 202 (App. 1977) (employee conduct to/ from work contemplated by employment; distinguishable)
- Harris v. Indus. Comm'n, 72 Ariz. 197 (1951) (recognizes going and coming rule to limit employer liability)
- Martin v. Indus. Comm'n, 73 Ariz. 401 (1952) (employment-created necessity for travel considered in workers' comp context)