Bingener v. City of Los Angeles, 44 Cal. App. 5th 134 (2019)

Kim Rushton, an employee of the City of Los Angeles, struck and killed a pedestrian (Ralph Bingener) while Rushton was driving to work at the Hyperion Treatment Plant. Bingener’s survivors sued the city on the theory that Rushton was a danger to others based upon a risk arising from or relating to work (Rushton had a job-related back injury for which he was taking medication that allegedly rendered him unfit to drive). Plaintiffs contended that the city was obligated to review Rushton’s workers’ compensation file and reach a decision whether he could safely drive a vehicle. The trial court disagreed and granted summary judgment to the city based upon the “going and coming” rule; the Court of Appeal affirmed, holding that “the undisputed fact [is] that it was a physician, and not the city, who approved Rushton to return to work and did so without limitation on his driving.” Cf. Alaniz v. Sun Pac. Shippers, L.P., 2020 WL 562381 (Cal. Ct. App. 2020) (hirer of independent contractor was not liable for injuries to contractor’s employee absent evidence of hirer’s negligent exercise of retained control over safety conditions).