Limiting Employer Vicarious Liability For Pandemic-Related Work-From-Home Employees and Overview of Post-Summary Judgment Appellate Options

April 1, 2022

Colonial Van & Storage, Inc. v. Superior Court 2022 Cal.App.LEXIS 226 (Colonial Van) was decided March 18, 2022 and clarifies some evolving and novel standards of an employer’s liability for employee conduct while they are working from home in a pandemic-driven landscape.

In Colonial Van, the dispatcher of a moving company worked from home and often had co-workers in her home for social and work-related reasons.  The dispatcher’s husband was a sales representative from the same company.  They hosted a dinner party attended by another Colonial employee and non-employees and they engaged in some unspecified “job-related tasks.”  The dispatcher’s troubled son then began shooting a handgun into the kitchen, killing the sales representative and wounding others.

Separate lawsuits were filed by the wounded Colonial employee and the wounded non-Colonial employee against Colonial and its employee, dispatcher, host.  Plaintiffs alleged Colonial was liable via respondeat superior, negligent supervision of the dispatcher and intentional infliction of emotional distress.  Colonial moved for summary judgment claiming it had no duty to the injured dinner party patrons, as it did not own, possess or control the premises and on the basis the shooting was unforeseeable.  The Court denied the motion and Colonial filed a writ in the Fifth District Court of Appeal.

The Court of Appeal granted writ relief, which is rare, and occurred because the writ raised an important and novel question.  Ultimately, Colonial prevailed as the Appellate Court decided “an employer does not have a duty to protect working-at-home employees from third party criminal conduct as a matter of law.”  (Id. at 10.)  The rationale was Colonial had no authority to control the dispatcher’s home and consequently no power to exclude persons like the shooter and therefore, could not be held liable for acts it could not have prevented.  Furthermore, an employer’s “commercial benefit” from use of the home office was not a “dispositive factor” in establishing employer liability.  Finally, as to respondeat superior, the dispatcher was not in the “course and scope” of her employment in the management of her son’s mental disorder.

Colonial Van does note some limitations on its rule of non-liability and caution for employers who have employees working from home.  The Court implied that where an employer does “engage in behavior commensurate with controlling the home,” the outcome may have been different.  (Id. at 10).  Examples given were an employer designating specific work-from-home hours, providing landscaping or a security system, taking tax advantages of the home’s location or naming the home as an extended business location.  Employers should be wary of crossing the line by policies requiring improvements to the work-from-home setting, requiring storage of employer materials at the homesite, reimbursing rent expenses, mandating meetings at the homesite or other policies that involve “dramatic assertion of a right normally associated with ownership or at least possession.”  (Id.)  Furthermore, employers should consider a carefully drafted employee handbook update delineating the lines of responsibility and potential implications of designating the employer as an “additional insured” on homeowner or renter’s policy as needed in the various contexts.

The appellate context of Colonial Van is also nuanced.  Typically, orders denying summary judgment are not “final” and are not appealable until a final judgment is entered resolving the entire litigation, preventing “interlocutory” appeals.  (Code Civ. Proc., § 904.1(a)(1).)  However, there are two methods of immediately seeking appellate review.  First, the summary judgment statute allows for an immediate writ regardless of whether a final judgment has been entered.  (Code Civ. Proc., § 437c, subd. (m), with 20-day deadline).  Second, the moving party may ask the trial court to designate the order appealable upon a finding “there is a controlling question of law as to which there are substantial grounds for difference of opinion, appellate resolution of which may materially advance the conclusion of the litigation.”  (Code Civ. Proc., § 166.1.)  On some summary judgment issues, like the “negligence duty” in Colonial Van, appellate review is especially desirable because there is an opportunity to have the appellate court apply “de novo” review without any deference to the trial court’s prior decision.  (Colonial Van, supra, at p. 7.) 

Writ review is also quite expeditious.  For example, in Colonial Van, the writ was filed August 21, 2020 and the Fifth District Court of Appeal issued an order that the trial court should “show cause... why the relief prayed for... should not be granted” by November 5, 2020, or 76 days later.  Appeals on the other hand are known to take years.

In summary, Colonial Van is a significant precedent for defining the scope of an employer’s respondeat superior liabilities for work-at-home employees and it also highlights the remaining viability of summary judgment if trial court proceedings are not favorable.

Gabriel Ullrich is a Senior Associate in the Firm’s Sacramento office. He can be reached at (916) 483-5181 or