Illinois: Workers’ Comp’s “Traveling Employee” Rule May Not Be Expanded to Tort Arena

Under workers’ compensation law’s so-called “going and coming” rule, for an employee having fixed hours and place of work, injuries sustained en route to or from the workplace are generally not compensable; the ordinary commute is not within the ordinary course and scope of the employment [see Larson’s Workers’ Compensation Law, § 13.01, et seq.]. The decisions in most disputed “going and coming” cases often turn on whether the employee is sufficiently close to the employer’s property or premises that the risk of injury is appropriately deemed to be a risk of employment. Can, for example, the idea of “premises” be extended beyond the front door to the sidewalk, to the parking lot, or to the dangerous left-turn that employee’s must manage as they enter the company’s general locale?

So much attention is sometimes given to the “going” and the “coming” aspects of a particular employee’s situation and, alternatively, to the boundaries of the employer’s premises, that a practitioner can forget that the rule doesn’t typically apply unless the employee has “fixed hours and place of work.” Thus, if the employee’s duties require that the employee routinely travel away from the employer’s premises, the rule barring recovery for injuries sustained during travel to and from the employer’s work site does not usually apply; such injuries may be compensable under the so-called “traveling employee” rule [see Larson, § 25.02]. The traveling employee rule acknowledges that the course and scope of the employment is expanded or extended where the travel itself becomes part of the employee’s work.

Can “Traveling Employee” Rule Be Used in Tort Action?

If, for purposes of workers’ compensation law, the course and scope of the employment of the traveling employee is broadened or expanded so as to make injuries sustained by that employee during the travel time compensable, does it also follow that the course and scope of the employment is similarly expanded in those same circumstances so as to make the employer liable, under the doctrine of respondeat superior, to a third party for injuries sustained as a result of the negligence of the traveling employee? Drawing a careful distinction between the purpose behind the state’s Workers’ Compensation Act and the purpose supporting the separate doctrine of respondeat superior liability, an Illinois appellate court recently answered the question negatively [Pister v. Matrix Serv. Industrial Contractors, Inc., 2013 Ill. App. LEXIS 600 (Sept. 6, 2013)].  

Factual Background of the Case

In April 2009, a vehicle driven by Stultz struck the vehicle of Jeffrey Pister, resulting in the death of both men. An autopsy revealed Stultz had oxycodone in his system. At the time of the accident, Stultz was nearing his destination in Champaign, Illinois, where he was scheduled to work later that morning for the defendant. Pister’s widow subsequently filed a tort action against the defendant and the estate of Stultz, contending in relevant part that the defendant employer was liable for Pister’s death under the doctrine of respondeat superior. Pister set forth two theories of liability: (1) that Stultz was a “traveling employee” of the defendant; and (2) that Stultz was on a “special errand” for the defendant at the time of the accident. As to the first issue, the court, pretrial, granted summary judgment for the defendant, finding that the theory was restricted only to workers’ compensation cases. As to the “special errand” theory of liability, the jury returned a verdict in favor of the defendant. Pister appealed.

Appellate Court’s Reasoning

Noting that the parties had acknowledged that the traveling employee rule had only been applied in workers’ compensation cases, the appellate court indicated it would not extend the rule to respondeat superior cases. The court observed that the purpose of the Workers’ Compensation Act is to provide financial protection for employees who incur broadly defined work-related injuries, but that the same could not be said for respondeat superior cases. The latter category of cases assign liability to employers based upon an employee’s negligence within the scope of employment. According to the court, the inquiry in respondeat superior cases is more limited than the “work-related injury” inquiry utilized in workers’ compensation cases. The court said that to extend the Act’s “traveling employee” principle automatically to tort liability would extend liability to an unlimited number of employers for the actions of their employees over which the employers may not have had direct control.

Rationale Applied to “Frolic” or “Detour” Cases Not Applicable

In support of her argument, Pister had cited Pyne v. Witmer, 129 Ill. 2d 351, 543 N.E.2d 1304, 135 Ill. Dec. 557 (1989). In Pyne, an employee was directed to take an evening exam to secure his certification as an automobile mechanic. More than two hours after the exam ended, the employee, by then intoxicated, got into a vehicle collision with another individual. One of the central issues was whether the employee had engaged in a “frolic” or “detour” from the employment at the time of the accident. The court indicated that because a question of material fact existed as to whether the employee had reentered the scope of employment from his “frolic” or “detour,” the Illinois Supreme Court held summary judgment was inappropriate. In the instant case, however, the appellate court added the facts here were clearly distinguishable from Pyne. According to the court, Pyne did not apply the “traveling employee” theory of liability at all. In fact, the facts in Pyne instead involved a situation more analogous to the “special errand” theory that the trial court had allowed Pister to present to the jury. Pister had already her day in court on the special errand issue, of course. The jury had ruled against her.


As observed by Arthur Larson some years ago:

Tort litigation is an adversary contest to right a wrong between the contestants; workers’ compensation is a system, not a contest, to supply security to injured workers and distribute the cost to the consumers of the product.

Larson’s Workers’ Compensation Law, § 1.03[7]

The distinction should always be kept in mind when one attempts to export a doctrine from one “arena” to the other. The issue of fault is essentially irrelevant within the workers’ compensation system. Within the tort world, however, the designation of fault is a core element in determining the respective liability of the parties. Such terms as “arising out of and in the course of the employment,” while used in both theories of law, have meanings that are not on “all-fours” with each other. I have always found it helpful to borrow a rule from the doctrine of res judicata: The classical res judicata doctrine requires identity not only of parties but of issues. In the Pister case, discussed herein, even if it had been previously determined in a workers’ compensation hearing that Stultz was within the course and scope of the employment at the time of the fatal injury, the employer would not have been barred from later contesting the issue within the tort law context. The goal of the workers’ compensation system is to determine whether or not Stultz’ survivors are due workers’ compensation benefits, not whether Pister’s survivors are to be “made whole” through a civil action.

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