Florida Workers' Compensation Lawyer & Attorney : David A. McCranie : Serving Jacksonville, Miami, Tampa, St Petersburg

You might have seen this recent report about the McDonald's employee in Arkansas who came to the rescue of a customer as she was being assaulted in the dining area of the restaurant.  The assailant shot this Good Samaritan for his efforts, resulting in medical treatment costing over $300,000.  Despite his injuries, he managed to thwart the attack, and the police later arrested the assailant.  He's been hailed as a hero by his employer and by local police.

 

But the workers' compensation insurance carrier - unnamed in the report - is refusing to accept the compensability of the accident under Arkansas law.  They say that because McDonald's did not require him to come to the aid of the customer, his accident was not one "arising out of" or occurring "in the course of" his employment.  If it hasn't already, this one is sure to end up in court.

 

Would this accident be compensable if it occurred in Florida?  Probably.  In D.L. Cullifer & Son, Inc. v. Martinez, 572 So.2d 1360 (Fla. 1990), the Florida Supreme Court held compensable the injuries to two fruit pickers who were injured while coming to the aid of a motorist whose vehicle had become disabled on a nearby highway.  And to underscore its intent, the 1990 Florida Legislature enacted §440.092(3), which says:

(3) DEVIATION FROM EMPLOYMENT.--An employee who is injured while deviating from the course of employment, including leaving the employer's premises, is not eligible for benefits unless such deviation is expressly approved by the employer, or unless such deviation or act is in response to an emergency and designed to save life or property (emphasis added).

 

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In order to be compensable under the Florida Workers' Compensation Law, the employee's accident must have been sustained while he was "in the course of" his employment.  Under what has become known as the "going and coming rule," the employee is not considered to be "in the course of" his employment when he is injured in an accident sustained while going to work or while coming home from work.  But there are exceptions to the "going and coming" rule, one of which is the "special hazard" exception, that is, an accident will be compensable even if it is sustained while "going to" or "coming from" work if it is caused by a "special hazard" on a "normal and customary route" used by the employee as a means of entry to and exit from the workplace.

 

In Kramer v. Palm Beach County, decided on 3/31/2008, the claimant was a bridge tender who habitually parked his car in the morning at a nearby shopping center and walked the remainder of the way to work.  He was injured when he tripped over a pile of debris while walking from his car to the jobsite.  The JCC concluded that the accident was not compensable because of the "going and coming" rule, but the First DCA disagreed.  The Court held that the "special hazard" rule applies if the injury occurs as the result of a "special hazard" encountered on a route that is either the "usual" or "expected"  route.  While the JCC's order demonstrated that Kramer did not use the "expected" route (the employer had provided alternative parking facilities instead of the shopping center parking lot), the order was silent on whether the route he took was the "usual" route.  There was evidence that many of Kramer's fellow employees had continued to park in the shopping center parking lot even after the employer provided the alternative parking facilities.  The Court remanded that case to the JCC for specific findings on whether the route Kramer took was the "usual" route to the jobsite.

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Although we can't tell the facts of the case from the Third DCA's brief opinion in City of Miami v. Gutierrez, decided on 3/12/2008, because of the First DCA cases and the statute cited in the opinion we can surmise that the case involved the estate of an employee suing his employer in tort for injuries sustained while the employee was engaged in some type of "recreational and social activity" connected with his employment.  The Third DCA held that since the employee was not in the course of his employment at the time of his accident, the employer was not entitled to immunity from tort liability. 

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In Wait v. Travelers Ind. Co. of Illinois, decided on 11/16/2007, the Tennessee Supreme Court held that a telecommuter who was assaulted in her home kitchen by her neighbor while preparing lunch for herself was "in the course of" her employment at the time.  The Court likened the claimant's accident to one occurring in a kitchen or break room on the employer's premises. 

 

Nevertheless, the Court held that this particular accident was not compensable under the Tennessee Workers' Compensation Act because it did not "arise out of" the claimant's employment.  "There is nothing to indicate [the claimant] was targeted [for the assault] because of her association with her employer or that she was charged with safeguarding her employer's property," said the Court.

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In this non-workers' compensation case, the Fourth District Court of Appeal in West Palm Beach has held that a police officer on his way to work while driving a police vehicle was not in the course of his employment at the time of his automobile accident.  Therefore, the City of Hollywood, the municipality for which he worked, was not liable for the injuries sustained by the pedestrian whom he struck and injured in the accident.

 

In Garcia v. City of Hollywood, Sergeant Redding was on his way to work at 6:00 a.m. in his police vehicle when he struck and injured Rocio Garcia as she was crossing the road to catch her school bus.  The City permitted Redding to take the police vehicle home every evening after his shift and to drive it in to work the next day.  Rocio's parents brought suit against the City, claiming that Sergeant Redding negligently operated his vehicle and that he was in the course of his employment at the time of the accident - thereby rendering the City liable for Rocio's injuries under the doctrine of "respondeat superior." 

 

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