Hernandez and the Ever-Growing Going and Coming Rule
December 2025
Over the years, the “Going and Coming Rule” has often been defined more by its exceptions than by the rule itself. The rule states that an injury occurring off the employer’s premises during an employee’s normal commute to or from work is not compensable. However, there are many exceptions to this general rule which have developed since the rule was established by the California Supreme Court in the 1916 case of Ocean Accident and Guarantee Co. v. IAC 173 Cal. 313. In many cases, the going-and-coming rule proved too strict a bar to an injured worker’s recovery, so exceptions served to allow for compensability in situations where the employee is off-premises, but still acting in their capacity as an employee, directly serving the interests of the employer, or exposed to a risk during the commute due to the employment.
This year, the California Court of Appeal had occasion once again to examine the exceptions to the going-and-coming rule in the case of Zenith Ins. Co. v. WCAB (Hernandez) (2025) 110 Cal.App.5th 1164, and in a win for the defendant, significantly reduced the scope of one of its largest exceptions.
Exceptions to Rule
As noted previously, there are many exceptions to the general going-and-coming rule, and many of them are common sense. For example, where an employer controls or provides the employee’s transportation, such as a company car or arranged transportation, injuries that occur during the commute are compensable. The reasoning behind the exception, and behind many of the exceptions as we will see, is that the transportation is incidental to the employment. Courts have also held that providing transportation to the employee exposes the employee to a danger which is solely arising out of the employment.
Similarly, where a vehicle is required for the work, such as for travel between worksites, or traveling to a separate location from the employer’s premises, injuries that occur during the commute as well as to all separate work-related locations are compensable. Notably, injuries that occur during the course of carpooling arrangements with no employer involvement or participation, have generally been found to be non-compensable.
Other exceptions run the gamut, such as wearing a uniform during travel, transporting work tools or supplies, or running an errand or “special mission” for the employer. However, the court in Hernandez examined one large exception to the rule that has frequently been used to find compensability during an injured worker’s commute: the special risk, or “zone of danger” exception. This rule states that an injury is compensable during an employee’s commute if the employee was placed at greater risk for injury than the general public by virtue of their employment. This has famously been found to apply where a worker was injured making a left turn across multiple lanes of traffic to enter the employer’s premises, because this was not a risk shared by the general public and was unique to this company’s employees. (Greydanus v. I.A.C. (1965) 63 Cal. 2d 490). This exception applies where the injury would not have occurred “but for” the employment, and the risk is “distinctive in nature or quantitatively greater than risks common to the public.” (General Insurance Co. of America v. WCAB (Chairez) 41 Cal.Comp.Cases 162, 165). Importantly, however, this rule has most often been applied in the context of injuries occurring “just outside the employer’s premises.” (Price v. WCAB (1984) 37. Cal.3d 559, 566).
Facts of Hernandez and Application of the Zone of Danger Exception
In Hernandez, supra, the applicant was injured while taking part in a “vanpool” with other coworkers. This vanpool was not organized by the employer but was arranged by one of the applicant’s co-employees who held himself out as a “supervisor” for the employer to motivate workers to use the vanpool.
The vehicle crashed in Yolo County on the way to the jobsite in Yuba City, causing catastrophic injuries to the applicant, including a leg amputation. The applicant’s claim was denied by the employer pursuant to the going-and-coming rule.
At the trial level, the WCJ found that neither the employer-controlled-transportation nor the “benefit to the employer” exceptions were applicable to bar the claim as the employer did not arrange for or control the vanpool, but the WCJ did find that applicant’s claim fell within the special risk exception to the going and coming rule. The WCJ reasoned that the employer decided to hire a worker who did not have a way to get to work, and had no driver’s license, requiring him to make special arrangements that “exposed him to a particular risk…not shared by the general public.” In essence, the WCJ argued that the applicant’s commute was longer and therefore more dangerous than what would be shared by the general public, as the worksite was 60 miles from the applicant’s home.
The defendant petitioned for reconsideration which was denied by the Workers’ Compensation Appeals Board (WCAB) who adopted the trial judge’s report and recommendation. The defendant filed a petition for writ of review with the Court of Appeals which was granted.
Court of Appeal Reverses; Commute Did Not Subject Applicant to “Special Risk”
The Court of Appeal did not agree with the two lower courts, and found that the applicant’s injury did not fall under the “zone of danger” or special risk exceptions to the going-and-coming rule.
The Court first noted that the rule typically only applies in injuries within a “zone of employment, varying in distance, measured by the special circumstances of each case.” The Court explained that the application of this rule follows a two prong test: 1) if “but for” the employment, the employee would not have been at the location where the injury occurred and 2) if the risk is distinctive in nature or quantitatively greater than risks common the public.”
The Court found that neither the WCAB nor the applicant provided justification as to why that zone could be expanded to cover the “entire commute.” Here, the Court argued, the injury occurred nearly 30 miles away from the employer and was not just outside of the employer’s premises. Furthermore, the Court found that special risks created by the vanpool situation were unique to the employee, “and not any circumstances of the employment over which…the employer had any knowledge or control.” Specifically, the Court found that the going and coming rule has generally applied as a bar to employees who make their own rideshare or carpooling arrangements.
Finally, the Court reasoned that lower courts’ logic on application of the special risk or zone of danger exceptions would stretch the exceptions “far beyond prior case law…that could…apply any time an employer hires a person without a driver’s license or a car.” The Court sided with defense and found the applicant’s claim was barred by the going-and-coming rule, and was not subject to any exceptions.
The Court of Appeals’ decision puts a significant limit on the scope of the special risk or zone of danger exception, as the lower court’s ruling would have expanded the rule to cover nearly all carpooling injuries, even where the employer has no awareness or control over the arrangements. While this ruling is highly fact-specific, and practitioners should always be aware of the various exceptions which could apply, the Court’s ruling should help defendant’s in future cases, as the landscape of our remote or distant work environments in California continue to change.
Written By:
Mark Turner, Esq., Partner, of our LFLM-Sacramento Office
Laughlin, Falbo, Levy & Moresi, LLP.