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693 P.2d 254

Opinion

BIRD, Chief Justice.

Does the “going and coming rule” preclude an award of workers’ compensation benefits to an employee who is injured while waiting for his place of employment to open?

Approximately 7:50 a.m. on June 20, 1980, petitioner, Andrew Leo Price, was injured outside his place of employment. Price had arrived at work at 7:45 a.m. Since no lot was provided for employee parking, Price parked his car on the same side of the street as his employer’s premises.

The employer’s building was half a block wide and fronted directly on the sidewalk. There was no place on the premises where employees could wait if they arrived early. In fact, the employees could not gain access to the premises at all until the doors were unlocked.

On the morning of the accident, Price intended to start work early. However, the doors to the premises were locked and neither his supervisor’s nor his boss’s car was parked nearby. Since he could not enter the premises, he decided to put a quart of oil into the engine of his car while he waited. As he put the oil into his car, Price straddled the left headlight and extended his right leg to the side. A passing car struck Price’s leg. He now seeks compensation for those injuries.

The workers’ compensation judge found that Price was injured “in the course of the employment.” Although Price was not physically on the employer’s premises when the accident occurred, he was waiting to be admitted to work. Further, the workers’ compensation judge held that pouring oil into a car was an act of “personal convenience” that did not abrogate the employment relationship.

Upon reconsideration, the Workers’ Compensation Appeals Board (board) rescinded the award based on the “going and coming rule.” The board relied on the fact that Price was not on the employer’s premises when he was injured. Therefore, they concluded that he had not completed his journey to work. (See General Ins. Co. v. Workers’ Comp. Appeals Bd. (1976) 16 Cal.3d 595, 600, 128 Cal.Rptr. 417, 546 P.2d 1361 (hereafter Chairez ).)

II.

The issue presented here—whether the going and coming rule applies to an employee who has arrived at work but is unable to gain access to the premises—is a question of first impression. The going and coming rule governs injuries incurred “during the course of a local commute” (Chairez, supra, 16 Cal.3d 595, 598, 128 Cal.Rptr. 417, 546 P.2d 1361 or “while travelling to and from work” (Parks, supra, 33 Cal.3d at p. 588, 190 Cal.Rptr. 158, 660 P.2d 382). However, it does not apply to an employee who has arrived at his or her workplace.

This court has often held off-premises injuries compensable. “Although many of our decisions have involved injuries on premises owned or controlled by the employer, we have refused to regard either attribute as a sine qua non for compensation.” (Lewis v. Workers’ Comp. Appeals Bd. (1975) 15 Cal.3d 559, 562, 125 Cal.Rptr. 353, 542 P.2d 225.) For example, the “special risk” exception to the going and coming rule provides for compensation where a risk associated with the employment causes injury just outside the employer’s premises. (See, e.g., Parks, supra, 33 Cal.3d at p. 593, 190 Cal.Rptr. 158, 660 P.2d 382; Greydanus v. Industrial Acc. Com. (1965) 63 Cal.2d 490, 492–493, 47 Cal.Rptr. 384, 407 P.2d 296; Freire v. Matson Navigation Co., supra, 19 Cal.2d at p. 11, 118 P.2d 809.)

Although the special risk exception need not be invoked here because the going and coming rule does not apply, the exception supports by analogy the conclusion that Price’s injury occurred within the course of his employment.

“If, prior to entry upon the premises, an employee suffers injury from a special risk causally related to employment, the injury is compensable under the ‘special risk’ exception to the going and coming rule.” (Chairez, supra, 16 Cal.3d at p. 600, 128 Cal.Rptr. 417, 546 P.2d 1361.) More broadly stated, the special risk exception implies “a zone of employment, varying in distance, measured by the special circumstances of each case and defined by the nature of the employment.” (Lefebvre v. Workers’ Comp. Appeals Bd. (1980) 106 Cal.App.3d 745, 750, 165 Cal.Rptr. 246.)

Relying on the Chairez case, the board denied compensation on the ground that Price was not on the employer’s premises but was out in the street when he was hit by a passing car. The board invoked the so-called “premises line” test. “For purpose[s] of the [going and coming] rule, the employment relationship does not begin until an employee enters the employer’s premises. Prior to entry the going and coming rule ordinarily precludes recovery; after entry, injury is generally presumed compensable as arising in the course of employment.” (Chairez, supra, 16 Cal.3d at p. 598, 128 Cal.Rptr. 417, 546 P.2d 1361.)

However, the “premises line” test should not preclude compensation here. In Chairez, the employee was killed while walking across the street away from his parked car and toward the workplace. He was still on his way to work when the accident occurred because he had not yet reached the employer’s premises. (Chairez, supra, 16 Cal.3d at p. 600, 128 Cal.Rptr. 417, 546 P.2d 1361.) Price, on the other hand, was no longer traveling toward the workplace when the accident occurred. Instead, he had arrived, parked, and observed that he could not gain access to the premises until one of his superiors arrived.

The board argues that even if the going and coming rule is inapplicable, Price was not injured within the course of employment. According to the board, Price temporarily abandoned his employment relationship when he decided to put oil in his car while waiting to be admitted to the workplace. Price contends that pouring oil in his car was an act of “personal convenience” and compensable.

Acts of “personal convenience” are within the course of employment if they are “ ‘reasonably contemplated by the employment.’ ” (Pacific Indem. Co. v. Ind. Acc. Com. (1945) 26 Cal.2d 509, 514, 159 P.2d 625; accord North American Rockwell Corp. v. Workmen’s Comp. App. Bd. (1970) 9 Cal.App.3d 154, 158, 87 Cal.Rptr. 774 (hereafter Saska ); Burnett, supra, 37 Cal.App.2d at p. 573, 99 P.2d 1089.) Courts consider the nature of the act and the nature of the employment, the custom or usage of the employment, the terms of the employment contract, and “other factors.” (Ibid.; Saska, supra, 9 Cal.App.3d at p. 158, 87 Cal.Rptr. 774.) In view of the policy favoring employee compensation, doubts as to whether an act is reasonably contemplated by the employment are resolved in favor of the employee. (Ibid.; Burnett, supra, 37 Cal.App.2d at pp. 573–574, 99 P.2d 1089.)

The evidence presented at the workers’ compensation hearing indicated that the doors to the workplace were not opened at the same time every morning. Usually they were opened early, but at times they were not unlocked until after the official starting time of 8 a.m. Waiting outside the employer’s premises was, therefore, “reasonably contemplated by the employment.”

As the workers’ compensation judge noted, “[w]hen people are waiting for something to happen, they rarely stand in one spot; ‘they occupy.’ ” However, instead of idly pacing, Price made use of the time by adding oil to his car. His act was not “wholly unreasonable” but was “normal, proper and reasonably to be expected.” (Saska, supra, 9 Cal.App.3d at pp. 158, 160, 87 Cal.Rptr. 774.) Performing a minor personal task while waiting to begin work is a “normal human response.” Therefore, it is within the reasonable contemplation of the employment contract. (Id., at p. 159, 87 Cal.Rptr. 774.) As the court in Saska pointed out, “[h]uman services cannot be employed without taking the whole package.” (Ibid.; Fremont Indemnity Co. v. Workers’ Comp. Appeals Bd. (1977) 69 Cal.App.3d 170, 177, 137 Cal.Rptr. 847.)

In Saska, the employee was injured after work in the employer’s parking lot as he tried to start the car of a coworker. The court in Saska questioned the continuing utility of the employer benefit principle as a rationale for the personal convenience rule. Nevertheless, the opinion cites goodwill among employees as a potential benefit to the employer, just in case “the element of ‘benefit’ retains any validity today.” (Saska, supra, 9 Cal.App.3d at p. 160, 87 Cal.Rptr. 774.) Under the benefit test applied in Saska, the employer here was benefited because Price was ensuring that his car, which he drove to work, remained operable. (See Burnett, supra, 37 Cal.App.2d at pp. 573–574, 99 P.2d 1089 [employee’s act of hemming her dress furthered her work “ ‘in a remote sense’ ” because she was required to be “neat in dress and general appearance”].)

Moreover, as Price put oil in his car, he provided a benefit to the employer by waiting near the premises so he could enter and begin work as soon as the doors were unlocked. Although Price was engaged in a personal act, he was also serving the employer’s interests. Therefore, the injury may be viewed as occurring within the course of employment under the “dual purpose” rule. “[W]here the employee is combining his own business with that of his employer, or attending to both at substantially the same time, no nice inquiry will be made as to which business he was actually engaged in at the time of injury, unless it clearly appears that neither directly or indirectly could he have been serving his employer.” (Lockheed Aircraft Corp. v. Ind. Acc. Com. (1946) 28 Cal.2d 756, 758–759, 172 P.2d 1; accord Bramall, supra, 78 Cal.App.3d at p. 157, 144 Cal.Rptr. 105.)

In Dimmig, this court held that an injury incurred in connection with attendance at night school was reasonably contemplated by the employment because it benefited the employer as well as the employee. (Dimmig, supra, 6 Cal.3d at pp. 865–866, 101 Cal.Rptr. 105, 495 P.2d 433.) Dimmig falls somewhere between the personal convenience and the dual purpose doctrines. As in personal convenience cases, the court applied the “reasonably contemplated” test and pointed to the benefit to the employer. (Ibid. ) However, attendance at night school is not an act of “personal comfort or convenience” which temporarily improves employee efficiency. Dimmig is more akin to the “dual purpose” cases where an off-premises activity provides a direct benefit to the employer and benefits the employee as well. (See Bramall, supra, 78 Cal.App.3d at pp. 156–157, 144 Cal.Rptr. 105 [treating Dimmig as a “dual purpose” case].)

III.

Price was within the course of his employment when he was injured, and he should be compensated for his injuries. A passing car struck him after he had finished his journey to work and while he was waiting for the doors of his employer’s premises to be unlocked. The injury was not sustained “during the course of a local commute” so the going and coming rule does not apply.

Accordingly, the decision of the board is annulled and the cause remanded for further proceedings consistent with the views expressed herein.

MOSK, KAUS, BROUSSARD, REYNOSO and GRODIN, JJ., concur.

LUCAS, Justice, dissenting.

I respectfully dissent.

Applicant Price was injured outside the work premises, before working hours, while engaged in an act of personal convenience. Under such circumstances, his injuries were not compensable under the workers’ compensation laws.

The majority holds that all injuries that occur while awaiting entry to the employment premises are compensable. (Ante, pp. 677–678 of 209 Cal.Rptr., pp. 256–257 of 693 P.2d. I fail to see how the act of awaiting entry before ordinary working hours reasonably may be deemed to arise “out of and in the course of the employment.” (Lab.Code, § 3600.) Moreover, I think it is anomalous that compensation must be granted to one, such as applicant, who is injured while attending his parked car, but is denied to an employee who has already left his car and is injured while walking toward his workplace. (General Ins. Co. v. Workers’ Comp. Appeals Bd. (Chairez) (1976) 16 Cal.3d 595, 598–600, 128 Cal.Rptr. 417, 546 P.2d 1361 [adopting the “premises line” test].) Surely, in neither case has the ordinary morning “commute” ended, for in neither case has the employee actually entered the work premises. This fact is even more apparent here, where the injury occurred before working hours had commenced.

I would affirm the board’s decision denying benefits.

HARRIS v. SEARS, ROEBUCK & COMPANY

485 So. 2d. 965 (La. Ct. App. 1986)

Opinion

GRISBAUM, Judge.

ISSUES

We are called upon to determine two issues:

(1) Whether the trial court erred in granting a motion for new trial submitted prior to its signing the initial judgment and

(2) Whether the trial court was “clearly wrong” in its finding that the plaintiff’s decedent’s compensation claim for benefits, at the time of his death, was within the ambit of worker’s compensation coverage as defined by La.R.S. 23:1031.

FACTS

The record shows the plaintiff’s decedent, Mr. Leroyal Harris, Sr., reported for work at Sears’ warehouse on Whitney Avenue on May 3, 1978. By 10 or 10:30 a.m., the warehouse floor area was covered by 14 to 16 inches of standing water; the office area, by 6 to 8 inches. The employees, in the wake of continuing heavy rain, were told they could leave. During the day, water rose as high as the glove compartments of cars parked in the Sears parking lot. Mr. Harris did not leave when he first learned he might but waited around a bit to see what the rain would do. Only after the building was completely flooded did he elect to leave. Mrs. Deanna Horne, Mr. Harris’ clerical supervisor, testified that he indicated he was very nervous, that he was going home to his family, that there was some problem at home, and that, despite Mrs. Horne’s advising him to wait at least until some Sears repair technicians who were pushing cars to higher ground returned so that they might push him out, Mr. Harris left. Mr. Harris drove his vehicle from the Sears parking lot and down Whitney Boulevard. Within a block of the Sears building, the vehicle began to float and was swept into the Whitney Canal. Mr. Harris crawled atop the vehicle and the Sears technicians, Mr. Alan Sekinger and Mr. Glenn Steib, who had returned from pushing a car, tried to rescue him, but unsuccessfully. He was sucked into a culvert and drowned.

From a procedural standpoint, we note the trial on the merits was held on January 28, 1985, at the close of which the court orally gave judgment for the defendant. On February 4, 1985 (according to the brief for defendant-appellant), the court signed a written judgment in accord with the oral decree (this judgment not being part of our record). The record shows that, prior to the signing of the elusive judgment, appellee, on February 1, 1985, filed a motion for a new trial (limited to reargument). The court signed the attached show cause order that same day. A hearing was held on March 13, 1985, and a judgment in favor of the plaintiff was signed on Arpil 16, 1985. The defendant thereafter moved for appeal on May 9 and filed a suspensive appeal bond on May 10, 1985.

ANALYSIS

We adopt the rationale expressed by our fellow Third Circuit in Jeanmard v. Sears, Roebuck and Co., 436 So.2d 575, 576 (La.App. 3d Cir.1983), which states:

The Supreme Court in U.S. Fire Insurance Company v. Swann, 424 So.2d 240 recently stated: “First of all there is the philosophy underlying the Code of Civil Procedure, as stated by Henry G. McMahon, coordinator of the Code of Civil Procedure [,] in the introduction to the Code:

The new code embodies procedural rules designed to permit the trial of a case to serve as a search for the truth, and to have its decision based on the substantive law applicable, rather than upon technical rules of procedure.

This procedural philosophy is embodied in La.C.C.P. art. 5051, which provides:

The articles of this Code are to be construed liberally, and with due regard for the fact that rules of procedure implement the substantive law and are not an end in themselves.

To the same effect is the recently expressed practical holding of our fellow First Circuit in Hanson v. Perkins, 484 So.2d 705, No. 85–CA–0993, slip op. (1st Cir. Dec. 26, 1985). In disposing of a motion to dismiss, the Court reasons that the technical prematurity of a motion for new trial which was filed before the signing of a judgment is cured by the signing of the judgment, the motion becoming effective on the date of the signing. Therefore, the appellant’s argument has no merit.

As to the merits, we note the trial court, in its reasons for judgment, carefully states:

This Court is of the opinion that plaintiff’s claim falls within the ambit of the Workmen’s Compensation Act primarily in light of the Louisiana Supreme Court holding in Edwards v. Louisiana Forestry Commission [221 La. 818], 60 So.2d 449 (La.1952), which states:

... no more is necessary than that the work subject the employee to a peril which comes from the fact that he is required to be in the place where it strikes when it does so. It is immaterial whether the place is the employer’s premises or a street; whether the risk arises from physical features or human agencies connected with the place; whether it is a common occurrence or an extraordinary happening; one which threatens only employees at work or others also.

Id., at 451 (citing Hartford Accident & Indemnity Co. v. Cardillo, 72 App.D.C. 52, 112 F.2d 11, 15, certiorari denied by the United States Supreme Court, 309 U.S. 689, 60 S.Ct. 891, 84 L.Ed. 1032). Furthermore, the United States Supreme Court in O’Leary v. Brown-Pacific-Maxon, Inc., 340 U.S. 504, 71 S.Ct. 470 [95 L.Ed. 483] (1951) held that

[t]he test of recovery is not a causal relation between the nature of employment of the injured person and the accident.... Nor is it necessary that the employee be engaged at the time of the injury in activity of benefit to his employer. All that is required is that the “obligations or conditions” of employment create the “zone of special danger” out of which the injury arose. ... A reasonable rescue attempt, like pursuit in aid of an officer making an arrest, may be “one of the risks of the employment, an incident of the service, foreseeable, if not foreseen, and so covered by the statute.” (Citations omitted).

Id., 340 U.S. at 506, 507, 71 S.Ct. at 471, 472. Lastly, as Justice Sutherland stated in Cudahy Packing Co. of Nebraska v. Parramore, 263 U.S. 418, 44 S.Ct. 153, 154, [68 L.Ed. 366], “whether a given accident is so related or incident to the business must depend upon its own particular circumstances. No exact formula can be laid down which will automatically solve every case.”

In sum, this Court adopts the concept espoused by the Louisiana Supreme Court in Lester v. Southern Casualty Insurance Co., 466 So.2d 25 (La.1985), which holds that

... it is well[-]settled that the provisions of the Worker’s Compensation Law must be given a liberal interpretation in order to effectuate its beneficient purpose of relieving workmen of the economic burden of work[-]connected injuries by diffusing the cost in the channels of commerce. (Citations omitted).

Id., at 28.

While we entertain reservations as to some aspects of the trial court’s rationale, we agree with the conclusion reached. As the court indicates, the Worker’s Compensation Law must be accorded a liberal interpretation. The Compensation requirement that an employee have received “personal injury by accident arising out of and in the course of his employment,” La.R.S. 23:1031, defines an ambit of liability broader than that of both the common law and Louisiana tort formulations of “scope of employment.” Edwards v. La. Forrestry Comm’n, 221 La. 818, 60 So.2d 449, 451 (1952); Harris v. Hymel Store Co., 200 So.2d 84, 87 (La.App. 1st Cir.1967), writ denied, 202 So.2d 657 (La.1967). Under principles of Compensation, nexus as much as cause is pertinent to ascertaining liability. As the United States Supreme Court early observed,

The test of recovery is not a causal relation between the nature of the employment of the injured person and the accident * * *. Nor is it necessary that the employee be engaged at the time of the injury in activity of benefit to his employer. All that is required is that the “obligations or conditions” of employment create the “zone of special danger” out of which the injury arose.

O’Leary v. Brown-Pacific-Maxon, Inc., 340 U.S. 504, 71 S.Ct. 470, 471 95 L.Ed. 483 (1951), cited in Edwards, supra, at 451. (Punctuation and italics as in Edwards.)

The inquiries into nexus generate the general jurisprudential rule that “ordinarily, an employee injured while going to or returning from work is not entitled to compensation because the injuries are considered as not arising during the course of the employment.” Thomas v. RPM Corp., 449 So.2d 18, 20 (La.App. 1st Cir.1984), writ denied, 450 So.2d 965 (La.1984); Thomasee v. Liberty Mutual Ins. Co., 385 So.2d 1219, 1221 (La.App. 3d Cir.1980), writ denied, 392 So.2d 675 (La.1980); Templet v. Intracoastal Truck Line, Inc., 255 La. 193, 230 So.2d 74, 77 (1969). In Templet, Justice McCaleb indicates that this rule is premised on the employer’s lack of supervision and control over the employee at such times. “Therefore,” he concludes, “any extension of coverage [to such times] ... must necessarily be founded on the existence of conditions surrounding the locality of the employment which makes it more hazardous to the employee than it would have been had he not been employed.” Id. at 77.

The exception broached by Justice McCaleb has come to be termed the threshold doctrine. Most classically, the doctrine means that the worker who, en route to or from his workplace, rudely encounters a train on tracks situated just beyond the main gates of his employer’s factory will be covered by compensation anyhow. Likewise, the employee who manages safely to leave the premises only then to be singed by embers belched from his employer’s chimneys. The doctrine as explicated in Templet, supra, requires both (1) a distinctive travel risk for the employee in going to or coming from work and (2) this risk’s existing in an area immediately adjacent to his place of work. Templet at 80.

In its Reasons for Judgment, quoted above, the trial court relies in part on the threshold doctrine, finding that Mr. Harris was subjected to an elevated flood hazard by virtue of his employment, such hazard being indeed proximate to the place of employment and enveloping the only route of escape therefrom. While we find this reasoning persuasive and, by analogy, instructive as to the proper result, we conclude that the direct application of the threshold doctrine to these facts is unnecessary. The hazard to which Mr. Harris ultimately succumbed—the flooding—presented itself at his place of employment during the time of employment. It follows elementarily, then, that this hazard arose out of and in the course of the employment. The nexus is established notwithstanding that the cause proper devolved from an act of God.

Finally, in addition to the above rationale, our standard for review requires us to give great weight to the trial court’s factual findings as to the work-related nature of an accident. These findings should not be disturbed where there is evidence before the trier of fact which, upon the latter’s reasonable evaluation of credibility, furnishes a reasonable, factual basis for the trial court’s finding, unless such finding is clearly wrong. Crump v. Hartford Acc. and Indemnity Co., 367 So.2d 300, 301–02 (La.1979). Accordingly, after a careful reading of the record, we cannot say the trial court did not have a reasonable, factual basis for its factual conclusions, nor can we say its findings are clearly wrong.

For the reasons assigned, the judgment of the trial court is affirmed. All costs of this appeal are to be assessed against the appellant.

AFFIRMED.

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ILLINOIS BELL TELEPHONE CO. v. INDUSTRIAL COMMISSION

546 N.E.2d 603 (1989)

Opinion

Justice STAMOS delivered the opinion of the court:

Claimant, Mary R. Conoboy, was injured when she slipped and fell in a common area of the Woodfield Shopping Mall shortly after leaving her place of employment on the second floor of the mall. Claimant filed an application for adjustment of claim under the Workers’ Compensation Act (the Act) (Ill.Rev.Stat.1985, ch. 48, par. 138.1 et seq.). The arbitrator awarded claimant compensation. The Industrial Commission adopted the arbitrator’s decision, and the circuit court modified the award and confirmed the remainder of the Commission’s decision. The Industrial Commission division of the appellate court reversed the circuit court’s decision and vacated all awards of compensation, finding that claimant’s injury did not arise out of and in the course of her employment (173 Ill.App.3d 272, 123 Ill.Dec. 38, 527 N.E.2d 501), as required by the Act (Ill.Rev.Stat.1985, ch. 48, par. 138.2). The appellate court certified that a substantial question existed warranting review by this court, and we granted claimant’s petition for leave to appeal (107 Ill.2d R. 315(a)).

This appeal raises the issue of whether an injury sustained by an employee of a tenant in a multilevel shopping mall building, while in a common area of the mall on her way home from work, arises out of and in the course of her employment.

An examination of Illinois Bell’s lease agreement indicates that the area in which claimant was injured was a “common area.” The landlord was solely responsible for the maintenance of the common areas of the mall; the lease also states that the common areas are to be maintained and operated at the sole discretion of the landlord. The landlord also has the right under the lease to prescribe regulations governing the use of common areas and to close temporarily any common area to make repairs or changes. Illinois Bell is required to pay a pro rata share of the expenses of maintaining the common areas.

We initially note that if undisputed facts upon any issue permit more than one reasonable inference, the determination of such issue presents a question of fact, and the conclusion of the Industrial Commission will not be disturbed on review unless it is contrary to the manifest weight of the evidence. Caterpillar Tractor Co. v. Industrial Comm’n (1989), 129 Ill.2d 52, 60, 133 Ill.Dec. 454, 541 N.E.2d 665; Orsini v. Industrial Comm’n (1987), 117 Ill.2d 38, 44, 109 Ill.Dec. 166, 509 N.E.2d 1005.

The purpose of the Act is to protect employees against risks and hazards which are peculiar to the nature of the work they are employed to do. (Orsini, 117 Ill.2d at 44, 109 Ill.Dec. 166, 509 N.E.2d 1005; Fisher Body Division, General Motors Corp. v. Industrial Comm’n (1968), 40 Ill.2d 514, 517, 240 N.E.2d 694.) An injury is compensable under the Act only if it “aris [es] out of” and “in the course of” the employment. (Ill.Rev.Stat.1985, ch. 48, par. 138.2.) The phrase “in the course of” refers to the time, place and circumstances under which the accident occurred. (Orsini, 117 Ill.2d at 44, 109 Ill.Dec. 166, 509 N.E.2d 1005; Chmelik v. Vana (1964), 31 Ill.2d 272, 278, 201 N.E.2d 434.) The words “arising out of” refer to the origin or cause of the accident and presuppose a causal connection between the employment and the accidental injury. (Caterpillar, 129 Ill.2d at 57, 133 Ill.Dec. 454, 541 N.E.2d 665; Chmelik, 31 Ill.2d at 277, 201 N.E.2d 434.) Both elements must be present at the time of the accidental injury in order to justify compensation. Caterpillar, 129 Ill.2d at 57, 133 Ill.Dec. 454, 541 N.E.2d 665; Orsini, 117 Ill.2d at 45, 109 Ill.Dec. 166, 509 N.E.2d 1005; Eagle Discount Supermarket v. Industrial Comm’n (1980), 82 Ill.2d 331, 337, 45 Ill.Dec. 141, 412 N.E.2d 492.

In Deal v. Industrial Comm’n (1976), 65 Ill.2d 234, 2 Ill.Dec. 374, 357 N.E.2d 541, this court upheld an award of compensation to a claimant who was injured while leaving his employer’s premises. The court found that evidence of the actual ownership of the cement apron upon which the claimant was standing when he was injured was not necessary to uphold compensation, because the doorway the claimant exited through was the only practical means of leaving the premises and the position of the exit created a greater degree of risk of injury to the claimant than to the general public.

Claimant in the case at bar testified that she was not required by her employer to use any particular mall entrance or exit and admitted using entrances and exits other than the one she was using when she was injured. For these reasons, we believe that claimant has failed to prove that she was required to be where the accident occurred.

The facts also fail to establish that claimant was exposed to a risk common to the general public to a greater degree than other persons. The common area where claimant slipped was open to the general public during the business hours of the mall. Although claimant testified that the floor was waxed and slippery, there is no evidence in the record that claimant was exposed to a greater risk by walking across the common area than that to which the public was exposed. Claimant argues that she was compelled to cross the common areas for access to reach her place of employment; her risk, therefore, was greater than that of the public. This court has held, however, that “the mere fact that the duties take the employee to the place of the injury and that, but for the employment, [s]he would not have been there, is not, of itself, sufficient to give rise to the right to compensation.” Caterpillar, 129 Ill.2d at 63, 133 Ill.Dec. 454, 541 N.E.2d 665; see State House Inn v. Industrial Comm’n (1965), 32 Ill.2d 160, 163, 204 N.E.2d 17; Schwartz v. Industrial Comm’n (1942), 379 Ill. 139, 145, 39 N.E.2d 980.

Claimant next argues that because the only possible way for her to get to and from her place of employment was to enter and exit through a mall doorway, and Illinois Bell is a mall tenant, the common area where she fell should be considered the premises of her employer. Claimant apparently seeks to have this court extend the parking lot exception to encompass common areas of malls or buildings in which an employer’s office or place of business is located. For the reasons following, we decline the invitation to expand this exception to the general premises rule.

In Chicago Transit Authority, the claimant was injured while riding an elevator from his seventh floor office in the Merchandise Mart in Chicago while on his lunch break. The appellate court stated that in cases involving injuries received by an employee during his lunch hour, the most critical factor in determining whether the accident arose out of and in the course of employment is the location of the occurrence. (Chicago Transit Authority, 141 Ill.App.3d at 869, 96 Ill.Dec. 213, 491 N.E.2d 27.) The court quoted one authority who has stated that “when the place of employment is a building, an injury incurred by an employee in that building is generally considered to have taken place on the employer’s premises so long as the employer ‘has some kind of right of passage, as in the case of common stairs, elevators, lobbies, vestibules, concourses, hallways, * * * through which the employer has something equivalent to an easement.’ ” (141 Ill.App.3d at 870, 96 Ill.Dec. 213, 491 N.E.2d 27, quoting 1 A. Larson, Workmen’s Compensation § 15.43, at 4-108 through 4-111 (1985).) Believing that “Illinois apparently follows this general rule” (141 Ill.App.3d at 870, 96 Ill.Dec. 213, 491 N.E.2d 27), based on its interpretation of Master Leakfinding, the court upheld the circuit court’s award of compensation to the claimant.

Under the facts of this case, we decline to adopt a new exception to the general premises rule for injuries suffered off the premises of the employer in the common area of a mall where claimant’s employer is located. Illinois Bell had no control over the common area where claimant was injured. The landlord is solely responsible for the maintenance of the common areas of the mall and even had the right to close temporarily any common area to make repairs or changes. Illinois Bell neither provided nor maintained the common areas of the mall. Although claimant testified that she and others had previously informed Illinois Bell that the common areas were slippery, Illinois Bell had no right to interfere with the landlord’s sole discretion to maintain and operate the common areas.

We finally note that claimant’s citation to Chicago Tribune Co. v. Industrial Comm’n (1985), 136 Ill.App.3d 260, 91 Ill.Dec. 45, 483 N.E.2d 327, in which the court upheld an award of compensation to a claimant who fell and was injured in a gallery open to the public on the first floor of her employer’s building, is inapplicable, because, as the opinion specifically states, the “claim arose out of a slip and fall on respondent’s premises” (136 Ill.App.3d at 261, 91 Ill.Dec. 45, 483 N.E.2d 327). For all of the above reasons, we find that the decision of the Industrial Commission was against the manifest weight of the evidence.

For all of the above reasons, the judgment of the appellate court is affirmed.

Judgment affirmed.

Justice CALVO took no part in the consideration or decision of this case.

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MERRILL v. J. C. PENNEY COMPANY

256 N.W.2d 518 (Minn. 1977)

Opinion

PER CURIAM.

The Worker’s Compensation Court of Appeals affirmed an award of compensation benefits to Theresa J. Merrill for disability caused by injuries she sustained in December 1972 and April 1973 while an employee of J. C. Penney Company. Employer and Travelers Insurance Company, its insurer at the time of the 1972 injury, sought review of the decision, challenging the board’s finding that this injury arose out of and in the course of Mrs. Merrill’s employment. We affirm.

Employee worked at Penney’s store in Brookdale, a shopping center owned by Dayton Hudson Corporation. Dayton Hudson retained control over the parking lots and other common areas in the center, entering into leases which obligated it to furnish its tenants and their customers parking space and required the tenants to pay on a pro rata basis the cost of maintaining the parking facilities. Most of the year Penney’s employees parked in an area near the store. A few weeks before Christmas 1972, Dayton Hudson sent a directive to Penney’s stating that Penney’s employees should park in the more distant overflow parking lot so that a greater number of customers could obtain parking spaces near the stores in the center. Penney’s store manager approved the directive and placed it on the employees’ bulletin board. He testified that Penney’s was responsible for enforcing the directive.

Employee was injured when she fell in the overflow parking lot on December 19 shortly before her workday was to begin. Penney’s and Travelers contend she did not sustain a compensable injury because the fall did not occur on Penney’s premises and because she had been exposed only to risks to which the public as a whole was exposed and not to hazards peculiar to her employment.

The relevant statute, Minn.St. 176.011, subd. 16, provides in part:

Because of the “premises” requirement, an employee injured in going to or away from the place he works ordinarily is not entitled to benefits unless he is engaged in a special service for his employer. 1 Larson, Workmen’s Compensation Law, s 15.00. Employee contends, however, that her injury occurred on Penney’s premises.

This court has not considered whether a shopping center parking lot, owned, maintained, and controlled by the owner of the center but available for its tenants’ use pursuant to leases which require them to pay pro rata the cost of maintaining the lot, can be a part of a tenant-employer’s premises. We have recognized that premises may cover an area greater than the actual working place of the employee. In Goff v. Farmers Union Accounting Service, Inc., Minn., 241 N.W.2d 315 (1976), a parking lot across the street from the building in which the employee worked, used by employees and the public and not owned by the employer, was considered part of the employer’s premises. In Faust v. State, Dept. of Revenue, Minn., 252 N.W.2d 855 (1977), that part of the State Capitol Mall complex across the street from the Centennial Building, in which the employer had offices, was held to be a part of the employer’s premises upon evidence that employees commonly used the mall as a place to eat lunch.

Other jurisdictions have held shopping center parking lots to be part of the premises of a tenant-employer where the employer has permitted his employees to use them. See, 1 Larson, Workmen’s Compensation Law, s 15.41, p. 4-46:

“ * * * (I)f a shopping center parking lot is used by employees of businesses located in the center, the rule (that a parking lot used by employees is a part of the premises) is applicable.”

The basis for the rule is stated in Frishkorn v. Flowers, 26 Ohio App.2d 165, 167, 55 Ohio O.2d 310, 311, 270 N.E.2d 366, 368 (1971):

“It would be impractical and illogical to apply this principle (that an area cannot be a part of the employer’s premises if he does not have control over it) to a shopping plaza consisting of multiple independent businesses, each of which would have to be an owner in common with all the other tenants in order to share a nebulous control over its geographical confines and simulate a joint zone of employment. Such concept is too narrow and restrictive and is as outmoded as holding that an accident sustained by an employee going to or leaving work by means of an elevator or stairway in a building shared in common by different tenants, did not occur in the course of or arise out of the employment because the elevator or stairway was not part of the premises over which the employee’s particular employer exercised any control at the time and place of the accident.

“In contrast, the control of the premises test in this case should be viewed in the light of the control the employer has over claimant’s work activities in the employment environment and whether such activities were reasonably incidental to and part of the necessary obligations of his job. * * *

“In the instant case, the parking area was appellant’s normal and customary means to and from his employer’s premises * * * . In reality, the employer and the other tenants of the Great Northern Shopping Center, having reciprocal rental rights and privileges, were also accorded the common use and access of the parking area. Logically, to that extent, this was tantamount to an essential expansion of their respective premises for the purpose of adequately serving and furthering their business interests.”

Respondent is allowed $350 attorneys fees.

Affirmed.

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PALLOTTA v. FOXON PACKING CORPORATION

477 A.2d 82 (R.I. 1984)

Opinion

This is an original petition for compensation under the Workers’ Compensation Act. It is before us on the employee’s appeal from a decree of the full commission affirming the decree of the trial commission denying and dismissing the employee’s petition.

The employee, upon advice of the plant manager, was taken to Roger Williams Hospital. She was examined by Dr. Manoel Falcao, who prescribed treatment. The doctor stated that as a result of the injury, the employee was totally disabled.

The trial commissioner denied and dismissed the employee’s petition, making the following findings of fact:

“[T]here was no evidence presented by the petitioner that the passageway between the two (2) buildings was under the control of the respondent nor was there any testimony the respondent had control or joint control over the area where the petitioner was sitting when she was struck by the ball, namely, on the property of Wal-Kar Engraving Co.

“ * * *

“After a review of all of the evidence, I do not feel the petitioner has established a nexus or causal relationship between the injury and her employment to render the injury compensable; nor that the incident bore some relationship to her employment.”

He further stated that

“1. The petitioner has failed to prove by a fair preponderance of the credible evidence that on or about July 20, 1978 the petitioner sustained a personal injury to her cervical spine which arose out of and was sustained in the course of the petitioner’s employment with the respondent or was connected therewith or referable thereto.

“2. The petitioner has failed to prove by a fair preponderance of the credible evidence that any incapacity for work which petitioner had subsequent to July 20, 1978 was due to the injury sustained on July 20, 1978, which injury arose out of and in the course of the employee’s employment with the employer.”

The full commission affirmed the decree of the trial commission, holding that the employee failed to prove that the injury arose out of and in the course of the employment, was connected therewith, or was referable thereto.

It is well established that in workers’ compensation cases, the findings of fact of the commission are conclusive absent fraud. On review our function is to ascertain whether there is competent legal evidence to support the findings of the commission. Zuchowski v. United States Rubber Co., 102 R.I. 165, 169, 229 A.2d 61, 63 (1967). We further consider it well settled that the question of whether or not the claimant has met the burden of showing that the injury arose out of his employment is a mixed question of law and fact. Bottomley v. Kaiser Aluminum & Chemical Corp., 441 A.2d at 554; DeNardo v. Fairmount Foundries Cranston, Inc., 121 R.I. 440, 443-44, 399 A.2d 1229, 1232 (1979).

The employee relies on the case of Bergeron v. Kilnic Co., 108 R.I. 313, 274 A.2d 753 (1971). That case is distinguishable from the case at bar. In Bergeron, the employee was injured on a driveway when she was returning to work after eating her lunch. It was uncontroverted that the only manner of entering the place of employment was by means of this driveway. The employer did not provide a dining area and knew of the employee’s practice of going home to eat her lunch. This court held as a matter of law that the employee was injured during the period of employment, at a place where she had a right to be, while doing something that was incidental to her employment and that, therefore, her injury arose out of and in the course of her employment. Id. at 319, 274 A.2d at 756.

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WESTERN GREYHOUND LINES v. INDUSTRIAL ACCIDENT COMMISSION

225 Cal. App. 2d 517

SUMMARY

TAYLOR, J.

This case comes before us on a writ of review to determine the legality of an order of the Industrial Accident Commission awarding temporary disability to applicant, Geneva I. Brooks, employed by petitioner, Western Greyhound Lines, at the time she was injured. It is urged by the petitioner that the applicant did not prove, as required by Labor Code section 3600, that her injuries arose out of and occurred in the course of her employment and that the commission’s order should therefore be annulled.

The petitioner contends that the applicant’s errand was entirely for her own pleasure and was unrelated in any way to her employment.

We do not agree, as contended by the petitioner, that the holding in Western Pipe & Steel Co. hinges upon the payment of double pay for overtime. The court said at page 113: “Obviously, if an employee is deemed to be acting in the course of his employment in going to or coming from his work when his compensation covers that time, it would seem clear that he is likewise acting within the course of his employment when his hourly wage continues during the time he is permitted to eat lunch or dinner off the premises.” (Italics added.) In Kobe v. Industrial Acc. Com., 35 Cal.2d 33 [215 P.2d 736], our Supreme Court approvingly quoted from Western Pipe & Steel Co. as follows: “ ‘When the employer pays the employee at an hourly rate during his meal hours ... it seems to be, and is a reasonable inference, that by such an arrangement the employer has impliedly agreed that service will continue during such period.’ ” (P. 35.) (Italics added.) The words “especially when those meals are taken during an overtime period” were pointedly omitted from the quotation.

It has been held that acts of the employee for his personal comfort and gain while at work, even though performed off the employer’s premises, may not interrupt the continuity of employment, particularly where the employee’s comfort is also of benefit to the employer. (Western Pac. R.R. Co. v. Industrial Acc. Com., 193 Cal. 413 [224 P. 754]; Leffert v. Industrial Acc. Com., 219 Cal. 710 [28 P.2d 911].) Here the commission could well have concluded that it was very much to the advantage of the employer for the bus driver to refresh herself with a cup of coffee at 1:45 a.m. before leaving on the next run.

Presumably, the applicant would not have been at Foster’s Restaurant at Seventh and Market Streets at 1:45 a.m. had she not been working on a late night shift. She was drinking coffee because she had been driving a bus and would be again in a short time. Thus, she was exposed to the danger she encountered as a Greyhound employee. Since she was paid during this time, her employment continued during such time and all of the cases dealing with injuries and assaults during employment are applicable (Pacific Indemnity Co. v. Industrial Acc. Com., 86 Cal.App.2d 726 [195 P.2d 919]; Truck Ins. Exch. v. Industrial Acc. Com., 147 Cal.App.2d 460 [305 P.2d 55]; California Cas. Indem. Exch. v. Industrial Acc. Com., 21 Cal.2d 461 [132 P.2d 815]; 1 Larson’s Workmen’s Compensation Law, p. 112). We conclude that the applicant’s injuries occurred in the course of and arose out of her employment.

The award is affirmed.

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GIBBERD v. CONTROL DATA CORPORATION 424 N.W.2d 776 (Minn. 1988)

Opinion

KELLEY, Justice.

The ultimate issue for resolution in this case is whether the dependents of an employee, a victim of a random street killing, are entitled to recover workers’ compensation benefits from his employer when the victim was killed while away from the employer’s premises during his meal break. A compensation judge held that they were not. The workers’ compensation court of appeals (WCCA) reversed, and awarded dependency and funeral benefits. We reverse and reinstate the decision of the compensation judge.

The CDC facility in St. Paul, where Gibberd worked, is known as a World Distribution Center. It is located immediately south of U.S. Interstate 94. At the facility, CDC employs approximately 400 people on the day shift, 20 people on the second shift, and 5 people on the third shift. CDC located the World Distribution Center at its current location as part of a corporate policy favoring building of work facilities in so-called “depressed” inner-city areas. This policy coincides with widely publicized and generally known efforts of St. Paul municipal authorities to address social and economic problems in that same general area by encouraging renovations of commercial and residential buildings located in the area.

CDC provided a cafeteria on its premises for employees. Because most employees worked on the day shift, this cafeteria closed at 3 p.m. Vending machines on the premises provided candy, popcorn, sandwiches, potato chips, etc. A microwave oven was also available for use by employees. CDC had no implied or express policy which required employees to leave the CDC premises to eat out. Management did encourage employees to patronize the cafeteria during the hours it was open, but there existed no policy requiring employees to do so. In fact, CDC management was aware that many employees did take their lunch break away from the premises—particularly at an establishment known as Wendy’s Fast Food Restaurant located approximately 7/10th of a mile from the plant.

Gibberd was employed as a computer consultant. He was considered an “exempt” employee. As an “exempt” employee, although his regularly scheduled working hours were 8 a.m. to 5 p.m., he had considerable latitude in setting his own working hours. However, as an exempt employee, any hours worked over 40 hours per week were uncompensated. For some time before and on the day of the assault, Gibberd had been working on a project involving retrieval of information from broken computers. Because demand for computer time was heavy during the regular 8 to 5 shift, when most of the CDC World Distribution Center employees were on duty, during August 1985, while working on this project, Gibberd worked frequently at night and on weekends.

On August 26 at approximately 4:15 p.m. and later about 7:15 p.m., Gibberd informed his family by telephone that he would be working late and not be coming home to eat. In the latter conversation, he mentioned he would shortly go out for a “bite to eat.” He actually signed out on CDC’s security log at 8:05 p.m. He apparently did not shut down the computer on which he was working because it was found to be running the next morning. Likewise, his briefcase was found open; the lights at his work station were on; and his books and papers were covering his desk.

No CDC employee saw Gibberd after he signed out. However, about one-half hour later, an eyewitness noticed Gibberd walking south on the east side of Dale Street in the direction of and approximately four blocks from the World Distribution Center. Suddenly an unidentified male accosted Gibberd; placed an armlock on his neck; shot him in the head with a pistol; and, after Gibberd was on the ground, shot him a second time in the head.

Findings made by the compensation judge were: (1) No causal connection existed between Gibberd’s death and his employment; (2) No personal connection existed between Gibberd and his assailant; (3) Gibberd’s death did not occur in, on, or about the premises of CDC; and (4) Gibberd’s death did not arise out of and in the course of his employment with CDC. On appeal to the WCCA those “findings” were rejected and in their stead the WCCA entered “findings” diametrically opposite thereto, to-wit: that “as a matter of law” Gibberd’s death arose out of his employment; that at the time of his death Gibberd was engaged “in, on, or about the premises where his services required his presence”; that his death was compensable since the assault occurred because of his employment and not for personal reasons; and that “it must be inferred” that Gibberd’s employment exposed him to a different and greater hazard of injury from assault than if he had been pursuing ordinary personal affairs.

The appropriate standard of review is of pivotal significance in the resolution of the issues raised by this case since the WCCA essentially rejected the compensation judges’ findings and substituted its own. For many years prior to 1983 upon review of referee or compensation judge findings, first the Industrial Commission and later the WCCA could, in essence, ignore those findings and proceed to find the facts anew by giving little or no deference to the findings of the referees or compensation judges—a procedure basically followed by the WCCA in this case. See, e.g., Dotstry v. Radisson Hotel, 266 N.W.2d 716, 717 (Minn.1978); Townsend v. Nelson, 308 Minn. 374, 376, 242 N.W.2d 607, 608–09 (1976). However, as a result of amendments made to Minn.Stat. § 176.421, subd. 1(3) and Minn.Stat. § 176.441, subd. 1, by enactment of 1983 Minnesota Laws, chapter 301, the theretofore essentially unrestrained power of the WCCA to set aside compensation judge findings and orders was considerably circumscribed. Act of June 8, 1983, ch. 301, §§ 148 and 151, 1983 Minn.Laws 1558, 1668–70. See, e.g., Hengemuhle v. Long Prairie Jaycees, 358 N.W.2d 54, 59–60 (Minn.1984). Thereafter, the former plenary discretion resting in the WCCA upon review to disregard factual findings of a compensation judge was limited in that if “more than one inference may reasonably be drawn from the evidence, the findings of the compensation judge are to be upheld.” Id. at 60. In Hengemuhle we further held that the WCCA is not “to substitute its view of the evidence for that adopted by the compensation judge if the compensation judge’s findings are supported by evidence that a reasonable mind might accept as adequate.” Id. See also Polaschek v. Asbestos Products, Inc., 361 N.W.2d 37, 42 (Minn.1985) (reinstating a finding of a compensation judge that a reasonable mind could accept as adequate); Jacobowitch v. Bell & Howell, 404 N.W.2d 270, 274 (Minn.1987); Hodge v. Hodge Constr., 376 N.W.2d 694, 698 (Minn.1985).

In Hanson, likewise, the only permissible inference from the known facts was that the assault on Hanson arose out of his employment. At the time of the assault, Hanson, a traveling salesman, although away from his employer’s premises, was undoubtedly engaged in his employment at the precise time of the assault. The purpose of his trip from his employer’s premises to his personal automobile was not personal to him; rather, it was to further the interests of his employer. Hanson was working at night with his employer, and had been marking and tagging samples and placing the samples in sample cases. He left the employer’s premises to get his car so that the sample cases could be transferred into it preparatory to his next day’s sales trip into Iowa. It was while on that errand to get the car that he was assaulted. Under those circumstances, a holding that his death “arose out of his employment” is not only understandable but any other conclusion would have been logically impermissible.

In neither Corcoran nor Hanson did facts exist from which any inference other than that the assault “arose out of” the employment could be drawn. In the instant case, that is not so. In fact, there are no facts in the record that permit an inference that at the time of the assault on Gibberd he was in any way providing a service to his employer. Moreover, since Corcoran and Hanson were decided, the standards of review for workers’ compensation cases have been curtailed, and the supposed remedial nature of workers’ compensation laws is no longer recognized by statutory direction. For these reasons, neither Corcoran nor Hanson afford precedent to hold that as a matter of law Gibberd’s death arose out of his employment.

In this case all that is known is that Gibberd was assaulted on a public street by a person who obviously intended to injure or cause his death. The compensation judge inferentially found the assault had no nexus with Gibbard’s employment. Facts exist from which an inference could be drawn that the assault may have been racially or socially motivated. In contrast, had Gibberd at the time of the assault been displaying or wearing his CDC identification badge, which, at best is conjectural, such fact if it existed might lend support to an inference that the assault was directed against him as a CDC employee. Thus, conflicting but permissible inferences both rest upon speculation. When the facts, and permissible inferences therefrom, support either inference, this court affirms the appropriate fact finder. See, e.g., Hanson v. Robitshek–Schneider Co., 209 Minn. 596, 600, 297 N.W. 19, 22 (1941) (at that time the Industrial Commission). When the WCCA inferentially substituted its own “findings,” which were no more supported by substantial evidence in the record as a whole than were those “findings” inferentially made by the compensation judge, under Hengemuhle the findings of the compensation judge, the appropriate fact finder, are to be upheld. Hengemuhle v. Long Prarie Jaycees, 358 N.W.2d at 60 (Minn.1984).

The underlying purpose leading to the institution of the workers’ compensation system—that employers bear the costs of damages sustained by employees and their survivors for injuries or death arising out of and in the course of the employment relationship—is not furthered by imposing responsibility upon employers for random assaults, having no nexus to the employment and which occur away from the employer’s premises at times when employees are in pursuit of their own personal ends. Such expansion, instead, would be antithetical to that basic purpose by converting the statutory workers’ compensation system into a compulsory health and accident insurance scheme by which every employer would be made liable for all injuries sustained by employees from the time of leaving for, and returning home from, work. Such a conversion involves policy considerations bearing a number of social, political, and fiscal ramifications that can more appropriately be addressed by the legislature, the branch of government which established and has historically monitored and changed the scope of coverage under the workers’ compensation system, rather than by this court.

We reverse the holding of the workers’ compensation court of appeals and affirm the conclusions of the compensation judge that the facts, and inferences reasonably to be drawn therefrom, do not establish that Raymond Gibberd’s death arose out of and in the course of his employment.

YETKA, Justice (dissenting).

I would affirm the court of appeals because I think it clearly acted within its authority to apply the Hanson v. Robitshek–Schneider Co., 209 Minn. 596, 297 N.W. 19 (1941), and Sweet v. Kolosky, 259 Minn. 253, 106 N.W.2d 908 (1960), decisions. The facts are not in dispute in this case; thus, the court applied its understanding of the law to those facts. It is this court which is exceeding its normal appellate review rules in overturning the Workers’ Compensation Court of Appeals, not the latter in reversing the compensation judge.

This was a high-crime area. The company knew that when it located its plant there. The employee was engaged in a special project that required him to work at night after regular hours. Thus, even though the majority opinion correctly points out that the statutes no longer require a liberal construction in favor of the employee, the court of appeals properly applied existing law. They did nothing more than this court has been doing in workers’ compensation cases for 70 years. Applying existing law is not a radical departure from the past.

In my view, the majority opinion creates a great uncertainty in the entire compensation law field. The opinion signals that this court will engage in fact-finding of its own in these cases and will not hesitate to substitute its findings for those of the Workers’ Compensation Court of Appeals in so doing. We have frequently criticized the Minnesota Court of Appeals for engaging in that same practice. We should follow our own advice on the subject.

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WINN-DIXIE STORES, INC. v. SMALLWOOD

516 So. 2d 716 (Ala. Civ. App. 1987)

Opinion

HOLMES, Judge.

This is a workmen’s compensation case.

Both parties moved for summary judgment on the issue of whether the employee was injured in an accident that arose out of and in the course of her employment.

The trial court granted the employee’s motion, finding that the employee’s injury was caused by an accident arising out of and in the course of her employment.

The employer appeals and we affirm.

We note that, since there is no dispute as to the facts in this case, the dispositive issue on appeal is whether the trial court erred in concluding that the accident which resulted in the employee’s injury arose out of and in the course of her employment. See Elliott v. Board of Equalization & Adjustment, 469 So.2d 602 (Ala.Civ.App.1984).

We also note that, in workmen’s compensation cases if there is any legal evidence to support the trial court’s findings, those findings will not be disturbed on appeal. Eddie Wallace’s Garage v. Arreaga, 406 So.2d 405 (Ala.Civ.App.1981).

The record reveals the following:

The employee lived in Russellville, Alabama, where she had worked for approximately five years at the local Winn-Dixie grocery store. The employee was informed by her employer that she would be working the first three days of the following week at the Winn-Dixie store in Moulton, approximately thirty miles from Russellville. She was also informed that an employee from a store in Florence would also be on “temporary assignment” in Moulton and that the two of them should arrange to travel to and from Moulton for those three days together. The two employees made such arrangements and each morning would meet at the Winn-Dixie in Russellville, traveling from there in one car to the Moulton store and then back to the Russellville store at the end of the day.

Although the employee in this case was not compensated for the time she traveled to and from Moulton, she was required to clock in at the distant store in Moulton at her regular time of 7:00 A.M. In her deposition she stated that there had been only one other time during her five-year employment that she had worked at a store other than the one in Russellville.

After her last day on temporary assignment in Moulton, the employee was injured in a car accident as she was returning with the other employee from the Moulton store back to the Russellville store. They had met at the Russellville store that morning to carpool. The accident occurred approximately midway between the two cities in the vicinity of Newburg.

The employee filed suit for workmen’s compensation benefits as a result of the injury caused by that accident. As indicated, summary judgment was entered in her favor, the only contested issue being whether the accident arose out of and in the course of her employment.

The employer contends on appeal that the trial court erred in concluding that the accident arose out of and in the course of the employee’s employment. We disagree.

It is true, as a general rule, that accidents which occur while the employee is traveling to and from work are not considered “arising out of and in the course of” his employment. Barnett v. Britling Cafeteria Co., 225 Ala. 462, 143 So. 813 (1932). There are, however, several well-established exceptions to the general rule. See American Automobile Insurance Co. v. Hinote, 498 So.2d 848 (Ala.Civ.App.1986).

The employer contends that the instant case does not fall within the exception to the general rule known as the “dual purpose” doctrine. The dual purpose doctrine recognizes that accidents occurring during travel to and from work “arise out of and in the course of employment if the trip involves performance of a service for the employer which would have necessitated a trip by someone if the employee had been unable to perform that service in connection with his personal journey.” See Eddie Wallace’s Garage, 406 So.2d at 406 (emphasis supplied).

As noted in Professor Larson’s treatise on workmen’s compensation, Judge Cardozo’s formula respecting this dual purpose doctrine has not been improved upon. Judge Cardozo said: “The test in brief is this: If the work of the employee creates the necessity for travel, he is in the course of his employment, though he is serving at the same time some purpose of his own....” See A. Larson, 1 The Law of Workmen’s Compensation § 18.12, at 4-252 to 253 (1985) (citing Marks’ Dependents v. Gray, 251 N.Y. 90, 93, 167 N.E. 181, 183 (1920)).

While we do not necessarily agree that to characterize this case as falling under that exception alone is dispositive, we nevertheless believe that the doctrine has some application to the case at bar. That is, the employer required the employee to travel to the Moulton store when the employee had been living in Russellville for five years and working at the local store there. That trip was necessitated by the furtherance of the employer’s business, and that temporary assignment created just that necessity for travel referred to by Judge Cardozo.

We believe, however, that the “special errand” exception is more closely applicable to the instant facts. Larson puts it this way:

“The special errand rule may be stated as follows: When an employee, having identifiable time and space limits on his employment, makes an off-premises journey which would normally not be covered under the usual going and coming rule, the journey may be brought within the course of employment by the fact that the trouble and time of making the journey, or the special inconvenience, hazard, or urgency of making it in the particular circumstances, is itself sufficiently substantial to be viewed as an integral part of the service itself.”

A. Larson, id., § 16.11, at 4-124 (emphasis supplied).

In analyzing this “special errand” exception, Larson focuses on several factors that should be taken into account when determining whether a specific case falls within the parameters of the exception. Larson notes that such factors as the irregularity or unusualness of the special errand, as well as the onerousness of the journey itself, are persuasive facts supporting the application of the special errand rule. See generally A. Larson, id., § 16.13.

He also notes the following:

“Although a demonstration that travel time was specifically paid for is one of the most reliable ways of making a case for the compensability of a going or coming trip, and is ordinarily sufficient in itself to support such a finding, the fact that the employee is not paid for his travel does not mean that the trip was not in the course of employment. Payment for time is only one of the evidences that the journey itself was part of the service; other grounds for reaching this conclusion are discussed throughout this section.”

A. Larson, id., § 16.23 at 4-180.

Among those other grounds is the actual length of the journey itself. To wit:

“The sheer size of the journey is frequently a factor supporting this conclusion, as in the successful cases involving trips of eight miles, 20 miles, 22 miles, 30 miles, 50 miles, 54 miles, 60 miles, 105 miles, 120 miles, 130 miles, and 200 miles.”

A. Larson, id., § 16.31 at 4-181, 200.

Thus, that the employee’s temporary assignment in Moulton was not within the regular or usual duties of her employment, that the temporary assignment involved a round trip of some sixty miles each day, and that the employer initiated a carpool for the employee are all pertinent and persuasive facts supporting the conclusion that the employee’s accident arose out of and in the course of her employment.

In addressing these types of cases involving exceptions to the general rule that normal travel to and from work is not covered by workmen’s compensation, we have often referred to the following statement of the supreme court.

“Every case involving these words should be decided upon its own particular facts and circumstances and not by reference to some formula. But it is usually said that the phrase ‘arise out of’ employment refers to employment as the cause and source of the accident.... We have said that the phrase ‘in the course of his employment’ refers to the time, place and circumstances under which the accident took place. An injury to an employee arises in the course of his employment when it occurs within the period of his employment, at a place where he may reasonably be and while he is reasonably fulfilling the duties of his employment or engaged in some incident to it.”

Massey v. United States Steel Corp., 264 Ala. 227, 230, 86 So.2d 375, 378 (1955).

The facts in this case support the trial court’s legal conclusion that the employee’s accident arose out of and in the course of her employment.

To reiterate: The employee had lived in Russellville for five years while working at the local Winn-Dixie store. She had only had one other temporary assignment during that period. She was informed by her employer that she would be working in a distant store and required to clock in at her normal working hour at that store location thirty miles away. Finally, her employer helped her to arrange a carpool back and forth from Russellville to the Moulton store with another Winn-Dixie employee under a similar temporary assignment. These facts support the trial court’s conclusion in this case.

In view of the above, the trial court did not err in rendering a summary judgment in favor of the employee in this case.

This case is due to be affirmed.

AFFIRMED.

BRADLEY, P.J., and INGRAM, J., concur.

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MARKS’ DEPENDENTS v. GRAY

251 N.Y. 90, 167 N.E. 181 (1929)

1. In determining whether the risks of travel are also risks of the employment the decisive test must be whether it is the employment or something else that has sent the traveler forth upon the journey or brought exposure to its perils. If the work of the employee creates the necessity for travel, he is in the course of his employment, though he is serving at the same time some purpose of his own. If, however, the work has had no part in creating the necessity for travel, if the journey would have gone forward though the business errand had been dropped, and would have been canceled upon failure of the private purpose though the business errand was undone, the travel is then personal, and personal the risk.

2. A plumber’s helper who had promised his wife, who was visiting in a near-by village, to call for her in the family car after his day’s work, was asked by his employer, who had heard of his proposed journey, to take his tools and do a trifling job, calling for fifteen or twenty minutes work at a house in the village, which there would have been no profit in doing at the cost of a special journey and which would have been postponed until some other time, had not the helper stated that he intended to make the trip. On the way he was injured in a wreck and died. An award of compensation to his dependents, under the Workmen’s Compensation Law, must be annulled. The employee was not placed upon the highway by force of any duty owing to his employer and the risk of travel was his own.

Matter of Marks v. Gray, 225 App. Div. 714, reversed.

Leo Waxman for appellants. The accident did not arise out of and in the course of any employment. (Ames v. N. Y. C. R. R. Co., 178 App. Div. 324; Devoe v. New York State Railways, 218 N. Y. 318; Kowalek v. N. Y. Constr. Co., 229 N. Y. 489; Coman v. Model Dairy Co., 210 App. Div. 583; New York Ind. Co. v. Industrial Acc. Commission, 261 Pac. Rep. 1106; London Guarantee & Acc. Co. v. Industrial Acc. Comm., 213 Pac. Rep. 977; Crawford v. State Industrial Comm., 239 Pac. Rep. 575; Foster v. Mallory Steamship Co., 217 App. Div. 870; 244 N. Y. 612; Johnson v. Faribault Bldg. Corp., 192 App. Div. 929; 229 N. Y. 626.)

Hamilton Ward, Attorney-General (E. C. Aiken of counsel), for respondent. The accident arose out of and in the course of the employment. (Watson v. Daum, Rogers, Spritzer Co., 35 State Dept. Rep. 766; 219 App. Div. 753; 246 N. Y. 548; Faulkner v. Stratton-Amsterdam Corp., 217 App. Div. 806; 245 N. Y. 542; Grieb v. Hammerle, 222 N. Y. 382.)

CARDOZO, Ch. J.

Award has been made under the Workmen’s Compensation Law (Cons. Laws, ch. 67) to the dependents of Isadore Marks for benefits found to be due by reason of his death. Whether the injury was one ‘arising out of and in the course of the employment‘ (Workmen’s Compensation Law, § 2, subd. 7; § 10) is the question to be answered.

We think the accident did not arise ‘out of and in the course of‘ any service that Marks had been employed to render. He was not making the journey to Shortsville at the request of his employer or for the purpose of doing his employer’s work. He was making it in fulfillment of a promise to call for his wife at the end of the day, and bring her home in the family car. If word had come to him before starting that the defective faucets were in order, he would have made the journey just the same. If word had come, on the other hand, that his wife had already returned, he would not have made the trip at all. The employment did not bring him on the journey or expose him to its risks. If that is so, it is not ‘out of the employment‘ that the injuries arose.

Applying this test, we hold that Marks was not placed upon the highway by force of any duty owing to his employer, and that the risk of travel was his own.

The order of the Appellate Division should be reversed, and the award annulled, with costs against the State Industrial Board in this court and in the Appellate Division.

CRANE, LEHMAN, KELLOGG and O’BRIEN, JJ., concur; POUND and HUBBS, JJ., dissent.

Order reversed, etc.

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POWERS v. LADY’S FUNERAL HOME

306 N.C. 728, 295 S.E.2d 473 (1982)

Opinion

MEYER, Justice.

The facts of the case are not in dispute. The claimant, Norwood Glenn Powers, was employed by Lady’s Funeral Home as a mortician and embalmer. On 29 July 1978, Mr. Powers began his employment at 8:00 a. m. He was to remain at the Funeral Home or on call at home until 8:00 a. m., the following morning. His duties included visiting the families of the deceased, making funeral arrangements, and embalming bodies. Apart from a one-hour break for supper, Mr. Powers worked at the Funeral Home until 10:30 p. m. on 29 July, when the night man arrived. The night man was not an embalmer. Thus during the remainder of Mr. Powers’ shift, he was required to remain at home ready to respond should his services be necessary during the night. During this time he could not leave home, was to respond immediately to a phone call from the Funeral Home and, according to his employer, his “duties would not have ceased on this occasion until 8:00 the next morning ....”

Mr. Powers received a call from the night man at about midnight. He immediately dressed, drove to the Funeral Home where he picked up the Funeral Home vehicle, and called on the family of the deceased. He then returned to the Funeral Home to embalm the body. He arrived back at his home at approximately 2:30 a. m. and parked his automobile in the driveway which inclined toward the back door of his home. The automobile rolled down the incline and struck him as he approached the house, knocking him through the door, breaking both of his legs and crushing his ankles.

In denying the award, the Deputy Commissioner found that the claimant’s injury was sustained by accident, but that, although the journey in response to the call qualified as a special errand, “the journey itself only begins from the time the claimant physically leaves his property or premises... and [the journey] only continues thereafter until the claimant physically returns to his property or premises upon completion of his duties, in this case at the time he actually left the public street or highway located adjacent to his residence and was again physically present on his property.” The Full Commission affirmed, with one commissioner dissenting. The dissent by Commissioner Coy Vance concluded that “[p]laintiff was on a mission for his employer and had not completed said mission by showering after embalming the body.” In an opinion by the Court of Appeals, a majority of the panel adopted the reasoning of the Deputy Commissioner who made the initial findings, conclusions, and award, and affirmed the Full Commission.

REVERSED AND REMANDED.

MARTIN, J., took no part in the consideration or decision of this case.

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SANDBERG v. J.C. PENNEY COMPANY INC.

243 Ore. App. 342, 260 P.3d 495 (2011)

Opinion

DUNCAN, J.

As found by the board, the facts are as follows:

“The employer has a studio where claimant (and other custom decorators) worked one day per week. On other days, she was ‘out on appointments’ with clients, or working from home. She spent the majority of her working time traveling to and from her appointments and meeting with customers in their homes to sell the decorating products.

“Because she needed to have samples to show potential customers, she kept all of the current fabric samples, books and pricing guides in her van. She was required to have all current fabrics on hand and had previously been reprimanded for not having all of the current sale samples in her van when meeting with customers. In short, she was required to have an ‘office * * * in [her] car.’

“On the Saturday before the date of injury, a sale collection had ended, with a new collection beginning the next day. Because of the fabric sale change, claimant needed to remove the ‘old’ fabrics from her van and replace them with fabrics for the new sale that were being stored in her garage. Claimant walked out her back door toward the garage to change the fabrics. When her foot came down, she ‘felt something move.’ Noticing that her dog was underfoot, she shifted to her other foot, lost her balance and fell. As a result of the fall, claimant sustained a right distal radius fracture.”

(Record citations omitted; brackets and omission in original.) Although not recounted above, the record also contains undisputed evidence that claimant regularly performed some work tasks, such as preparing bids and other paperwork, in her home. Claimant sought compensation for her injury, which employer denied. An administrative law judge (ALJ) affirmed the denial, as did the board.

As mentioned, in order for an injury to be compensable under Oregon’s Workers’ Compensation Law, the injury must “aris[e] out of” and occur “in the course of” employment. ORS 656.005(7)(a). The two prongs test different aspects of the connection between the injury and the employment. The requirement that the injury arise out of employment “tests the causal connection between [a] claimant’s injury and a risk connected with [his or] her employment.” Fred Meyer, Inc., 325 Or. at 601, 943 P.2d 197. “[A] worker’s injury is deemed to ‘arise out of’ employment if the risk of the injury results from the nature of his or her work or when it originates from some risk to which the work environment exposes the worker.” Id.

The work connection test may be satisfied if the factors supporting one prong are strong, but those supporting the other are weak. Redman Industries, Inc. v. Lang, 326 Or. 32, 35, 943 P.2d 208 (1997). However, as mentioned, both prongs of the work connection test must be satisfied to some degree. Fred Meyer, Inc., 325 Or. at 596, 943 P.2d 197; Krushwitz, 323 Or. at 531, 919 P.2d 465.

Because the board did not determine whether claimant’s injury occurred in the course of her employment, that issue is not before us. The only issue on review is whether claimant’s injury arose out of her employment. Thus, our focus is on whether claimant established a causal connection between her injury and her employment, that is, whether claimant’s injury resulted from a risk connected to either the nature of her work or her work environment.

We begin our analysis with Halsey, on which the board relied. In Halsey, we held that an injury suffered by a claimant who fell as he walked across his driveway was not compensable because it did not arise out of his employment. The claimant was a firefighter. He was “on duty,” which meant that he was required to respond to all emergency calls. 180 Or.App. at 334, 44 P.3d 610. The employer provided him with two work pagers and a work truck. Before he fell, the claimant was on his way to church. He planned to drive the work truck in case he was called to an emergency. As he walked across his driveway toward the truck while carrying a friend’s child, one of his pagers went off. He reached down and took the pager out. His foot slipped on dirt and gravel, and he fell, injuring his ankle and leg. Id. at 335, 44 P.3d 610.

When asked what caused his fall, the claimant said only that he “ ‘slipped.’ ” Id. He specifically said that responding to the pager did not contribute to his fall.

We began by determining whether the claimant’s injury occurred in the course of his employment. Because the claimant fell while walking to the work truck and checking his pager, we held that the “in the course of” prong was satisfied. But, we emphasized that

Id. at 338, 44 P.3d 610. Therefore, we concluded “[claimant’s] activity at the time [of the injury] is most accurately characterized as significantly personal in nature, with an incidental connection to work.” Id.

We then determined whether the claimant’s injury arose out of his employment. As mentioned, to arise out of employment, an injury must result from a risk connected with the nature of the work or a risk connected with the work environment. Griffin v. SAIF, 210 Or.App. 469, 473, 151 P.3d 165 (2007). We first held that the risk that the claimant would fall on his own driveway was not connected with the nature of his work. “The risk that claimant’s foot would slip on the dirt and gravel in his own driveway was not a risk ‘distinctly associated’ with being a firefighter.” Halsey, 180 Or.App. at 339, 44 P.3d 610 (quoting Phil A. Livesley Co. v. Russ, 296 Or. 25, 29–30, 672 P.2d 337 (1983)). That risk “existed whenever claimant walked from his house across his driveway, for whatever reason he might choose to do so.” Id.

In this case, the board relied heavily on Halsey. Citing Halsey, the board concluded that claimant’s injury did not arise out of her employment because the risk of tripping over her dog was the result of a risk that existed “any time that she stepped outside the door of her home” and that arose from “[her] home environment, which was outside of the employer’s control.”

Halsey is instructive, to a point. As in Halsey, the risk involved in this case is not “distinctly associated” with claimant’s employment. 180 Or.App. at 339, 44 P.3d 610. The risk that claimant might trip over her dog did not arise out of the nature of her work as a custom decorator. It was a risk that existed whenever claimant walked around her property. Thus, under Halsey, the risk did not result from the nature of claimant’s work.

Accordingly, the question reduces to whether the risk resulted from claimant’s work environment. Halsey does not answer that question. The injury in Halsey was an “off-premises” injury. As we emphasized, the injury occurred in the claimant’s home environment, which was under his control, not his employer’s. In this case, claimant’s injury also occurred in her home, and her home was in her control, not her employer’s. But, unlike in Halsey, claimant’s injury is not as easily classified as an “off-premises” injury. That is because claimant’s home environment was also, at times, her work environment.

Therefore, this case is distinguishable from Halsey, because here claimant’s home environment was, at times, her work environment and, as Professor Larson has explained, the risks of the home environment can be the risks of the work environment:

“[O]nce it is established that the home premises are also the work premises * * *, it follows that the hazards of home premises encountered in connection with the performance of the work are also hazards of the employment.

“ * * * That the employee is a telecommuter or other home-based worker should not, in and of itself, make any difference. Was the risk of injury a risk of this employment? So long as the employment subjects the employee to the actual risk of injury, the argument follows that the injury should be compensable.”

Arthur Larson and Lex K. Larson, 1 Larson’s Workers’ Compensation Law § 16.10 [4], 16–37 (2009) (emphasis in original; omitted).

Here, claimant was walking to her garage for the sole purpose of performing a work task. She fell while moving about an area in which she had to move about in order to perform the work task, given the conditions of her employment. Therefore, we conclude that claimant’s injury resulted from a risk of her work environment. As such, it arose out of her employment.

That idea underlies the “traveling employee rule,” which provides that, when an employee is required to travel as a condition of employment, injuries resulting from activities necessitated by the travel can be compensable, even if the worker is not performing a work task at the time of injury. Scardi, 218 Or.App. at 408, 410, 180 P.3d 56. Thus, injuries from risks over which an employer has no control, such as the risk of injury from a hotel fire, can be compensable.

The idea also underlies an exception to the going and coming rule, under which, as mentioned, injuries suffered while commuting to and from work are generally noncompensable. Dehiya v. Spencer, 221 Or.App. 539, 546, 191 P.3d 730 (2008). Under that rule, injuries suffered by workers going to and coming from work are noncompensable on the ground that the workers are not serving their employers while they are commuting. Id. An exception to the rule exists for injuries sustained by workers who are required to drive their own cars to work to use during the work day for the employer’s benefit. Jenkins v. Tandy Corp., 86 Or.App. 133, 137, 738 P.2d 985, rev. den., 304 Or. 279, 744 P.2d 1003 (1987), is illustrative.

In Jenkins, the claimant was hit by a car in the parking lot outside his employer’s store as he walked from the store to his car to go home at the end of his work day. The employer required the claimant to have his own car at work to use for customer calls and deliveries during and after the store’s hours. The board determined that the claimant’s injury was noncompensable because the claimant had left the store to go home and the parking lot was outside of the employer’s control. On review, this court reversed, holding that the going and coming rule did not apply because the claimant’s travel to and from the store in his own car was a condition of his employment. 86 Or.App. at 137, 738 P.2d 985. We explained:

Id. (quoting Smith v. Workmen’s Comp. App. Bd., 69 Cal.2d 814, 825, 73 Cal.Rptr. 253, 447 P.2d 365 (1968)); see also Liberty Northwest Ins. Corp. v. Over, 107 Or.App. 30, 810 P.2d 876 (1991) (holding that the claimant, who had been injured in a car accident while driving his own car from his home to a work site, was entitled to compensation because, as a practical matter, the employer required the claimant to use his car to travel between work sites during the work day). Accordingly, we concluded that, regardless of whether the parking lot was within the employer’s control, the claimant’s injury “arose out of and in the course of his employment.” Jenkins, 86 Or.App. at 137, 738 P.2d 985. Notably, we reached that conclusion even though, had the claimant not been required to have his own car at work for work purposes, he may well have been in the same position—walking to his own car to go home—that he was in when he was injured.

This case is similar. If an employer, for its own advantage, demands that a worker furnish the work premises, the risks of those premises encountered in connection with the performance of work are risks of the work environment, even if they are outside of the employer’s control, and injuries resulting from those risks arise out of the employment. Here, because employer did not provide space for claimant to perform all of her work tasks, she was required—as a condition of her employment and for the benefit of her employer—to work in her home and garage. Thus, those areas constitute claimant’s work environment when she is working, and injuries suffered as a result of the risks of those environments, encountered when claimant is working, arise out of her employment. If claimant tripped over a dog and injured herself while meeting with a customer in the customer’s home, her injury would arise out of her employment. The same is true here because claimant was where she was, doing what she was, because of the requirements of her employment.

Reversed and remanded for reconsideration.

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BUSH v. PARMENTER, FORSYTHE, RUE & DETHMERS 413 Mich. 444, 320 N.W.2d 858 (1982)

Opinion

WILLIAMS, Justice.

This case concerns a claim for workers’ compensation benefits for the death of an attorney who was killed after a seven- to eight-hour deviation from his return trip home from a trust and investment seminar. We are asked to determine whether decedent’s injuries arose out of and in the course of employment where the wage earner, following “a night out on the town”, was shot to death after resuming a course which would have taken him to his house. We hold that decedent’s deviation was so extensive and involved such added risks totally unrelated to his employment that decedent had broken the employment nexus and thus had ended the business nature of his trip prior to his death. Therefore, we reverse the Court of Appeals, 79 Mich.App. 49, 261 N.W.2d 51, decision and vacate the compensation award.

I. FACTS

Bush arrived at the Nitehawk sometime before 8:30 p. m. and remained there until the nightclub closed at 2:30 a. m. Wednesday, October 6th. During the six hours at the Nitehawk, Bush had several beers and mixed drinks, danced with two or three women and talked with several patrons [see Appellant’s Brief, pp 3-4 and Tr pages cited therein].

Bush also appeared to be forgetful. Upon returning to his seat after the altercation with the customer, he asked the cook for his hamburger and coffee. Despite the fact that Bush had eaten the meal only a few minutes earlier, the cook decided that it would be futile to argue with him, so she cooked a second meal without charge [8/9/73, Tr 88].

Since it was apparent to the employees at Alice’s that Bush was in no condition to drive, they tried to get him to take a cab home. At one point they even offered to pay his fare, but he refused [8/9/73, Tr 194]. Bush left the restaurant a little after 3 a. m. Wednesday, October 6, 1971.

The Workers’ Compensation Appeal Board (WCAB) unanimously reversed in June 1976, holding that the deviation was of such a personal nature and for such an extended period that it terminated the business nature of the return trip home. 1976 WCABO 2962. [Appellants’ App, 110a-112a] The Court of Appeals in turn unanimously reversed the WCAB, finding that “[t]he appeal board’s somewhat emotional rationale fails to withstand critical analysis”. Bush v. Parmenter, Forsythe, Rude & Dethmers, 79 Mich.App. 49, 52, 261 N.W.2d 51 (1977). The court held that “neither the passage of time nor the nature of the deviation proximately contributed to decedent’s fatal wound”, id., 55, 261 N.W.2d 51, and remanded the case for a factual determination of whether Bush was returning home when he was shot. We denied leave to appeal. 404 Mich. 827 (1979).

II. ISSUE

This case turns on whether the deviation of decedent Bush was so extensive, in that it lasted for such a long time and incurred substantial increases in danger to decedent unrelated to his employment, that the business character and purpose of the trip dissolved prior to the injury. We hold that the deviation was so extensive that the business character of the return trip had dissolved so that when decedent returned to his homeward course he was no longer in the course of employment.

III. RETURN TRIP FROM SEMINAR WAS WITHIN COURSE OF EMPLOYMENT PRIOR TO DEVIATION

“When an employee, having identifiable time and space limits on his employment, makes an off-premises journey which would normally not be covered under the usual going and coming rule, the journey may be brought within the course of employment by the fact that the trouble and time of making the journey, or the special inconvenience, hazard, or urgency of making it in the particular circumstances, is itself sufficiently substantial to be viewed as an integral part of the service itself.” 1 Larson, Workmen’s Compensation Law, § 16.10, p 4-123 (footnotes omitted).

IV. THE EMPLOYMENT NEXUS MAY BE BROKEN

“[U]nder the circumstances of this case the nature of the deviation has no relevant connection with decedent’s untimely demise. Whether decedent spent eight hours, from the end of the seminar until resuming his trip home, in pursuit of ‘Bacchanalian pleasures’, or instead spent those hours engaged in more laudable conduct, such as by improving his mind in the public library or redeeming his soul at a religious institution of his choice, has no relationship to the circumstances or cause of his death.

“Our decision might, of necessity, be different if decedent died as a result of drunk driving, for then his arguably wrongful conduct, becoming drunk in the service of his employer, would be the proximate cause of his death and it is well established that under such circumstances compensation may be denied. Crilly v. Ballou, 353 Mich. 303, 327, 91 N.W.2d 493 (1958). Nor do we find the mere passage of time controlling or even particularly relevant. Except in unusual circumstances not here present, the timing of the trip bears no relationship to its hazards, and it is the general hazards which allow liability for injury to be imposed on the employer in the first place. Stark v. L E Myers Co., 58 Mich.App. 439, 443, 228 N.W.2d 411 (1975), lv. den., 394 Mich. 814.

The Court of Appeals appears to be relying on a strict and rigid rule: “because decedent was engaged in a trip of special benefit to his employer, it is his employer who must bear the risk for one complete round trip. * * * [U]pon resumption of the * * * return trip the employer’s liability recommences.” Id. The length and nature of the deviation is immaterial, the Court of Appeals stated, so long as the employee has returned to the path leading to the original destination. If claimant has ended his deviation and is subsequently injured, that Court would ipso facto hold the employer liable.

This Court rejected such a rigid analysis in Thomas v. Certified Refrigeration, Inc., supra, 392 Mich. 633, fn. 4, 221 N.W.2d 378, where we noted:

“[T]his Court will not follow the path taken by some courts in other jurisdictions which have granted or denied compensation based on rigid rules such as whether the personal mission was completed and the employee was returning to the business route.”

“We do not suggest that every authorized use of a company-owned vehicle or deviation from a business route will fall within this triad of cases. [Burchett v. Delton-Kellogg Schools, 378 Mich. 231, 144 N.W.2d 337 (1966); Howard v. Detroit, 377 Mich. 102, 139 N.W.2d 677 (1966); and Beaudry, supra.] An authorized but totally private excursion such as using the company vehicle for weekend personal errands certainly is not covered because such trips lack a dual purpose required by Burchett or ‘a sufficient nexus between the employment and the injury’ required by Nemeth. If a personal business detour is so great that the deviation dwarfs the business portion of the trip, it no longer can be said that it is ‘a circumstance of [the] employment’ as required by Howard.”

“Any business mission that begins as such from a particular base, such as the employee’s home or office, must contemplate both an outgoing and a returning trip.

“However, the fact that the employee frequently is indeed free to go where he pleases and [d]o what he pleases after the last business chore is completed gives rise to a class of exasperating, complicated and sometimes picturesque fact problems involving employees who, had they gone straight home, would have been entitled to have their homeward journey covered, but who interpolated so many personal diversions between the last business act and the journey home that the ultimate journey home has often been held to have lost its business character somewhere along the line. The case of Mr. Dooley is typical. [Dooley v. Smith’s Transfer Co., 26 N.J.Misc. 129, 57 A.2d 554 (NJ Workmen’s Compensation Bureau, 1948) ] Having the right to travel to and from work at company expense in his own car, he left work at 4:30 p.m., had a few beers, went to the movies, and then was not heard from until he struck a traffic island on his way home at 2 a.m. Although there was no evidence that the accident was due to intoxication, compensation was denied because of the ‘unreasonable interval.’

Thus, merely because Bush was killed after ending his all-night detour does not necessarily mean that he is entitled to benefit. It is possible to break the employment nexus and end the special mission prior to the completion of the “round trip”. We must therefore examine the facts to determine whether the business purpose of the return trip was destroyed by the nature and extent of Bush’s deviation.

V. THE NATURE AND EXTENT OF THE DEVIATION

The question remains whether the employment nexus continued to exist after such a substantial deviation. The WCAB believed that the nexus was broken and that any business purpose originally existing had dissolved:

We agree.

The plaintiff’s decedent’s business detour was so great and unrelated to his business that the deviation dwarfed the business portion of the trip. The deviation was of such nature and length that it extensively increased the likelihood of injury and was clearly unrelated to the purpose of the employment. The business portion of the trip, under the facts of this case, had thereby terminated prior to the tragic occurrence. The ultimate journey home had lost its business character. Consequently, the subsequent travel was no longer “a circumstance of [the] employment” as required by Thomas and Howard. Thus, any nexus between the employment and the injury was dissolved.

The decision of the Court of Appeals is reversed, and the award is vacated. No costs, a public question being involved.

COLEMAN, C.J., and FITZGERALD, RYAN, MOODY, LEVIN and KAVANAGH, JJ., concur.

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CLARK v. U. S. PLYWOOD

605 P.2d 265 (1980)

Opinion

THE FACTS

“The machine consists of two large units, the press and the carriage, each about 20 feet high and 15 feet square. When the units are separated, there is a gap approximately three feet wide between them. Chains on each end of the gap prevent one from entering thegap while the machine is in operation. The chains are connected to a fail-safe device; when either of the chains is unhooked, the machine is inoperable. The press is capable of bonding about 25 sheets of plywood at a time, the sheets lying parallel to the floor. The carriage is mounted on tracks which connect it to the press. The major component of the carriage is the charger. It mechanically feeds the press with the wood to be bonded into sheets and is loaded by the operator and his assistant. It is activated by a switch on the operator’s control panel. When activated, the carriage moves along the tracks to the press, closing the gap. The charger nests with the shelves of the press. The wood is pushed from the charger into the press by a device which sweeps from the back of the charger to the end nested with the press. Part of that feeding device is a beam which sweeps across the top of the charger. It was that beam which crushed the worker.”

Normally the press operator would himself remove a safety chain blocking the three-foot alley between the press and charger, climb the face of the charger, and place the food on a hot ledge on the top of the press. The chain was connected to an electrical switch, and its removal prevented the charger from moving toward the hot press. A sign stating “DANGER, KEEP AWAY” hung from the chain. On this occasion, however, the assistant press operator was eating, and suggested that Clark could climb up the charger as easily as he could. The operator testified that he told Clark to drop the chain and the charger would not move. Clark did so, climbed the face of the charger, and placed his food on the ledge.

APPLICABLE WORKERS’ COMPENSATION STATUTES

The compensation act provides broad coverage, the boundaries of which are determined by the meaning of “arising out of and in the course of employment.” As with most difficult questions, the delineation of the limits of the coverage is anything but knife-edge clear. But as in all difficult cases (this being one such case) the delineation must be made.

MEANING OF “ARISING OUT OF AND WITHIN THE COURSE OF EMPLOYMENT”

COMPENSABILITY OF ON-PREMISES INJURY CLAIMS

Category 1. Injuries sustained while performing one’s appointed task;

“ * * * It is generally held sufficient that the activity is an accepted and normal one, since it thereby becomes a regular incident and condition of the employment * * *.”

In Lamm v. Silver Falls Tbr. Co., 133 Or. 468, 277 P. 91, 286 P. 527, 291 P. 375 (1930), we held that a lumber camp worker returning from a holiday in Silverton was covered by the Workmen’s Compensation law when he sustained injury while riding on the company-owned train back to the logging camp. We quoted from Cudahy Co. v. Parramore, 263 U.S. 418, 423-424, 44 S.Ct. 153, 68 L.Ed. 366, 30 A.L.R. 532 (1923) as follows:

“ ‘Workmen’s compensation legislation rests upon the idea of status, not upon that of implied contract; that is, upon the conception that the injured workman is entitled to compensation for an injury sustained in the service of an industry to whose operations he contributes his work as the owner contributes his capital the one for the sake of the wages and the other for the sake of the profits. The liability is based, not upon any act or omission of the employer, but upon the existence of the relationship which the employee bears to the employment because of and in the course of which he has been injured. * * * No exact formula can be laid down which will automatically solve every case.’ ” 133 Or. at 495-496, 277 P. at 94-95.

Respecting the quotation from Cudahy, we stated (133 Or. at 496-498, 277 P. 91):

“In all of the foregoing instances the injury, like that in our case, was sustained while the employee was doing something which was ancillary to his employment. We quote once more from Larke v. John Hancock Mutual Life Ins. Co., supra (90 Conn. 303, 97 A. 320 (1916)):

“One might be tempted to conclude that in the various cases reviewed the court felt that eating the lunch, sleeping upon the premises, or taking the shower bath were acts indirectly for the benefit of the employer, and that therefore an injury sustained in the course of such acts should be compensated out of the fund. Possibly a better theory of these decisions is that in all of these cases the nature of the work was such that the workmen’s usefulness was increased if he ate his lunch near his workbench, or slept upon the premises at night so that he might start his fires early in the morning; thus since he was exposed to the hazards of the industry while eating or sleeping an award of compensation was held justifiable. Such being the trend of authority it would seem singular to deny compensation to another who in returning to work, and thus doing an act beneficial to his employer, is injured by one of the hazards of the industry.

COMPENSABILITY OF “PERSONAL COMFORT” INJURIES IS DETERMINED BY WHETHER THE ACTIVITY WAS EXPRESSLY OR IMPLIEDLY AUTHORIZED

In the case at bar, claimant asserts:

“(a) The activity of obtaining his lunch was for the benefit of the employer and in furtherance of its interest in having a refreshed employee * * *.

“(b) The activity of employees heating lunches on the press was contemplated by the employer and employee at the time of hiring, because it was common for employees to bring lunches needing to be heated and to heat them wherever they could since no facilities were provided.

“(c) Since the press was often used to heat lunches (on the average of once or twice a week for over a year before this accident and more frequently before then), placing and retrieving them from the press was an ordinary risk incidential (sic) to decedent’s employment.

“(d) Decedent was on a paid lunch period at the time of the accident.

“(e) The activity was on the employer’s premises.

“(f) The activity was acquiesced in by the employer in that it was a common, open and visible practice for employees to heat lunches on the press and not objected to or prohibited at the time of the accident.

“(g) Decedent was not on a personal mission of his own as this term is generally used in this context, but rather was picking up his lunch so he could refresh himself and return to his duty station within the brief (20 minute) period allowed to eat.”

“The conduct from which Clark’s fatal injuries resulted was so unreasonable that it cannot fairly be considered incidental to his employment * * *.” 38 Or.App. at 388, 590 P.2d at 285.

We reject the “reasonableness” test because it is at variance with the purpose of the Workers’ Compensation Law to provide compensation for injuries arising out of and in the course of employment, irrespective of worker fault.

We question Professor Larson’s “implied prohibition” test for these reasons. First, there is too great an element of hindsight involved. After the accident, the employer will certainly say, in many injury cases, “If Clark had asked or had I known, I would have prohibited him from using the press to heat his lunch.”

Second, the difficulty of proving an implied state of mind of the worker which is in turn dependent upon the implied state of mind of the employer creates more than a semantic problem.

Benefits are payable for some on-premises injuries during the lunch hour, even though the ingestion of food may be no less valuable if consumed at home, because (1) the injuries normally result from some kind of on-premises hazard, and (2) the employee is within the time and space limits of the employment as set by the employer, i. e., the employer has expressly or impliedly allowed the conduct in question.

We believe that the compensability of on-premises injuries sustained while engaged in activities for the personal comfort of the employee can best be determined by a test which asks: Was the conduct expressly or impliedly allowed by the employer?

This test squares with the well established requirement that compensation lies for all activities related to the employment if it carries out the employer’s purposes or advances the employer’s interests directly or indirectly. Lamm, supra 133 Or. at 497-498, 277 P. 91 and 1A A. Larson, Supra, s 20. Such a rule is related to the employment environment and the customs and practices of the particular employment and arises from conditions of the employment.

Our statement of the test is in positive terms, rather than in the negative terms of the implied prohibition test suggested by Larson. Although the result in many cases would be the same under either test, we do not intend to necessarily restrict compensability to that which would exist under the implied prohibition test. However, the other prerequisite to recovery must be shown, that is, that the injury arises out of the course of employment.

We conclude that we cannot say, as a matter of law, whether the claimant should or should not recover. We therefore remand to the Court of Appeals for further proceedings consistent with this opinion. We leave to the Court of Appeals the decision whether to decide the case or to remand to the Board. Russell v. SAIF, 281 Or. 353, 574 P.2d 653 (1978).

Reversed and remanded to the Court of Appeals.

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B & B CASH GROCERY STORES v. WORTMAN

431 So. 2d 171 (Fla. Dist. Ct. App. 1983)

Opinion

LARRY G. SMITH, Judge.

The E/C appeal a workers’ compensation award made pursuant to an order of the deputy commissioner determining that claimant’s injury arose out of and was in the course and scope of his employment with the employer. We affirm.

The facts as disclosed by the evidence when viewed in the light most favorable to the prevailing party, as we must view it on appeal, are as follows: Claimant was a member of the employer’s ground maintenance crew, which had the responsibility of cleaning and mowing the grounds of the employer’s stores and the homes of the owners. Claimant and the other members of the crew drove from site to site in vehicles owned by the employer. The work was hot and dirty and facilities for washing off at the job sites were minimal. It was a regular practice for the boys to cool off by going swimming between jobs at public facilities and private homes. These swimming activities were known to the ground maintenance foreman and to the owners to some extent since the crew members sometimes swam in their pools with their permission.

On June 15, 1982, a very hot day, claimant and his two co-workers were travelling between job sites when they decided to stop at the home of one of the co-worker’s parents for the purpose of cooling and washing off in the Alafia River. The home was about a mile and one-half from the direct route between stores. Once there, claimant dove into the water and struck his head on a rock causing a broken neck and quadriplegia.

In addition to the above recited findings by the deputy, the record reveals that claimant and his co-workers were entitled to a fifteen minute break in the morning and afternoon and that the boys had not taken an afternoon break when the accident occurred. Further, there was testimony from at least one of the boys that he worked better after rinsing off between jobs.

We agree with the deputy’s conclusion, in finding the accident compensable, that the June 15, 1982 swimming excursion was an insubstantial deviation which was a direct result of the need to wash off caused by claimant’s work conditions.

In Hill v. Gregg, Gibson & Gregg, Inc., 260 So.2d 193 (Fla.1972), the Supreme Court quoted with approval the following language in Fidelity & Casualty Co. of New York v. Moore, 143 Fla. 103, 196 So. 495, 496 (1940):

We find that claimant’s injury arose out of and in the course of his employment under definition [4]. Evans v. Food Fair Stores, Inc., 313 So.2d 663 (Fla.1975). In Evans, the claimant was injured when he was struck by a fellow employee’s car which he had helped start on the employer’s parking lot. In finding the injury compensable the Supreme Court relied on the fact that claimant’s injury occurred on company time, that it was a common practice for the employer’s employees to help one another start or work on their cars, that claimant had the implied consent of his supervisor to assist his fellow employee during working hours, and that cooperation like this among employees inured to the morale of the working force and was incidentally beneficial to the employer.

Similarly, claimant’s injury in this case occurred while he was on the employer’s payroll, when he was engaged in a common practice of the boys on the ground maintenance crew, doing an activity which he had the implied consent of his supervisor to do, which activity increased the productivity of the employees and was incidentally beneficial to the employer.

The fact that claimant was attending to his personal comfort at the time of the injury does not defeat compensability. Baker v. Orange County Board of County Commissioners, 399 So.2d 400 (Fla. 1st DCA 1981); and Cunningham v. Scotty Home Builders, 9 FCR 1 (1973), cert. den. 307 So.2d 182 (Fla.1974). In Baker, the claimant’s employment required his exposure to cold weather and with his employer’s knowledge, the claimant began wearing battery operated socks. He was injured when the socks caused severe burns on the bottom of his feet, resulting in gangrene and requiring the amputation of a portion of one foot. This court concluded that the contributing employment conditions and circumstances rendered the claimant’s injury one which arose out of his employment. In Cunningham, a case more factually similar to this one, the claimant was injured in an automobile accident while returning to his place of employment after going to a nearby 7-Eleven store to purchase a sandwich and drink. There, as here, the employer had no rules relating to the time and location of refreshment breaks, nor was the claimant either expressly or impliedly prohibited from taking a refreshment break in this manner. Relying on the principle that doubt should always be resolved in favor of the working man, Naranja Rock Company v. Dawal Farms, 74 So.2d 282, 286-287 (Fla.1954), the Commission determined that the employee had reasonably attended to his personal comfort.

Nevertheless, the employer/carrier contend that even if swimming in the river under certain circumstances could be held to be within the course and scope of employment, the foolish act of diving headfirst into the river constituted horseplay of such a substantial character as to amount to an abandonment of the employment. City of Miami v. Granlund, 153 So.2d 830 (Fla.1963). We cannot agree. In Granlund, the employee, in the spirit of frolic took what he thought was an empty gun, pointed it at a fellow employee, then placed the barrel at his head and pulled the trigger, killing himself. We find the facts of Granlund far removed from this case, in that, among other distinctions, there is no connection between the picking up of a deadly weapon, a revolver (much less the act of placing it to his head and pulling the trigger) and the conditions of the employment, nor was such an act incidental to or a natural consequence of the employment. On the other hand, we think the facts here relate more closely to those in Times Publishing Company v. Walters, 382 So.2d 720 (Fla. 1st DCA 1980). In Walters, a fourteen year old newsboy was injured in a foot race which took place during an enforced lull. Examining the extent and seriousness of the deviation, the completeness of the deviation, the extent to which similar activity had either been forbidden or had become an accepted or tolerated practice, and the extent to which such horseplay may have been expected or reasonably foreseeable in the employment, this court concluded that given the totality of the circumstances, the youth had engaged in an insubstantial deviation and his injury was compensable. Similarly, diving into the Alafia River was a momentary deviation without obvious danger, was impliedly tolerated, and was reasonably foreseeable. Compare Miles v. Montreal Baseball Club, 379 So.2d 1325 (Fla. 1st DCA 1980).

Accordingly, the order appealed is AFFIRMED.

ROBERT P. SMITH, C.J., concurs.

THOMPSON, J., dissents with opinion.

THOMPSON, Judge, dissenting.

I dissent. To be compensable, an accident must both arise out of and in the course of one’s employment. For an injury to arise out of and in the course of one’s employment it must be causally connected to the employment, or it must originate in some risk incident to or connected with the employment, or it must flow as a natural consequence from the employment. The injury must occur within the period of the employment, at a place where the employee may reasonably be, and while he is reasonably fulfilling the duties of his employment or is engaged in doing something incidental to his employment.

There is absolutely no causal connection between the claimant diving into the Alafia River and his employment. The claimant’s dive into the river did not originate in any risk incident to or connected with his employment, nor did it flow as a natural consequence from his employment. The injury did not occur within the period of employment. Instead, it occurred while the claimant was deviating from his employment for his own personal comfort and benefit and while he was not fulfilling any employment duty, or performing any act for his employer’s benefit, or engaged in performing anything incidental to his employment.

The act of diving head first into the edge of the river resulted in an injury to the claimant that neither arose out of nor in the course of his employment. I would therefore reverse the order of the deputy commissioner and remand for the entry of a final order denying the claim.

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BEAUCHESNE v. DAVID LONDON & CO.

375 A.2d 920 (R.I. 1977)

This employer’s appeal from a decree of the Workmen’s Compensation Commission awarding benefits to an employee for injuries received at a company-sponsored Christmas party raises an issue of first impression in this jurisdiction. Hereafter we shall refer to the employer as “the company” and the employee by his last name.

The employees were told that they could come to the party or leave for the day, as they chose, and that they would be paid for a full day. All the employees (five in number), as well as the London brothers, attended, although one employee left early without telling anyone. The others received a $10 bonus at the party, and the one who left was given his bonus later. Beauchesne apparently partook of the proverbial Christmas cheer, and sometime later in the afternoon became intoxicated. At about 4 p. m. he fell from a third-floor window and suffered a fractured skull, a fractured cervical spine, and severe damage to the arteries and veins in the area of the left knee. Subsequently, his left leg had to be amputated above the knee.

The trial commissioner’s findings pertinent to this appeal are that Beauchesne was intoxicated on December 24, 1974; that he sustained his injuries “in the employment of the (company), connected therewith and referable thereto”; and that since December 25, 1974 he has been totally incapacitated. In turn these were affirmed by the full commission.

The contrary view is exemplified by McCarty v. Workmen’s Compensation Appeals Bd., 12 Cal.3d 677, 117 Cal.Rptr. 65, 527 P.2d 617 (1974). California Labor Code s 3600(d) contains a provision comparable to s 28-33-2, and the McCarty court reasoned that an employer’s approval of and consent to drinking amount to an “ ‘implied representation that the employer will not hold it against the employee if he drinks, and will not deprive him of his job or his compensation benefits if he does so.’ ” Id. at 685, 117 Cal.Rptr. at 70, 527 P.2d at 622.

The company’s final contention deserves a high mark for its ingenuity, but the same cannot be said for its logic. Beauchesne filed his petition for compensation benefits in early February 1975. The hearing began before the trial commissioner in late April 1975. Thereafter, the commissioner heard evidence on three additional occasions. The presentation of testimony concluded on August 5, 1975. The trial commissioner’s decision was issued approximately 10 months later, and the full commission’s decision was another 9 months in coming.

The company complains that the failure of the commission to abide by the statutory timetables robs its finding as to Beauchesne’s incapacity of any validity. It argues that what may have been true in the spring of 1975 may not necessarily be true 19 months later when the full commission affirmed the trial justice’s findings.

In our opinion, the time lag does not void the award. Sections 28-35-27 and 28-35-28 are designed to expedite justice, not straightjacket commissioners. We addressed a similar question involving the predecessor to s 28-35-27 in Morton C. Tuttle Co. v. Carbone, 84 R.I. 375, 125 A.2d 133 (1956), where we observed that although the statute places a duty on the commissioner to act within certain time constraints, no burden is placed on the parties whereby they would be bound to bear the expense and inconvenience of a hearing de novo because of the commissioner’s failure to perform his duty.

Since the company has apparently conceded that there is evidence to support the finding of total incapacity as of August 5, 1975, when testimony was concluded, and we have determined that the time lag does not void the award, our inquiry ends there.

We wish to point out, however, that the company was not remediless during the 19-month period to which it has alluded. First, the company could have initiated proceedings to compel the trial commissioner’s compliance with s 28-35-27. Morton C. Tuttle Co. v. Carbone, supra, 84 R.I. at 384, 125 A.2d at 138. And, secondly, the company could have invoked the terms of s 28-35-45 and filed a petition for review and modification of the award.

The appeal is denied and dismissed, and the decree appealed from is affirmed.

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PROWS v. INDUSTRIAL COMMISSION OF UTAH

610 P.2d 1362 (Utah 1980)

Opinion

WILKINS, Justice:

This is an appeal from an Order of the Industrial Commission (hereafter “Commission”) denying the application for Workmen’s Compensation benefits by Michael Prows (hereafter “Petitioner”).

The facts of this case are essentially undisputed. Petitioner was employed as a truck driver by Respondent Bergin Brunswig Company (hereafter “Bergin”). His duties included loading medical supplies onto his delivery truck and making deliveries to doctors, hospitals, and clinics.

The boxes containing the medical supplies measured approximately eleven and one-half by twenty-four inches, and each box was secured by elastic bands (also described as “rubber bands”). Each rubber band was approximately twelve inches long by three-eighths inch wide.

Testimony before the administrative law judge established that the rubber bands were used by some of Bergin’s employees for “rubber bands fights”. Petitioner and one of his co-employees testified that the “fights” were an almost daily occurrence. One of Bergin’s supervisors testified that he observed such “fights” perhaps two or three times a month, and that when he observed one he discouraged its continuation.

We are also reminded that our statute (now s 68-3-2) requires that the statutes of this state are to be “liberally construed with a view to effect the objects of the statutes and to promote justice.”

Our statute only exclude(d) those injuries which are “purposely self-inflicted.” As we read the statute, therefore, it is not enough that the employee merely disregards some rule, regulation, or order of the master, since such conduct may constitute nothing more than ordinary negligence on the part of the employee, and mere negligence does not destroy the right to compensation.

With these basic principles in mind, we turn now to an analysis of whether and under what circumstances injuries sustained as a result of “horseplay” on the part of an employee may not be compensated under the act.

(1) Extent and seriousness of the deviation.

In Twin Peaks, supra, the Court observed:

We think the converse of this principle is likewise true; the fact that a major tragedy has occurred should not dictate an award of compensation when that tragedy resulted from a deviation so extensive and serious that the employment can be said to have been abandoned. However, it is our opinion that the deviation involved in the case at bar was short in duration and when disassociated from the serious consequences which resulted, relatively trivial.

(2) Completeness of the deviation.

Petitioner was, at the time he was “attacked” by his co-employees, engaged in the discharge of his duties. Had he not been injured, he would presumably have completed loading the truck and carried on with his deliveries. The horseplay he engaged in was clearly “commingled with the performance of duty” and hence did not constitute an “abandonment of duty.” Larson points out:

. . . the particular act of horseplay is entitled to be judged according to the same standards of exten(t) and duration of deviation that are accepted in other fi(e)lds, such as resting, seeking personal comfort, or indulging in incidental personal errands. If an employee momentarily walks over to a co-employee to engage in a friendly word or two, this would nowadays be called an insubstantial deviation. If he accompanies this friendly word with a playful jab in the ribs, surely it cannot be said that an entirely new set of principles has come into play. The incident remains a simple human diversion subject to the same tests of extent of departure from the employment as if the playful gesture had been omitted.

(3) Extent to which horseplay has become a part of the employment.

The evidence adduced at the hearing before the administrative law judge was conflicting on the frequency of “rubber band fights,” but clearly such “fights” had become a part of the employment, whether the “fights” occurred “daily” or “two or three times a month.”

As Larson points out:

We do not consider the fact that apparently no employee of Bergin had ever attempted before to flip a piece of wood with a rubber band as indicating that such a practice could not be considered a part of the employment. The elements of the practice, which must be conceded to have been part of the employment, were not significantly enlarged or so modified so as to no longer constitute a part of the employment.

(4) Extent to which nature of employment may be expected to include some such horseplay.

By adopting the approach suggested by Larson, this Court does not intend the adoption of a test which by mechanical application will in cases involving horseplay dictate a “correct result”. Indeed this approach is not susceptible of mechanical application but rather is intended as a method of analysis to assist the Industrial Commission in consideration of future cases coming before it involving horseplay. It is this Court’s view that when the underlying policy of the compensation act is effectuated in the light of the analysis suggested herein, a rational result can be expected.

MAUGHAN and STEWART, JJ., concur.

HALL, Justice (dissenting):

I respectfully dissent.

The approach suggested by Professor Larson may well assist in determining whether the accident arises out of or in the course of one’s employment. However, even if this four-step analysis is applied, it is the fact-finder (not this Court) which must evaluate and weigh each element individually and collectively. This includes the element the majority treats as a law matter, that of substantial deviation from petitioner’s course of employment.

In the instant case, the petition admitted that at the time of the accident he was not performing an assigned duty. He also admitted that his injury resulted from his own act and that he was the “aggressor” in flipping the piece of wood, i. e., that his flipping of the wood was not a reaction of having been hit with an elastic band but was rather an independent, playful gesture. Testimony indicated that the employees had been warned about flipping elastic bands at each other and that apparently no employee of the company had ever before attempted to flip a projectile with an elastic band while on the job. Based on the evidence presented, the administrative law judge found as follows:

The horseplay was not related in any way to the performance of the applicant’s job duties but rather represents a complete abandonment of the employee’s duties. At the time of the accident neither the applicant nor any of the other employees involved in the horseplay were carrying out their assigned tasks.

The applicant has failed to prove that his accident arose out of or was in the scope of his employment.

I would affirm.

CROCKETT, C. J., concurs in the dissent of HALL, J.

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HOWELL v. KASH & KARRY

214 S.E.2d 821 (1975)

Opinion

BUSSEY, Judge:

This is a workmen’s compensation case wherein the employer and carrier appeal from an order of the circuit court affirming an award of compensation by the Industrial Commission. The facts of the case, as clearly established by the evidence, and/or readily inferable therefrom, are as follows. The employer, Kash and Karry, operates a very large supermarket at the intersection of Buncombe Road and Mulberry Street in Greenville, South Carolina. It maintains a parking lot for its customers across Buncombe Road and another across Mulberry Street from the actual store.

While traffic upon the sidewalks, immediately adjacent to Kash and Karry, is not restricted solely to its customers, pedestrian traffic is primarily composed of customers of Kash and Karry going to the store and back to the parking lots with grocery carts, the carts of Kash and Karry being frequently parked on the sidewalks themselves.

The claimant, Howell, was a regular employee of Kash and Karry as a checking clerk and stockboy. On the night of December 30, 1971, at about 8:00 p.m., he was sent to the parking lot across Mulberry Street to retrieve a number of gliders or carts. As he was returning to the store Mrs. Clara Belk and her sister were on the Mulberry Street sidewalk approaching the entrance to Kash and Karry, which was immediately around the corner from them on Bumcombe Road. Two small boys snatched the purse of Mrs. Belk and Howell gave chase in an effort to overtake the boys and retrieve Mrs. Belk’s purse. In doing so he ran into a low fence, fell and broke his arm.

Upon the foregoing facts the Commission below as well as the circuit court found, contrary to the contention of the employer-carrier, that the claimant’s injury arose out of, and in the course of his employment. We are of the view that the Commission and the circuit court reached the right conclusion and that there is no merit in this appeal. Somewhat similar cases are cited by both appellants and respondent, but no case precisely in point factually is cited by either. The better reasoned decisions clearly support the position of the claimant.

Larson’s Workmen’s Compensation, section 27.00 states the generally recognized rule as follows:

‘An act outside an employee’s regular duties which is undertaken in good faith to advance the employer’s interest, whether or not the employee’s own assigned work is thereby furthered, is within the course of employment.’

The time, place and scope of the claimant’s actual duties brought him immediately in contact with a customer of his employer who was in sore distress. To assist a customer in any kind of distress is a natural incident of any employee’s employment. Would not any reasonable employer expect the nearest employee to go to the rescue of a customer even though rendering assistance was not a part of the regular assigned duty of the employee? Would not every employer want his customers to feel that the employer and his employees would make every reasonable effort to protect them and their purses from juvenile purse snatchers operating in the immediate vicinity of the employer’s premises? The only common sense answer to these questions is yes. In view of the current prevalence of purse snatching by juvenile delinquents, there is obvious and substantial benefit flowing to a merchant from knowledge on the part of his customers that the merchant and his employees will make every reasonable effort to protect the customers and their purses from such juvenile delinquents. We have no real difficulty in concluding that the claimant’s injury in the instant case arose out of, and in the course of his employment and the judgment of the court below is accordingly,

Affirmed.

MOSS, C.J., and LEWIS, LITTLEJOHN and NESS, JJ., concur.

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BOGGAN v. ABBY FINISHING COMPANY

11 A.D.2d 591, 200 N.Y.S.2d 488 (1960)

Opinion

MEMORANDUM DECISION.

Decision unanimously affirmed, without costs.

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O’LEARY v. BROWN-PACIFIC-MAXON

95 L. Ed. 2d 483 (1951)

Opinion

Mr. Justice FRANKFURTER delivered the opinion of the Court.

In this case we are called upon to review an award of compensation under the Longshoremen’s and Harbor Workers’ Compensation Act. Act of March 4, 1927, 44 Stat. 1424, as amended, 33 U.S.C. s 901 et seq., 33 U.S.C.A. s 901 et seq. The award was made on a claim arising from the accidental death of an employee of Brown-Pacific-Maxon, Inc., a government contractor operating on the island of Guam. Brown-Pacific maintained for its employees a recreation center near the shoreline, along which ran a channel so dangerous for swimmers that its use was forbidden and signs to that effect erected. John Valak, the employee, spent the afternoon at the center, and was waiting for his employer’s bus to take him from the area when he saw or heard two men, standing on the reefs beyond the channel, signaling for help. Followed by nearly twenty others, he plunged in to effect a rescue. In attempting to swim the channel to reach the two men he was drowned.

Both sides conceded that the scope of judicial review of such findings of fact is governed by the Administrative Procedure Act. Act of June 11, 1946, 60 Stat. 237, 5 U.S.C. s 1001 et seq., 5 U.S.C.A. s 1001 et seq. The standard, therefore, is that discussed in Universal Camera Corp. v. National Labor Relations Board, 340 U.S. 474, 71 S.Ct. 456. It is sufficiently described by saying that the findings are to be accepted unless they are unsupported by substantial evidence on the record considered as a whole. The District Court recognized this standard.

When this Court determines that a Court of Appeals has applied an incorrect principle of law, wise judicial administration normally counsels remand of the cause to the Court of Appeals with instructions to reconsider the record. Compare Universal Camera Corp. v. National Labor Relations Board, supra. In this instance, however, we have a slim record and the relevant standard is not difficult to apply; and we think the litigation had better terminate now. Accordingly we have ourselves examined the record to assess the sufficiency of the evidence.

Reversed.

Liability accrues in the instant case only if the death arose out of and in the course of the employment. This is a statutory provision common to all Workmen’s Compensation Acts. There must be more than death and the relationship of employee and employer. There must be some connection between the death and the employment. Not in any common-law sense of causal connection but in the common-sense, everyday, realistic view. The Deputy Commissioner knew that, so he found as a fact that ‘at the time of his drowning and death the deceased was using the recreational facilities sponsored and made available by the employer for the use of its employees and such participation by the deceased was an incident of his employment * * *.’ This finding is false and has no scintilla of evidence or inference to support it.

I am unable to understand how this Court can say this is a fact based upon evidence. It is undisputed upon this record that the deceased, at the time he met his death, was outside the recreational area in the performance of a voluntary act of attempted rescue of someone unknown to the record. There can be no inference of liability here unless liability follows from the mere relationship of employer and employee. The attempt to rescue was an isolated, voluntary act of bravery of the deceased in no manner arising out of or in the course of his employment. The only relation his employment had with the attempted rescue and the following death was that his employment put him on the Island of Guam.

I would affirm the judgment of the Court of Appeals.

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ROCKHAULERS, INC. v. DAVIS

554 So. 2d 654 (Fla. Ct. App. 1989)

Opinion

JOANOS, Judge.

Rockhaulers, Inc. and Executive Risk Consultants, Inc. (employer/carrier) appeal a workers’ compensation order finding compensability. The issues presented are: (1) whether the order and the record contain sufficient ultimate facts to support a finding that the subject accident arose out of the claimant’s employment; and (2) whether the employer/carrier should receive a set-off for moneys received by claimant’s dependents from a third-party tortfeasor. We affirm but amend the order.

The deceased claimant owned and operated a truck under contract to Rockhaulers, Inc. Under the terms of his contract, claimant was paid a percentage of Rockhaulers’ billing for hauling loads of limestone. As a lease operator, claimant called Rockhaulers’ dispatch office and received instructions concerning the time and place of the load pick-up, and the load destination. The route traveled by claimant to the load pick-up point and to the drop-off points was not controlled by Rockhaulers. The subject accident occurred at 6:00 a.m. on September 19, 1988, as claimant was traveling on Highway 235 from Alachua County to Jacksonville. Claimant was the first person to arrive at the scene of a head-on collision between a truck and an automobile. He left his truck on the edge of the northbound lane with the emergency lights flashing. Claimant first determined that the driver of the truck was uninjured, and then, as he walked to aid the persons in the automobile, he was struck and killed by another motor vehicle.

The judge of compensation claims found that the deceased employee died from an injury arising out of and in the course of his employment, in that his death occurred within the time period of his employment, at a place where his employer expected him to be, while performing actions incidental to his employment as a truck driver. The employer/carrier contest the compensability determination, contending that claimant’s activities were not beneficial to the employer, the employee’s injury was not a reasonably foreseeable consequence of fulfilling the duties of his employment, and that the acts of a good samaritan are not compensable in Florida.

The general rule with respect to traveling employees is that an employee whose work takes him away from the employer’s premises is within the course of employment at all times during the trip, except for any “distinct departure for a nonessential personal errand.” Gray v. Eastern Airlines, 475 So.2d at 1290; Leonard v. Dennis, 465 So.2d at 540; N & L Auto Parts v. Doman, 11 So.2d 270, 271 (Fla. 1st DCA 1959), cert. discharged, 117 So.2d 410 (Fla.1960). In Leonard v. Dennis, the court noted that “[t]he ‘neutral’ risk of an automobile accident is always causally related to employment if it involves an employee whose duties increase his exposure to such a hazard.” 465 So.2d at 541.

Somewhat analogous to the traveling employee theory are the theories of compensability pertaining to emergency situations. Professor Larson states that “[i]njury incurred in the rescue of a stranger is compensable if the conditions of employment place claimant in a position which requires him by ordinary standards of humanity to undertake the rescue.” 1A Larson, Workmen’s Compensation Law § 28.00 (1978). However, Professor Larson emphasizes that there must be a true emergency, as distinguished from a mere benefit to an employer through the act of providing assistance to one in trouble. 1A Larson, at § 28.13. This “true emergency” requirement lies at the heart of the positional risk doctrine. Under this theory, an employee’s injury is compensable if it was incurred in the rescue of a complete stranger, provided the employment brought the employee to the place where he observed the situation calling for a rescue attempt. See O’Leary v. Brown-Pacific-Maxon, Inc., 340 U.S. 504, 71 S.Ct. 470, 95 L.Ed. 483 (1951); Murphy v. Peninsular Life Insurance Co., 299 So.2d 3, 4 (Fla.1974); 1A Larson, § 28.23.

In Murphy, the court found the positional risk doctrine inapplicable. The claimant in Murphy was a sales manager trainer of an insurance company, who was injured while accompanying an agent on his rounds in claimant’s private car. On the way to the claimant’s home, they encountered a truck facing an inclined portion of the road. The truck driver, whose brakes were failing, called for help. He asked claimant to place some blocks under the tires. The claimant climbed atop the truck to throw down the blocks to be placed under the wheels of the truck. The truck’s brakes failed, and the truck rolled back striking a utility pole. The claimant injured his leg when he jumped from the truck to avoid being struck by the falling pole. The court found the claimant’s injury was not a reasonably foreseeable consequence of fulfilling the duties of his employment.

In addition, the facts of the case before us appear to fit equally well under the traveling employee theory. Not only did claimant’s employment take him away from the employer’s premises, but his duties as an over the road truck driver increased his exposure to the risk of traffic related injury. Since the record reflects that claimant’s conduct in attempting to aid accident victims was reasonably foreseeable, as well as incidental to his employment as a truck driver, we find no error in the judge’s finding of compensability.

The record in this case reflects that the deceased employee’s wife obtained a net recovery of $10,000 from the driver of the truck that hit claimant as he was attempting to aid the other accident victims. However, there is nothing in the record to indicate the date of settlement with the third party tortfeasor, and whether such settlement occurred before or after the claim for workers’ compensation death benefits was filed. In addition, there is nothing in the record to indicate that the employer or insurance carrier gave written notice of its rights of subrogation to the third party tortfeasor. See § 440.39(3)(b), Fla.Stat. (1987).

Both parties agree that the carrier is entitled to a set-off by virtue of the settlement obtained from the third party tortfeasor. The only disagreement is whether the set-off should be in the net recovery amount of $10,000. The carrier’s claim to this amount is based on the stipulation of claimant’s counsel that Mrs. Davis obtained a net recovery of $10,000. We conclude that a stipulation as to the net amount of a recovery is not tantamount to a stipulation that the carrier is entitled to set off that entire net amount against its obligation for payment of death benefits.

In summary, we affirm the judge’s finding that the accident occurred while claimant was performing actions incidental to his employment, and affirm the amended order in this regard. However, we find the compensation order should be and is hereby amended to reflect that the carrier is entitled to a set off, to be determined by the trial court in accordance with the provisions of section 440.39(3)(a).

Accordingly, we affirm the order as amended.

WENTWORTH and THOMPSON, JJ., concur.

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MERCY LOGGING, LLC v. ODOM

104 so. 3d 908 (Ala. Civ. App. 2012)

Opinion

PITTMAN, Judge.

In December 2009, Johnnie L. Odom filed a complaint seeking benefits under the Alabama Workers’ Compensation Act, § 25–5–1 et seq., Ala.Code 1975 (“the Act”), on account of injuries he suffered from rattlesnake bites on his hands, which injuries, he alleged, arose out of and in the course of his employment with Mercy Logging, LLC (“Mercy”), and rendered him permanently and totally disabled. Odom further alleged that Mercy had paid him no compensation benefits and none of his medical expenses, which expenses totaled over $300,000. Mercy answered the complaint and denied that Odom’s injuries were compensable under the Act.

Mercy appeals, arguing (1) that the trial court erred in concluding that Odom’s injuries arose out of and in the course of his employment and (2) that the additional attorney’s fee awarded to Odom’s counsel was not authorized by the Act or by the common-fund theory.

Factual Background

At the time of the trial of this case in May 2011, Odom was a 46–year–old high-school graduate who had been working in the logging business for more than 20 years. He began working for Mercy’s predecessor, Perritt Logging, in February 2009. On the date of his injury, Odom was employed as a log-truck driver for Mercy; his duties included trimming, binding, and flagging loads and delivering the loads to timber and paper mills. On the morning of September 24, 2009, Odom and two other employees, Michael Raines and Riley Nelson, who were part of a logging crew under the supervision of crew foreman Aaron Perritt, the son of Mercy’s owner, Winston Perritt, drove their personal vehicles and parked them at a service station in Brewton, where they were met by Aaron Perritt, who was driving the labor truck for Mercy. Perritt transported the logging crew in the labor truck to the job site where Mercy was cutting timber. The site was adjacent to a paved road in Monroe County, 59 miles from Brewton. The crew worked until 5:00 p.m. that day and then, at Perritt’s instruction, returned to the labor truck for the ride back to Brewton, with Perritt driving the truck. Perritt drove north of the job site for a short distance to retrieve one of two “Trucks–Entering–Roadway” signs that had been placed on the road to warn traffic and then turned the vehicle around and drove south to retrieve the other sign. Two or three hundred yards beyond the point at which he had retrieved the second sign, Perritt saw a diamondback rattlesnake on the paved road in the northerly lane of traffic.

When Perritt saw the snake, he swerved the truck towards the snake in an attempt to run over it and kill it. When asked why he had intended to kill the snake, Perritt replied: “It’s just [a logger’s] nature to kill [snakes] because we feel they’re a threat ... in the woods.” Odom agreed that snakes are an occupational hazard to loggers in the woods. Perritt stated that it had not been uncommon for him and his crew to encounter rattlesnakes in the woods, that he had killed 20 to 40 snakes while working, and that his father had kept a gun in his truck to shoot snakes. Perritt added that, several months earlier, when he had been driving a work crew away from a job site in the labor truck, he had stopped the truck so that one of the employees could kill a snake. Perritt stated that he had had a habit of running over snakes whenever he saw them on the road and that he had considered the snake he had seen in the road on September 24, 2009, particularly dangerous because it was in an area that was adjacent to (and its head was pointing in the direction of) the job site where he and his crew would be working the following day.

Perritt drove Odom to the hospital in Brewton and Odom was later airlifted to USA Medical Center in Mobile where he was hospitalized until November 3, 2009. Odom was in a coma for the first two weeks of his hospitalization. He remained in the intensive-care unit for 35 of the 40 days that he was in the hospital. He experienced, among other problems, a “frozen” shoulder and extensive and prolonged swelling of his hands and arms. After his discharge from the hospital, Odom participated in physical therapy at D.W. McMillan Memorial Hospital from January 15, 2010, until March 5, 2010. Before engaging in physical therapy, Odom had experienced no disabling pain in his neck or shoulders. During physical therapy, Odom complained of pain in his neck and upper back, and he experienced a popping in his neck. Odom also complained to his personal physician that physical therapy was causing him pain in his neck and upper back.

The trial court ultimately determined that Odom was permanently and totally disabled as a result of injuries to his hands, arms, shoulder, upper back, and neck. Because Mercy does not challenge on appeal the trial court’s medical-causation or disability determinations, we have not set out the trial court’s findings and conclusions with respect to those issues.

Standard of Review

Discussion

“Upon considering the meaning of the complete expression ‘arising out of and in the course of his employment,’ and of its separate component parts, it should be observed that while an accident arising out of an employment usually occurs in the course of it, such is not invariably true. Likewise, an accident which occurs in the course of an employment does not necessarily arise out of it. The words ‘arising out of’ involve the idea of causal relationship between the employment and the injury, while the term ‘in the course of’ relates more particularly to the time, place and circumstances under which the injury occurred. The phrases are not synonymous; where both are used conjunctively a double condition has been imposed, and both terms must be satisfied in order to bring a case within the act. 58 Am.Jur. 717. Generally, an injury arises out of an employment only when there is a causal connection between the injury and the conditions under which the work is required to be performed.”

Wooten v. Roden, 260 Ala. 606, 610, 71 So.2d 802, 805–06 (1954). We will address the second part of the compensability test first.

A. “In the Course of” Employment

Carraway Methodist Hosp. v. Pitts, 256 Ala. 665, 671, 57 So.2d 96, 101 (1952). The evidence in the present case indicates that Mercy provided its employees with transportation to and from work pursuant to an implied contractual obligation; Perritt testified that Mercy considered the employees’ travel to and from work to be on-the-job time. Although “accidents occurring while a worker is traveling on a public road while going to or coming from work generally fall outside the course of the employment,” McDaniel v. Helmerich & Payne Int’l Drilling Co., 61 So.3d 1091, 1093 (Ala.Civ.App.2010) (citing Turner v. Drummond Co., 349 So.2d 598, 603 (Ala.Civ.App.1977)), there is an exception to the “going and coming rule” when the employer furnishes transportation to and from work pursuant to an implied contractual obligation, see Ammons v. McClendon, 263 Ala. 651, 652, 83 So.2d 239, 240 (1955). Therefore, Odom’s accident occurred within the period of his employment (on the drive back to Brewton after work) and in a place where he might reasonably be (on the road from the job site to Brewton).

Because Odom’s foreman abandoned his plan to run over the snake and kill it and, instead, stopped the labor truck and pulled off the road after two employees expressed a desire to catch the snake, it can be inferred that Mercy impliedly consented to the snake-catching activity. Cf. State Parks & Wildlife Dep’t v. Tidwell, 735 S.W.2d 629, 631–32 (Tex.App.1987). In Tidwell, state game wardens took an intoxicated hunter into custody, and, while transporting him to jail, they saw a large rattlesnake on the highway. The hunter told the wardens, “ ‘[T]urn around, I’ll catch that snake,’ ” whereupon the warden who was driving the car “turned the vehicle around and headed it back in the direction of the snake.” 735 S.W.2d at 630. The Texas appellate court stated:

“There was evidence to the effect that [the warden] turned the car around when [the hunter] made the suggestion that he would catch the snake. [The warden] then proceeded to park the car on the edge of the road within twenty feet of the snake. This created a situation in which it could be inferred that [the warden] in his supervisory capacity ( [the hunter] being his prisoner) was going back for the purpose of allowing [the hunter] to catch the snake.... It could be inferred that [the warden’s] parking of the vehicle at that location not only enabled [the hunter] to catch the snake, but was an encouragement and tacit approval of [the hunter’s] action.”

Id. at 631–32.

The implied-consent rationale is, however, limited by the requirement that, “although the employer may have implicitly authorized an activity, if the employer receives no direct or indirect economic benefit from the activity, it does not become part of the employment.” Moore, Alabama Workers’ Compensation § 11:50 at 421 (citing Foster v. Continental Gin Co., 261 Ala. 366, 74 So.2d 474 (1954)) (holding that an injury sustained by an employee who was making a lamp stand for himself—an activity customarily permitted by the employer—nevertheless did not occur in the course of employment because the employer derived no economic benefit from the employee’s activity).

Moore, Alabama Workers’ Compensation § 11:51 at 423 (footnotes omitted).

Odom’s counsel argued to the trial court and now maintains on appeal that removing the poisonous snake from the roadway (whether by catching it or killing it) on the afternoon of September 24, 2009, furthered the economic objectives of Mercy because snakes are an occupational hazard to loggers in the woods, and, he pointed out, the snake on the roadway was several hundred yards from (and facing in the direction of) the job site where the Mercy loggers would be working the following morning. The suggestion that Odom’s snake-catching activity was tantamount to safeguarding the job site assumes that, unless it was caught and removed from the roadway, the same snake would likely have been present on the job site 12 hours later when the logging crew arrived. We question whether an activity that produces such a speculative and remote benefit to the employer falls within the indirect-benefit rule. Cf. Elliott v. Darby, 382 S.W.2d 70, 76 (Mo.Ct.App.1964) (holding that any good will that may have accrued to the employer, the owner of an automobile dealership, as a result of his employee’s participation in a community boat-dock project aimed at promoting recreation and tourism along the river where the dealership was located was speculative and remote, and stating that the indirect-benefit rule “cannot be applied without limitation. Eventually the indirect benefit to the employer becomes so tenuous as to be imperceptible.”).

Further, to posit that, for purposes of the economic-benefit rule, catching a poisonous snake is no different from killing the snake because either action results in the removal of a potential hazard from the employer’s job site is to turn the economic-benefit rule on its head. Even assuming that Mercy’s job site was potentially benefited as a consequence of Odom’s ridding the area of one dangerous snake, that potential benefit appears to be outweighed by the potential detriment to Mercy that could (and did, in this case) result from losing the services of a valued employee who might have been seriously injured while trying to catch the snake.

In an early Alabama case our supreme court stated:

“[T]he effect of well-considered cases is that an employee does not step aside from his employment, and is without the protection of the statute, when he is doing a reasonably necessary act at the time and place to the end that the work and business of the employer may be properly conducted or preserved, or the safety and health of the human and physical agencies engaged therein be conserved, and the ways, works, machinery, or plant safeguarded. In such a temporary deviation by the employee from the original employment or a temporary departure by him from his usual vocation, in the performance of some work for the employer, he is yet acting within the course of his employment.”

Although we entertain some doubt about the correctness of the trial court’s conclusion that Odom’s snake-catching activity occurred “in the course of” his employment, we will assume, without deciding, that it did so occur and proceed to address whether that activity “arose out of” Odom’s employment.

B. “Arising Out of” Employment

In Young, a traveling salesman who was taking a lunch break under a shade tree on the side of the road was injured when he fell into a ditch on his way to look at some ripe blackberries in a nearby field. This court held that the accident occurred “in the course of” the salesman’s employment, but that it did not “arise out of” the salesman’s employment, because

“[t]he possibility of slipping and falling into a roadside ditch is not a hazard peculiar to traveling salesmen. Clearly the claimant, although primarily carrying on his employer’s business, i.e., he continued on his route after the fall, had departed on his own personal enterprise at the time of the injury.”

541 So.2d at 26–27 (citing Gumbrill v. General Motors Corp., 216 Minn. 351, 13 N.W.2d 16 (1944)).

The trial court’s judgment contains the following findings of fact:

(Emphasis added.)

The foregoing findings focus on the occupational hazard that snakes present to Mercy’s employees when the employees are conducting logging operations in the woods. Odom’s injury, however, did not occur while he was conducting logging operations or while he was in the woods. Odom acknowledged at trial that catching a rattlesnake on a public roadway was not an activity caused by his employment. During questioning by the employer’s counsel, Odom testified:

“Q. Now, if [Nelson or Raines] wanted to catch a snake, why [were] you involved in catching the snake?

“A. Well, we all kind of got caught up in that, I guess....

“Q. Now what’s the purpose of catching of a snake? Why would you want to catch it as opposed to kill it?

“A. Well, that’s a good question, I guess.

“Q. Okay.

“A. Kind of a dumb thing.

“Q. Okay. Did catching a snake have anything to do with getting your job done at Mercy Logging?

“A. No, sir.

“Q. That wasn’t going to put timber on the truck, was it?

“A. No, sir. I wish we would have just kept going.

“Q. Okay. It wasn’t keeping y’all from doing your work, because y’all were already in the truck on the black top. Y’all could have just kept on going.

“A. Yes, sir. We could have, but we stopped.

“Q. We stopped. Anybody force you to get out of the truck?

“A. No, sir....”

Odom further testified:

“Q. Okay. Was it part of [your] job duties to catch that snake?

“A. No, sir.

“Q. Was that snake in any way interfering with your ability to perform your job duties [of] cutting timber and loading up and driving to the paper mill or what have you?

“A. No, sir. I wish we would have just went on and hadn’t stopped.

“Q. Was there any business reason, work reason to catch that snake?

The trial court’s judgment contains the following conclusions of law concerning the compensability of Odom’s injuries:

“20. The Court finds that rattlesnakes were an occupational hazard to Odom and other employees of Mercy while employed by and working for Mercy, and Odom’s employment with Mercy contributed to the hazard of a rattlesnake bite and materially increased Odom’s risk of exposure to a rattlesnake bite.... The Court finds that Odom was bitten by the rattlesnake at a time and at or near a place and while performing an activity for which he was hired by Mercy, that he caught the rattlesnake with the express or implicit authorization and acquiescence of Mercy, and that Mercy and its employees received an economic benefit by Odom’s activity in removing the rattlesnake from or near Mercy’s job site. The Court finds that the personal injuries and disability suffered by Odom arose out of and in the course of his employment with Mercy.”

The foregoing determinations actually address only that portion of the compensability test that is concerned with whether Odom’s accident occurred “in the course of” his employment, not with whether the accident “arose out of” his employment. “It is well settled that an accident may occur in the course of ... employment without arising out of it. In order to be compensable the accident must have the two concurring incidents.” Bell v. Tennessee Coal, Iron, & R.R., 247 Ala. 394, 396, 24 So.2d 443, 444 (1945).

The trial court’s determinations that rattlesnakes are an occupational hazard to loggers and that Odom’s employment with Mercy “materially increased Odom’s risk of exposure to a rattlesnake bite” do not address the material question presented by this case, namely: whether Odom’s occupational risk of being bitten by a snake during logging operations in the woods had any causative relation to the snake bite that Odom actually suffered on September 24, 2009, when he voluntarily left the safety of the vehicle in which he was a passenger and attempted to catch a snake that was lying on the roadway. That question must be answered in the negative. The snake on the roadway posed no risk—occupational or otherwise—to Odom so long as he remained in the vehicle in which he was riding; once he voluntarily exited the vehicle and attempted to catch the snake, the risk that caused Odom’s injury was personal to him and not “sufficiently related to [his] employment to be considered an occupational hazard.” Moore, Alabama Workers’ Compensation § 10:2 at 315 (citing Dallas Mfg. Co. v. Kennemer, 243 Ala. 42, 44, 8 So.2d 519, 520 (1942)) (stating that “[t]he question always is whether [the] employment specially subjected [the injured employee] to a hazard of [the] sort [that caused the injury]”). The hazard that Odom encountered on September 24, 2009, was not peculiar to loggers; it was one that would be shared by any passing motorist who, after having spied a snake on the roadway, alights from his or her vehicle and undertakes to catch the snake. See Union Camp Corp. v. Blackmon 289 Ala. 635, 639, 270 So.2d 108, 111–12 (1972) (“The risk to which the employee was subjected on his trip to obtain a soft drink was a risk shared by anyone riding in an automobile, and it was not a risk arising from his employment by Union Camp. The fact that he was within the hours of his employment, and was subject to recall, is not controlling. Such fact or facts do not change the necessary conclusion that Blackmon’s employment in no wise exposed him to the risk causing his fatal injuries.”); Young v. Mutual Sav. Life Ins. Co., 541 So.2d at 26–27 (“The possibility of slipping and falling into a roadside ditch is not a hazard peculiar to traveling salesmen. Clearly the claimant, although primarily carrying on his employer’s business, i.e., he continued on his route after the fall, had departed on his own personal enterprise at the time of the injury.”).

Because Odom’s accident did not arise out of his employment with Mercy, the trial court erred in determining that his injuries were compensable, in awarding him benefits under the Act, and in awarding his counsel attorney’s fees. The judgment of the Escambia Circuit Court is reversed, and the cause is remanded for entry of a judgment in favor of Mercy.

REVERSED AND REMANDED.

THOMPSON, P.J., and THOMAS, J., concur.

BRYAN and MOORE, JJ., concur in the result, without writings.

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