Special Risk Doctrine to Establish California Employer's Liability to a Third Party

Special risk doctrine has been applied to establish an employer's liability to a third party on the basis of respondeat superior. In Depew v. Crocodile Enterprises, Inc. (1998) 63 Cal.App.4th 480, the court assumed without deciding that the doctrine applied in order to reach the issue of causation. (Id. at p. 488.) But it acknowledged that the "special risk" exception was a creation of the workers' compensation system and had not been applied to third party claims against an employer based on respondeat superior. (Id. at p. 487.) It recognized that workers' compensation law is not controlling with respect to exceptions to the going-and-coming rule in the context of respondeat superior and discussed the distinct policy considerations underlying the workers' compensation system and respondeat superior law. (Ibid.) "'Workers' compensation law takes a different approach to exceptions to the going-and-coming rule . . . . . . Workers' compensation and respondeat superior law are driven in opposite directions based on differing policy considerations. Workers' compensation has been defined as a type of social insurance designed to protect employees from occupational hazards, while respondeat superior imputes liability to an employer based on an employee's fault because of the special relationship. . . . Further, courts heed statutory admonitions for a liberal construction favoring coverage in workers' compensation cases which are not present in respondeat superior law.' (Blackman v. Great American First Savings Bank (1991) 233 Cal.App.3d 598, 604-605; accord, Anderson v. Pacific Gas & Electric Co. (1993) 14 Cal.App.4th 254, 259); See also: Perez v. Van Groningen & Sons, Inc. (1986) 41 Cal.3d 962, 967, fn. 2 workers' compensation cases not controlling when liability predicated on respondeat superior principles; Bailey v. Filco, Inc. (1996) 48 Cal.App.4th 1552, 1562 same; Wank v. Richman & Garrett (1985) 165 Cal.App.3d 1103, 1110-1111 distinguishing between 'course of employment' test used in workers' compensation cases and more narrow 'scope of employment' test used under respondeat superior doctrine.)" (Depew, supra, 63 Cal.App.4th at pp. 487-488.)