A Special Rule. I find special rules, which exist in every area of the law, to be interesting. I like to investigate how these special rules came into being, how they developed over time, and how they can be useful in my practice. One of the special rules which applies to workmen’s compensation cases is the aptly named “coming and going” rule. This rule developed as a way to determine if the employee was within the scope of his/her employment while on the way to or going home from work.
The general rule, set out by the Court of Appeals of Virginia (CAV), is as follows: “[A]n employee going to or from the place where his work is to be performed is not engaged in performing any service growing out of and incidental to his employment.”
4 Va. App. 189, 190, 355 S.E.2d 347 (1987). However, the Virginia Supreme Court (VSC) has recognized that:
[E]mployment includes not only the actual doing of the work, but a reasonable margin
of time and space necessary to be used in passing to and from the place where the work
is to be done. If the employee be injured while passing, with the express or implied consent of the employer, to or from his work by a way over the employer’s premises, … the
injury is one arising out of and in the course of the employment as much as though it
happened while the employee was engaged in his work at the place of his performance.
209 Va. 562, 565, 165 S.E.2d 394, 397 (1969).
How have the courts applied the “coming and going” rule to real world situations involving employees who commute to work in their automobiles, find a place to park, and then make their way across all types of parking lots in all types of weather and who become injured in the process? The VSC has recognized four exceptions to the rule based on the employer’s ownership, maintenance, and control of the premises. The first three were set out in
221 Va. 600, 603-04, 272 S.E.2d 200, 203 (1980):
First: Where in going to and from work the means of transportation is provided by
the employer or the time consumed is paid for or included in the wages.
Second: Where the way used is the sole and exclusive way of ingress and egress with
no other way, or where the ingress and egress is constructed by the employer.
Third: Where the employee on his way to or from work is still charged with some duty
or task in connection with his employment.
The court later added another exception.