Rejecting the Workers’ Compensation “Going-and-Coming” Rule in Arkansas Respondeat Superior: Commentary on Skala v. Comfort Systems USA, Inc., 2025 Ark. 183
I. Introduction
In Skala v. Comfort Systems USA, Inc., 2025 Ark. 183, the Arkansas Supreme Court squarely confronted whether the workers’ compensation “going-and-coming” rule should govern employer liability in tort under the doctrine of respondeat superior.
The case arises out of a devastating highway collision in which a commuting employee, welder Cody Conboy, crossed the center line and struck a daycare transport van, killing the driver, Tammy Gardner, and five-year-old Sir Christopher Skala, and injuring three-year-old Xavior Skala. The estates of the decedents and the injured child sued Conboy and his employer, Comfort Systems USA (Arkansas), Inc., asserting both vicarious liability (respondeat superior) and direct negligence claims.
The central legal questions were:
- Whether the “going-and-coming” rule from Arkansas workers’ compensation law applies to bar tort-based respondeat superior liability when an employee is commuting; and
- Whether, on the undisputed facts, Comfort Systems was entitled to summary judgment as a matter of law on vicarious and direct liability.
The circuit court extended the workers’ compensation going-and-coming rule into the tort context and granted summary judgment for Comfort Systems. The Arkansas Supreme Court reversed and remanded, holding that:
- The workers’ compensation “going-and-coming” rule does not govern respondeat superior in Arkansas tort cases; instead, courts must apply the traditional “scope of employment” analysis; and
- On this record, reasonable minds could differ as to whether Conboy was acting within the scope of employment while commuting to a remote jobsite, so summary judgment on vicarious liability was improper; and
- The circuit court erred in granting summary judgment on the plaintiffs’ direct negligence claims where the employer never sought that relief in its motion.
The decision meaningfully clarifies Arkansas law: it rejects importing the statutory workers’ compensation going-and-coming doctrine into common-law tort and reinforces that the scope-of-employment inquiry in commuting cases is a fact-intensive, jury-appropriate question when reasonable inferences conflict. It also reaffirms limits on the breadth of relief that can be granted on summary judgment.
II. Background and Procedural History
A. The Accident and Parties
On September 23, 2021, at approximately 5:51 a.m., Comfort Systems employee Cody Conboy was driving his personal pickup truck from his home in Greenbrier, Arkansas, to a remote construction jobsite at the Emerson factory project in Ash Flat. His truck crossed the center line on Highway 167 and collided with a daycare transport van.
The collision killed:
- Tammy Gardner, the van’s driver; and
- Five-year-old Sir Christopher Earnest Walker Skala.
Three-year-old Xavior Robert Dawson Skala was injured.
The plaintiffs (appellants on appeal) are:
- Rebecca Skala, as special administrator of Sir Christopher’s estate and guardian of Xavior’s estate; and
- James Gardner, as special administrator of Tammy Gardner’s estate.
They sued:
- Cody Conboy (the driver), and
- Comfort Systems USA, Inc. (the parent corporation) and Comfort Systems USA (Arkansas), Inc. (the operating entity) (collectively “Comfort Systems”).
The plaintiffs alleged:
- Direct negligence against Conboy (as the driver);
- Vicarious liability against Comfort Systems under respondeat superior; and
- Direct negligence against Comfort Systems (for hiring, training, supervising, and for alleged “pattern and practice” of overworking employees so as to make driving unsafe).
B. Employment and Travel Facts
The following facts were undisputed and became central to the legal analysis:
- Comfort Systems employed Conboy as a welder beginning in January 2021.
- His work was almost entirely at out-of-town jobsites, in Arkansas and Oklahoma.
- Job postings and onboarding materials for his position:
- Asked if he could “travel if a job requires it”; and
- Listed as a minimum requirement the “ability to travel, as needed, for projects.”
- Before hiring, Comfort Systems required Conboy to sign an authorization so it could obtain his driving record.
- Comfort Systems adopted a formal written travel policy to address out-of-town work:
- Recognized “hardships” of out-of-town work;
- Provided for paid travel time (at regular hourly rate) for certain distances from home or office; and
- Allowed employees living more than 70 miles from the jobsite to choose between:
- Per diem of $100/night (with a duty to stay out-of-town), or
- Commuting from home to jobsite in exchange for paid drive time.
- Specified that accepting per diem and commuting could be grounds for dismissal.
- For the Ash Flat project, Conboy elected per diem ($500 for five days) but in fact commuted daily from home.
- After the accident, Comfort Systems reprimanded Conboy for violating the travel policy (taking per diem while commuting).
These facts underpin two competing narratives:
- Plaintiffs’ view: Travel to remote jobsites was an integral, contemplated part of Conboy’s job; Comfort Systems controlled and structured that travel through employment requirements, driving record checks, and the travel policy, and it benefited directly from his commuting to the remote jobsite.
- Comfort Systems’ view: Conboy’s job was to weld; his choice of how, when, and in what vehicle to get to work was personal and outside the scope of employment; the company did not control the commute and did not benefit from the travel itself, only from his presence at the worksite at the start of the shift.
C. Motions and Circuit Court Ruling
The litigation generated cross-motions for summary judgment on the vicarious liability issue:
- Plaintiffs’ motion for partial summary judgment (July 25, 2022) sought a ruling, as a matter of law, that Conboy was within the scope of his employment while traveling to Ash Flat:
- They contended he was performing an assigned task (getting to the remote jobsite at a specified time); and
- His commute was contemplated as part of his job and in furtherance of Comfort Systems’ interests.
- Comfort Systems’ motion for summary judgment (August 11, 2022) argued:
- Conboy was not on the job while commuting;
- He was driving his own vehicle, for his own purposes, outside employer control; and
- Arkansas workers’ compensation law’s “going-and-coming” rule should apply—and bar liability—because travel to and from work is not in the “course and scope” of employment.
The circuit court accepted Comfort Systems’ legal theory. It:
- Extended the workers’ compensation “going-and-coming” rule to tort-based respondeat superior cases;
- Held that Conboy was not acting in the course and scope of employment while commuting to Ash Flat in his own truck; and
- Granted summary judgment to Comfort Systems on:
- All vicarious liability claims; and
- All direct-liability claims, based on the premise that if Conboy was not in the scope of employment, direct claims (e.g., negligent training/supervision) also failed as a matter of law.
The claims against Conboy individually remained pending. The court certified its order for appeal under Arkansas Rule of Civil Procedure 54(b).
D. Court of Appeals and Supreme Court Review
The Arkansas Court of Appeals reversed and remanded. Thereafter:
- Comfort Systems sought rehearing; the court of appeals issued a substituted opinion and a supplemental opinion denying rehearing but maintaining reversal.
- Comfort Systems then petitioned the Arkansas Supreme Court for review.
- The Supreme Court granted review and, as is its practice, treated the case as if it had been originally filed there, ultimately issuing its own opinion reversing the circuit court and vacating the court of appeals’ opinion.
III. Summary of the Supreme Court’s Decision
A. Majority Opinion (Chief Justice Baker)
The Arkansas Supreme Court majority issued three principal holdings:
-
No importation of the workers’ compensation “going-and-coming” rule into tort respondeat superior.
The Court expressly rejected the circuit court’s premise that workers’ compensation “going-and-coming” doctrine should control employer liability in tort. Instead, it reaffirmed that tort cases are governed by the traditional “scope of employment” analysis, not by workers’ compensation’s “arising out of and in the course of employment” standard. -
Scope-of-employment is a fact-intensive inquiry; summary judgment was improper on vicarious liability.
Although the underlying facts were essentially undisputed, the Court held that those facts support conflicting reasonable inferences about whether Conboy was acting within the scope of employment, particularly given:- Comfort Systems’ business model of sending employees to remote jobsites;
- Employment requirements relating to travel and driving records; and
- The travel policy and Conboy’s discipline for violating it.
-
The circuit court erred in granting summary judgment on direct negligence claims that were not the subject of Comfort Systems’ motion.
Relying on Young v. Staude, 280 Ark. 298, 657 S.W.2d 542 (1983), the Court held that a trial court cannot grant relief beyond what is requested in a summary-judgment motion. Comfort Systems had moved only on vicarious-liability grounds; it did not argue that there was no triable issue on plaintiffs’ direct-negligence claims. The circuit court thus erred in disposing of those claims.
The case was reversed and remanded for further proceedings; the court of appeals’ opinion was vacated.
B. Dissenting Opinion (Justice Wood, joined by Justices Hiland and Bronni)
Justice Wood agreed with the majority that the workers’ compensation going-and-coming rule should not be imported wholesale into tort. However, she strongly disagreed with the majority’s conclusion that a fact question exists on scope of employment.
The dissent’s core points:
- Arkansas already follows a general common-law rule that employers are not vicariously liable for employees’ negligence while commuting in their own vehicles to or from work.
- Under Knighton v. International Paper Co. and other cases, scope of employment in commuting scenarios can be decided as a matter of law; courts have routinely held that such commutes fall outside the scope of employment.
- The facts on Conboy’s commute:
- Driving from home to jobsite in his own truck;
- Not using a company vehicle;
- Not traveling between jobsites; and
- Not running any specific errand for the employer en route
- The travel policy, job requirement to be able to travel, and reimbursement/per diem do not amount to employer “control” over the commute for respondeat superior purposes.
- By treating these facts as creating a jury issue, the majority effectively (but implicitly) creates new exceptions for remote jobsites and travel allowances, expanding employer exposure in ways that undermine predictability and foreseeability.
Justice Wood would have affirmed summary judgment for Comfort Systems on the vicarious liability claim.
IV. Detailed Analysis
A. Issues Before the Court
The appeal presented two principal sets of issues:
-
Vicarious Liability (Respondeat Superior)
(a) Should the workers’ compensation “going-and-coming” rule govern scope-of-employment analysis in tort?
(b) Under the correct legal test, was there any genuine issue of material fact regarding whether Conboy was acting within the scope of his employment while commuting? -
Direct Liability
Did the circuit court err procedurally by granting summary judgment on direct negligence claims when Comfort Systems’ summary-judgment motion addressed only vicarious liability?
B. Precedents and Authorities Discussed
1. The Workers’ Compensation “Going-and-Coming” Rule
In workers’ compensation law, Arkansas (like most jurisdictions) generally follows the going-and-coming rule: injuries sustained while going to or coming from work are usually not compensable because they do not occur “in the course of” employment. The majority cites Olsten Kimberly Quality Care v. Pettey, 328 Ark. 381, 944 S.W.2d 524 (1997), for this principle.
In Olsten, the Court articulated the rationale: an employee is not typically within the course of employment while commuting, so injuries then are not covered. Over time, workers’ compensation law has developed recognized exceptions (e.g., special errand, traveling employee).
The circuit court in Skala imported this workers’ compensation doctrine into a tort/respondeat superior setting and treated it as dispositive.
2. Van Dalsen v. Inman, 238 Ark. 237, 379 S.W.2d 261 (1964)
Van Dalsen is the linchpin of the majority’s rejection of applying workers’ compensation doctrines in tort:
- There, a salesman, Inman, drove to Little Rock for a personal reason (to visit his wife in the hospital).
- On his return, he briefly stopped at his employer’s office to leave a note, then resumed his personal trip home and was involved in a fatal crash.
- The plaintiff attempted to rely on workers’ compensation decisions involving traveling salesmen to argue that Inman was acting within the scope of his employment.
The Arkansas Supreme Court rejected that approach in unambiguous terms:
“The liability of the [employer] in the case at bar is to be determined by the ‘scope of employment’ cases involving master and servant, and not by the ‘arising out of and in the course of employment’ rule in workmen’s compensation cases. The workmen’s compensation cases are not applicable to a master and servant case, such as in the case at bar.”
— 238 Ark. at 242–43, 379 S.W.2d at 265
Applying traditional scope-of-employment analysis, the Court held that Inman was on a private mission, not acting within the scope of employment when the accident occurred.
In Skala, the majority quotes this passage to emphasize that workers’ compensation standards—and the going-and-coming rule in particular—are not properly imported into common-law tort cases.
3. Frank Lyon Co. v. Oates, 225 Ark. 682, 284 S.W.2d 637 (1955)
Frank Lyon was a workers’ compensation decision explicitly addressing the going-and-coming rule and its exceptions. It is significant here not because it governs tort, but because:
- It provided the framework for workers’ compensation analysis of travel-related injuries; and
- It was distinguished and rejected as a governing standard in Van Dalsen for tort cases.
In Knighton (discussed next), the Court referred to Frank Lyon, but as the majority notes, it nonetheless decided Knighton under the traditional scope-of-employment analysis.
4. Knighton v. International Paper Co., 246 Ark. 523, 438 S.W.2d 721 (1969)
Knighton is a central precedent in the dissent and a point of interpretive contention:
- An employee (King) had finished his workday, delivered his final load, been paid, and was driving home in his own truck when a collision occurred.
- Some language in Knighton acknowledges the going-and-coming rule and its exceptions in the workers’ compensation context, citing Frank Lyon.
- However, the Court ultimately decided the case on a fact-driven scope-of-employment basis, concluding that when King drew his pay and started home in his own vehicle, he was no longer under the employer’s control and thus not acting within the scope of employment.
The majority in Skala reads Knighton as:
- Not adopting the workers’ comp going-and-coming rule into tort law, but rather;
- Applying the traditional respondeat superior analysis to those facts.
The dissent reads Knighton as crystallizing the general rule that commuting in one’s own vehicle is outside the scope of employment and that such cases can be resolved as a matter of law—without jury involvement—when the operative facts are undisputed.
5. Other Arkansas Respondeat Superior Cases
The Court invoked several established Arkansas authorities:
- Jackson v. Ivory, 353 Ark. 847, 120 S.W.3d 587 (2003)
Reaffirmed that an employer is vicariously liable for an employee’s torts only when the tort occurs within the scope of employment. - J.B. Hunt Transp., Inc. v. Doss, 320 Ark. 660, 899 S.W.2d 464 (1995)
Emphasized that scope-of-employment is not determined solely by the location of the tort:“Whether an employee is acting within the scope of employment is not necessarily dependent upon the situs of the occurrence but on whether the individual is carrying out the object and purpose of the enterprise, as opposed to acting exclusively in his own interest.”
- Orkin Exterminating Co. v. Wheeling Pipeline, Inc., 263 Ark. 711, 567 S.W.2d 117 (1978) (relied on in the dissent)
Reversed a jury verdict against the employer where a traveling salesman was returning home from a purely personal visit outside his sales territory; held that he was outside scope of employment as a matter of law. - Van Dalsen (discussed above)
Applied scope-of-employment analysis to a trip that involved both personal and business elements and still found the employee outside the scope at the time of the accident.
6. Summary Judgment Standards
The majority grounded its analysis in standard Arkansas summary-judgment doctrine:
- Crockett v. C.A.G. Invs., Inc., 2011 Ark. 208, 381 S.W.3d 793
Summary judgment is appropriate only when no genuine issues of material fact exist and the moving party is entitled to judgment as a matter of law. - Thomas v. Sessions, 307 Ark. 203, 818 S.W.2d 940 (1991)
Even when the underlying facts are undisputed, summary judgment is improper if the evidence supports reasonable but inconsistent inferences. - Flentje v. First National Bank of Wynne, 340 Ark. 563, 11 S.W.3d 531 (2000)
Clarified that:“We only approve the granting of the motion when the state of the evidence … is such that the nonmoving party is not entitled to a day in court, i.e., when there is not any genuine remaining issue of fact and the moving party is entitled to judgment as a matter of law. However, when there is no material dispute as to the facts, the court will determine whether reasonable minds could draw reasonable inconsistent hypotheses to render summary judgment inappropriate.”
This framework is critical: the majority held that while the “facts” of Conboy’s commute and employment conditions were undisputed, the inferences about scope of employment were not.
7. Summary Judgment Scope: Young v. Staude, 280 Ark. 298, 657 S.W.2d 542 (1983)
In Young, the Court held:
“A trial court cannot grant relief beyond that prayed for in the motion for summary judgment in ruling on that motion.”
In Skala, this rule controlled the direct-negligence issue: Comfort Systems had not asked for summary judgment on the plaintiffs’ direct-liability claims. The circuit court thus erred in granting relief on those claims sua sponte.
8. Dissent’s Additional Authorities (Restatement and Out-of-State Law)
Justice Wood’s dissent looked beyond Arkansas cases to highlight the prevailing national view:
- Restatement (Third) of Agency § 7.07 cmt. e (2006)
States that:- Travel required to perform work (e.g., from employer’s office to jobsite, or between jobsites) is ordinarily within the scope of employment;
- Travel to and from work ordinarily is not within the scope of employment;
- But an employer may bring commute travel within the scope by:
- Providing and controlling a vehicle for business purposes; or
- Assigning work-related tasks to be done during the commute.
- Jones v. Blair, 387 N.W.2d 349 (Iowa 1986)
Held that remote travel and travel reimbursement alone did not put a commuting employee under employer’s control for vicarious liability purposes. - Walsh v. United States, 31 F.3d 696 (8th Cir. 1994)
Held that even military constraints on route and other factors were insufficient to bring a National Guard member’s commute within the scope of employment. - Carter v. Reynolds, 815 A.2d 460 (N.J. 2003) and ALR annotations
Noted as reflecting the general majority rule that commuting in one’s own car is normally outside the scope of employment.
These authorities support the dissent’s view that the majority deviated from widely accepted respondeat superior principles by treating remote commute plus travel policy as sufficient to create a jury issue.
C. The Court’s Legal Reasoning
1. Rejecting the Workers’ Compensation “Going-and-Coming” Rule in Tort
The majority’s first critical move was to correct the circuit court’s legal premise. The circuit court had reasoned that because Arkansas applies a going-and-coming rule in workers’ compensation, the Supreme Court would likely extend that doctrine to tort-based respondeat superior cases if asked. The Supreme Court answered that question definitively:
- Workers’ compensation cases revolve around statutory language such as “arising out of and in the course of employment.”
- Respondeat superior cases revolve around the common-law concept of “within the scope of employment.”
- As Van Dalsen instructed, workers’ compensation decisions—and their specific doctrines like the going-and-coming rule—are not applicable to traditional master–servant tort cases.
In doing so, the Court:
- Preserved doctrinal coherence: different bodies of law (compensation vs. tort) apply different standards and serve different policy goals.
- Clarified that the workers’ compensation going-and-coming rule is not a per se shield for employers in tort suits arising from commuting accidents.
Important nuance: The Court did not say that commuting is generally within the scope of employment. It held only that scope-of-employment questions in tort must be analyzed under traditional respondeat superior principles, not under the workers’ compensation going-and-coming framework.
2. Applying Traditional Scope-of-Employment Analysis to a Remote Commute
Once the Court confirmed that traditional respondeat superior law governs, it applied that framework to the undisputed facts.
Under Arkansas law:
- An employer is vicariously liable only when the employee’s negligence occurs while acting within the scope of employment; and
- Scope-of-employment turns on whether the employee was “carrying out the object and purpose of the enterprise, as opposed to acting exclusively in his own interest.” (J.B. Hunt v. Doss)
The question, therefore, was: Was Conboy’s commute to Ash Flat purely personal travel, or was it part of carrying out Comfort Systems’ business?
The Court identified several undisputed facts that bear on this question:
- Travel and driving were explicitly contemplated by the employment relationship.
- Comfort Systems asked whether Conboy could travel as required for jobs and made “ability to travel, as needed, for projects” a stated job requirement.
- The company obtained Conboy’s driving record before hiring, indicating concern about his driving suitability for the job.
- Comfort Systems’ business model depended on employees traveling to remote jobsites.
- Conboy’s work had consistently been out-of-town.
- His travel on the morning of the accident was solely to reach an assigned jobsite at a specified start time.
- The employer structured and regulated travel through a written policy and disciplinary measures.
- The travel policy provided for paid drive time or per diem based on distance.
- The company retained the right to discipline employees for misuse of the policy (e.g., commuting while taking per diem).
- Conboy was disciplined specifically for violating this policy in his travel patterns to Ash Flat.
On these facts, the majority did not hold that Conboy was in the scope of employment as a matter of law. Rather, it concluded that:
- These facts support a reasonable inference that travel to the remote jobsite was a contemplated and integral part of Conboy’s job and directly furthered Comfort Systems’ business; but
- A jury could also reasonably draw the opposite inference—that, despite these arrangements, the commute remained fundamentally personal travel, as the dissent argued.
Because reasonable people could draw “reasonable inconsistent hypotheses” from these facts, the question of scope of employment was a jury question, not a matter for summary judgment.
3. Summary Judgment: Undisputed Facts, Disputed Inferences
A subtle but important aspect of the Court’s reasoning is its recognition that:
- There may be no dispute over the raw facts themselves (e.g., what the travel policy said, where Conboy lived, where the jobsite was, that he was reprimanded).
- Yet there may be a serious dispute over the legal and factual inferences that flow from those facts (e.g., whether those arrangements show employer control or business purpose sufficient to bring the commute within the scope of employment).
Relying on Flentje and Thomas, the Court reaffirmed that:
- Summary judgment is inappropriate when undisputed facts support more than one reasonable inference on a material issue (here, scope of employment).
- The presence of such conflicting inferences entitles the nonmoving party (plaintiffs) to a “day in court” before a jury.
By reversing summary judgment, the Court ensured that a jury will decide whether, in this specific context—remote jobsite, travel-intensive job, company travel policy and discipline—Conboy’s early-morning drive was or was not within the scope of his employment.
4. Error in Granting Summary Judgment on Direct Negligence Claims
Comfort Systems’ motion for summary judgment focused exclusively on vicarious liability (respondeat superior). It argued that:
- Conboy was not acting in the scope of employment at the time of the accident; and
- Therefore, the employer could not be vicariously liable for his negligence.
The plaintiffs, however, had also pleaded direct liability claims against Comfort Systems, alleging, among other things:
- A pattern and practice of overworking employees, rendering them unsafe drivers and creating a hazard to the traveling public; and
- Negligent training, supervision, monitoring, and control.
Comfort Systems never sought summary judgment on the merits of these direct negligence theories. Nonetheless, the circuit court summarily disposed of them, reasoning that:
- Because Conboy was not in the scope of employment at the time of the accident, there could be no direct liability for negligent training, supervision, or control.
The Supreme Court held this was procedurally improper under Young v. Staude:
- A court may not grant relief beyond what the movant requests in a summary-judgment motion.
- By granting summary judgment on claims Comfort Systems had not moved against, the circuit court deprived plaintiffs of notice and an opportunity to respond.
Therefore, the grant of summary judgment as to the direct negligence claims had to be reversed as a matter of law, irrespective of their underlying merits (which remain unaddressed and open on remand).
D. The Dissent’s Legal Reasoning and Concerns
Justice Wood’s dissent, joined by Justices Hiland and Bronni, raised important counterpoints that illuminate the boundaries of the majority’s holding.
Key positions of the dissent:
-
General Rule: No Employer Liability for Ordinary Commutes
The dissent emphasized that Arkansas has long adhered to the general principle that employers are not vicariously liable for accidents occurring while employees travel to or from work in their personal vehicles. This is grounded in:- Knighton: Employee driving his own truck home after finishing his last work task and receiving pay was outside the scope of employment as a matter of law.
- Orkin, Van Dalsen: Employees on personal missions, even when work-related stops occurred earlier, were outside scope at the time of their accidents.
-
National Consensus and the Restatement
Citing the Restatement (Third) of Agency and authorities from other jurisdictions, the dissent noted that:- Ordinary commuting is not within scope of employment absent special circumstances, such as employer-provided and controlled vehicles or business errands during the commute.
- Reimbursement of travel expenses or remote jobsite assignments, standing alone, usually do not create respondeat superior liability.
-
Application to Conboy’s Commute
The dissent characterized the undisputed facts as fitting squarely within the ordinary-commute rule:- Conboy drove his own vehicle from his home to a jobsite;
- He was not driving a company vehicle;
- He was not traveling between jobsites or from a company office to a jobsite;
- He was not performing any specific service (such as a delivery or errand) for Comfort Systems during the drive.
- Had no right to control when, how, or by what route Conboy drove;
- Had no claim on his time before he reported to the jobsite; and
- Exercised control only over his work at the site, not over the commute itself.
-
Travel Policy and Discipline Do Not Create Control
The dissent rejected the idea that the travel policy or Conboy’s reprimand established employer control over the commute:- The policy addressed compensation and overnight stay expectations, not driving behavior, route, or vehicle.
- The reprimand focused on his improper choice of per diem (taking per diem while commuting), not on his decision to commute as such.
- Thus, these facts did not, in the dissent’s view, transform Conboy’s commute into employer-controlled activity.
-
Scope-of-Employment Is Often a Question of Law
Justice Wood stressed that Arkansas courts have repeatedly decided scope-of-employment at summary judgment when undisputed facts show the employee acted outside the scope:- In Knighton, the Court found “no fact issue” for the jury regarding whether the employee had any duties to the employer while en route home.
- Similarly, Orkin and Van Dalsen led to judgment for employers as a matter of law.
-
Policy Concerns: Foreseeability and Overexpansion of Employer Liability
The dissent warned that:- If remote worksites and travel reimbursements are enough to create a jury question on vicarious liability, employers may face substantial, unpredictable exposure for commuting accidents.
- Employers typically cannot control, and may not even know, how employees commute daily; making them vicariously liable in such circumstances undermines fairness and foreseeability.
- The majority appears to create new exceptions to the general rule (for remote jobsites and travel allowances) but does so implicitly, leaving employers uncertain about the contours of their liability.
In short, the dissent would have treated this as a classic commuting case, controlled by long-standing Arkansas and national authority, and affirmed summary judgment for the employer.
E. Complex Concepts Simplified
1. Vicarious Liability vs. Direct Liability
- Vicarious Liability (Respondeat Superior)
The employer is held responsible for the employee’s wrongful acts, even if the employer itself did nothing wrong, but only when:- The employee committed the wrongful act; and
- The act was done within the scope of employment.
- Direct Liability
The employer is sued for its own negligence—such as:- Negligent hiring (hiring an obviously unfit driver);
- Negligent training or supervision; or
- Creating dangerous working conditions (e.g., systematically overworking employees so that they are dangerously fatigued).
2. Respondeat Superior and “Scope of Employment”
“Respondeat superior” is Latin for “let the master answer.” Under this doctrine:
- An employer can be held liable for an employee’s torts if, and only if the employee was acting within the “scope of employment.”
- Scope of employment generally means:
- The employee was performing work assigned by the employer, or
- The employee was engaging in a course of conduct subject to the employer’s control and motivated, at least in part, by a purpose to serve the employer.
By contrast, when an employee is on a purely personal venture—running personal errands, taking a detour for private reasons, or commuting in a way not sufficiently tied to the employer’s business—the employer is typically not liable.
3. Workers’ Compensation vs. Tort Standards
Workers’ compensation and tort law serve different purposes and use different standards:
- Workers’ Compensation
- Statutory, no-fault system designed to provide limited but prompt benefits to injured workers.
- Key test: injury must “arise out of and in the course of employment.”
- The “going-and-coming” rule is a doctrinal tool under this standard; it generally denies compensation for ordinary commutes, subject to exceptions.
- Tort (Negligence) / Respondeat Superior
- Common-law system based on fault, where the plaintiff must prove duty, breach, causation, and damages.
- Vicarious liability focuses on whether the employee was acting within the “scope of employment.”
- Though both bodies of law consider the relationship between employment and the injury, they do so for different reasons, with different policy considerations and doctrinal rules.
Skala underscores that the workers’ compensation going-and-coming rule and its exceptions are not automatically transferrable into tort law.
4. The “Going-and-Coming” Rule vs. the General Commuting Principle
The terminology can be confusing:
- “Going-and-Coming Rule”
A term of art in workers’ compensation law that specifically addresses when commuting injuries are considered “in the course of employment.” - General Commuting Principle in Tort
A broader common-law understanding (reflected in the Restatement) that:- Ordinary commuting in one’s own vehicle, on one’s own time, is usually outside the scope of employment; but
- Commutes can fall within scope if the employer exerts sufficient control or the trip serves a special business purpose beyond merely traveling to work.
The majority rejects the formal workers’ comp going-and-coming rule as a controlling standard in tort. The dissent emphasizes that, even without that rule, Arkansas’s common-law commuting principle should lead to the same result (no liability) in this case.
5. Summary Judgment and “Genuine Issue of Material Fact”
Summary judgment is a procedural device used to resolve cases without a trial when:
- There is no genuine dispute of material fact; and
- The moving party is entitled to judgment as a matter of law.
A “genuine issue of material fact” exists when:
- The fact (or inference from it) could affect the outcome of the case; and
- Reasonable jurors could disagree on that fact or inference.
Skala illustrates that:
- Even if the historical facts are undisputed, summary judgment cannot be granted if different reasonable inferences about a key issue—here, the scope of employment—can be drawn from those facts.
- Scope of employment is sometimes for the court (as a matter of law) and sometimes for the jury (as a question of fact). The dividing line is whether reasonable minds can differ on the inferences drawn from the undisputed facts.
V. Likely Impact on Arkansas Law and Practice
A. Clarified Doctrinal Boundary: Workers’ Comp vs. Tort
Skala provides clear guidance that Arkansas trial courts should not import workers’ compensation doctrines—especially the going-and-coming rule—into tort/respondeat superior analysis. Instead, they must:
- Apply traditional common-law scope-of-employment frameworks; and
- Rely on Arkansas case law (e.g., Van Dalsen, Knighton, Orkin, J.B. Hunt) and broader agency principles, not compensation precedents.
This demarcation promotes doctrinal clarity and prevents the conflation of statutory and common-law standards.
B. Expanded Jury Role in Commuting Cases with Structured Travel
While the Court did not hold that commuting employees are generally within the scope of employment, it did:
- Signal that in cases where:
- Out-of-town or remote work is an inherent part of employment;
- The employer explicitly contemplates and structures travel (job requirements, travel policies, reimbursements, per diems); and
- The employer disciplines employees for how they travel;
Practically, this:
- Makes it more likely that juries, rather than judges, will decide whether a given commute is within the scope of employment in such structured-travel scenarios.
- May modestly expand the circumstances under which employers can be held vicariously liable for commuting accidents in Arkansas.
C. Evidentiary Focus in Future Scope-of-Employment Disputes
Going forward, litigants can expect the following types of evidence to become particularly important in scope-of-employment disputes involving travel:
- Job descriptions and recruitment materials emphasizing travel or driving;
- Employer requirements for driving records, vehicle insurance, or specific driving qualifications;
- Travel policies addressing:
- Paid travel time;
- Per diem and lodging expectations;
- Rules about commuting vs. staying onsite;
- Disciplinary consequences for noncompliance.
- Evidence of how closely the employer monitors and regulates employees’ travel choices (routes, timing, use of certain vehicles, etc.);
- Testimony about whether the travel is essential to the employer’s business model or merely incidental.
Plaintiffs will likely emphasize such evidence to argue that travel is part of the employer’s enterprise; employers will emphasize employee autonomy and lack of control over commutes.
D. Employer Travel Policies: Risk Management and Drafting Implications
Skala also has practical implications for employer policy-making:
- Employers who rely heavily on remote jobsites and traveling workers will need to review:
- Travel and per diem policies;
- Driving record requirements; and
- Any disciplinary provisions related to commuting.
- The more a policy can be characterized as:
- Controlling the “means and manner” of travel; or
- Integrating travel into the employee’s core duties;
- On the other hand, policies that:
- Clearly treat commuting as the employee’s personal responsibility;
- Focus on reimbursement or per diem without dictating specific travel behavior; and
- Clearly delineate when an employee’s workday officially begins and ends;
E. Litigation and Insurance Consequences
From a litigation and risk perspective:
- Employers, particularly in construction, field services, and other travel-intensive industries, may face more frequent and fact-intensive respondeat superior claims arising from commuting accidents.
- Insurers may:
- Reassess commercial auto and general liability exposures in Arkansas;
- Scrutinize insureds’ travel policies and business models more closely; and
- Adjust underwriting and policy language to account for potentially expanded fact-finding on scope of employment.
- Summary judgment may remain appropriate in more traditional commuting cases (e.g., office workers, no structured travel, no travel-specific policies), but will be harder to obtain where:
- Travel is integral to the job; and
- Employer policies strongly structure or regulate that travel.
F. Procedural Practice: Limits on Sua Sponte Summary Judgment
The Court’s reaffirmation of Young v. Staude has procedural significance:
- Trial courts must confine summary judgment rulings to the specific grounds raised in the moving party’s motion.
- Even if the court believes another claim is infirm as a matter of law, it may not dispose of that claim on summary judgment without:
- Proper motion by a party; and
- Notice and an opportunity for the non-moving party to respond.
This safeguard:
- Protects litigants from being ambushed by unbriefed dispositive rulings; and
- Ensures direct negligence claims—like those in Skala—receive full adversarial testing before disposition.
VI. Key Takeaways and Conclusion
A. Core Legal Principles Established or Clarified
- Workers’ compensation doctrines, including the “going-and-coming” rule, do not control tort-based respondeat superior in Arkansas.
Liability in tort remains governed by traditional scope-of-employment analysis rooted in common law. - Scope-of-employment in commuting cases is fact-specific.
Especially where:- Travel is an inherent part of the job;
- The employer explicitly structures travel (policy, pay, discipline); and
- The employee is traveling to a remote jobsite;
- The historic “no liability for ordinary commute” principle is not abolished, but its application is narrowed.
Traditional commuting cases (employee driving personal car to a fixed workplace, without special travel obligations or policies) may still result in summary judgment for employers. However, when significant employer involvement in travel is shown, the analysis becomes more nuanced. - Trial courts may not grant summary judgment on claims or theories that were not raised in the summary-judgment motion.
Young v. Staude remains good law: relief cannot exceed the scope of the motion. In Skala, this required reversal of summary judgment on the plaintiffs’ direct negligence claims.
B. Significance in the Broader Legal Context
Skala v. Comfort Systems USA, Inc. stands as a significant Arkansas Supreme Court decision in several respects:
- It reasserts the independence of tort law from workers’ compensation doctrine, ensuring that statutory rules designed for employee benefits do not automatically govern third-party tort claims.
- It updates and contextualizes respondeat superior analysis for a modern economy where many employees—especially in construction, energy, and service industries—routine travel to remote or rotating worksites.
- It enhances the jury’s role in determining scope of employment in structured-travel scenarios, acknowledging that such questions often turn on nuanced judgments about control, purpose, and benefit.
- It protects procedural fairness by enforcing limits on the scope of summary-judgment rulings, particularly regarding unargued direct-liability theories.
At the same time, the strong dissent underscores ongoing tension around the line between personal and business travel and warns of increased unpredictability and exposure for employers. Future Arkansas cases will likely refine how Skala applies to different factual configurations—especially where travel obligations are less pronounced than in this case.
For now, litigants and courts must approach commuting-related respondeat superior claims with a careful, fact-intensive inquiry: not assuming that commuting is either always within, or always outside, the scope of employment, but instead asking how deeply the employer has woven travel into the fabric of the job.
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