Lead Opinion
The plaintiff appeals from an order of the Superior Court (Hampsey, J.), entering summary judgment in favor of the defendants, plaintiff’s employer and its workers’ compensation carrier, thus denying the plaintiff’s claim for workers’ compensation benefits, RSA ch. 281-A (Supp. 1990). The sole issue on appeal is whether the trial court erred in ruling that, as a matter of law, the plaintiff’s injuries did not arise out of and in the course of his employment. We find no error and affirm.
At the time of the accident, the plaintiff was employed part-time by defendant Wickson Trucking Company (Wickson) as a mechanic. On November 23, 1985, at approximately 8:00 p.m., the plaintiff punched out of work for the day. He was driving home in a service truck owned by his employer when he encountered two of his coworkers walking along the road. Each had run out of gas while driving his own car home after work.
The plaintiff picked them up and drove to his home, where he left the service truck, picked up а gas can, and took another vehicle, a Honda. He drove his co-workers to a gas station and, on the way
The plaintiff’s claim for workers’ compensation benefits for the injuries he sustained in the accident was denied by the New Hampshire Department of Labor. The plaintiff then appealed to the superior court. The defendants moved for summary judgment, and the plaintiff filed a counter-motion for summary judgment. Following a hearing, the court found that there were no genuine issues of material fact and that the defendants had established an entitlement to judgment as a matter of law. The court’s order states:
“[A]t the time of the accident, the Plaintiff was performing a personal activity, not related to his employment at Wickson Truck, and ... the incidents which occurred were within the оrdinary peril of travel between home and work. Therefore, the Court is unable to find that the cause of the injuries sustained by Cook can properly be considered a hazard of his employment at Wickson Trucking.”
On appeal, the plaintiff argues that he received a “call to employment” when he encountered his stranded co-employees, because his activities in assisting them were integrally related to his employment relationship with Wickson. The defendants, on the other hand, argue that the trial court correctly ruled that the plaintiff’s injuries resulted from the ordinary perils of travel between home and work and, as such, are not covered under workers’ compensation law.
“‘Summary judgment shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits filed, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.’” Lourie v. Keene State College,
We turn now to the plaintiff’s contention that the trial court erred in concluding that his injury was not the result of a hazard created by the plaintiff’s еmployment. The New Hampshire workers’ compensation statute requires that an accidental injury, to be compensable, must “aris[e] out of and in the course of employment.” RSA 281-A:2, XI (Supp. 1990). “This requirement imposes on the claimant an obligation to prove that the injury is related to the
“(1) that the injury arose out of employment by demonstrating that it resulted from a risk created by the emрloyment, Maheux v. Cove-Craft Co.,103 N.H. 71 , 74,164 A.2d 574 , 576 (1960); and (2) that the injury arose in the course of employment by demonstrating that (A) it occurred within the boundaries of time and space created by the terms of employment, Heinz v. Concord Union School Dist.,117 N.H. 214 , 218,371 A.2d 1161 , 1164 (1977); and (B) it occurred in the performance of an activity related to employment, which may include a personal activity if reasonably expected and not forbidden, see Hanchett v. Brezner Tanning Co.,107 N.H. 236 , 238-39,221 A.2d 246 , 247 (1966); or an activity of mutual benefit to employer and employee, see Hanchett v. Brezner Tanning Co., supra at 239,221 A.2d at 248 .”
Murphy v. Town of Atkinson,
The plaintiff argues that merely because the accident occurred after work hours does not mean that his activity was personal and not related to his employment. While this court has questioned the utility of the strict “coming and going” rule, under which an employee having fixed hours and a fixed place of work is compensated only for injuries which occur on the employer’s premises, see Brousseau v. Blackstone Mills,
There are two exceptions to this rule. First, an employee may recover for injuries sustained while travelling to or from his place of employment if he is on a “special duty or errand” for the employer. Heinz, supra at 219,
Furthermore, the dissent broadly construes the special employment errand rule to include circumstances in which “the employee’s impression of what is expected of him in serving the interests of his employer or superior, are in fact sufficient to motivate his undertaking the service in question.” 1A Larson, supra § 27.48, at 5-438-40. The dissenting justices argue that because the plaintiff encountered his supervisor on the road, the plaintiff was compelled to stop and render assistance, knowing “that his supervisor will judge his next day’s performance on the job, and for the employee to fail to offer assistance is certainly not what would be reasonably expected of an employee.” For this reason, the dissent concludes that the plaintiff’s actions should fall within the “special errand or duty” exception. We disagree, because if these analyses were adopted, and the roles of the plaintiff and supervisor were reversed, all other circumstances remaining unchanged, the supervisor would not be entitled to workers’ compensation benefits because he could not argue that he risked work-related repercussions for failing to stop and render assistance to an employee whom he supervised.
The second exception to the “coming and going” rule is likewise unavailable to the plaintiff. The plaintiff cites Maheux v. Cove-Craft and Hanchett v. Brezner in support of his position that activities even of a personal nature may be a natural incident of employment. In both of the cited cases, however, the injured employees were engaged in activities on the employer’s premises, utilizing the employer’s equipment, with the employer’s knowledge. See Maheux v. Cove-Craft,
Further, the plaintiff suggests that aiding his co-workers provided a mutual benefit to both the employer and employees. In N.E. Telephone Co. v. Ames, supra at 664,
The fact that one of the stranded co-employees was the plaintiff’s immediate supervisor is not sufficient to characterize the plain
The dissent relies on the testimony of Mr. Wickson, the company president, to conclude that the plaintiff’s actions were “reasonably expected and not forbidden.” Mr. Wickson purportedly testified, at a labor department hearing, that if one employee were stranded on the road, another would be authorized and expected to give assistance. However, reliance on this purported testimony is misplaced.
The moving party is charged with establishing a record sufficient to decide the questions of law raised on appeal. Sup. Ct. R. 13(3); see also Sup. Ct. R. 16(3)(d) (the moving party’s brief shall set forth “a statement of facts material to the consideration of the questions presented, with appropriate references to the appendix or to the record”). The record before us does not contain a transcript of Mr. Wickson’s testimony at the labor department hearing. See Bussiere v. Cunningham, Warden,
The trial court did not err in ruling that the cause of the injuries sustained by the plaintiff could not properly be considered a hazard of his employment. Accordingly, we affirm the trial court’s order granting the defendants’ motion for summary judgment.
Affirmed.
Dissenting Opinion
dissenting: I disagree with the majority’s characterization of the circumstances surrounding Cook’s accident, as well as its interpretation of the applicable law and its reading of Cook’s argument. Therefore, I respectfully dissent.
I first note that the majority omits three crucial items in its recitation of the facts which were set forth in the plaintiff’s brief and uncontested by the defendants: (1) Cook knew befоre he left work on the night of the accident that his co-worker Stanley’s car was low on gas, and that their mutual supervisor, Bouchard, had decided to follow Stanley to a gas station after work, in case Stanley’s car did not make it to the station; (2) Mr. Wickson himself testified at the department of labor hearing that he would expect that if one employee was stranded by virtue of having run out of gas, another one of his employees would be authorized — and even expected — to help him out; and (3) the trial court’s order, on the cross-motions for summary judgment, stated that when Cook encountered Bouchard and Stanley on foot, both of their cars having run out of gas on the way to the station, the two were walking back to the worksite to get a gas can and the company service truck Cook was driving at the time.
It is important to remember here that it is this court’s duty to cоnstrue liberally the workers’ compensation statute, RSA 281-A:2, XI (Supp. 1990), in order to give the broadest reasonable effect to its remedial purpose, see Whittemore v. Sullivan Cty. Homemaker’s Aid Serv.,
I would find that Cook’s accident did “aris[e] out of” employment, see RSA 281-A:2, XI (Supp. 1990), a criterion “primarily concerned
Professor Larson cites with approval the trend in other States to adopt an “actual risk” test for determining whether an injury arose out of employment. Consistent with this trend, courts “do not care whether this risk was also common to the public, if in fact it was a risk of this emplоyment.” 1 A. Larson, The Law of Workmen's Compensation § 6.40, at 3-6 (1990) (hereinafter “Larson”). He notes that “[o]ne effect [of adopting the ‘actual risk’ test] is to permit recoveries in most street-risk cases . . . .” Id.
Certainly there is a causal connection here between Cook’s accident and his employment with the defendant; if Cook had not been a company employee, the chances are overwhelming that he never would have encountered Bouchard and Stanley on the road leading back to the worksite that evening and stopped to assist them. Moreover, as discussed in greater detail below, a “special travel risk” was imposed on Cook by virtue of his “special dut[y]” to assist his supervisor from his predicament. At the very least, Cook’s accident was an “actual risk” of his employment, because it was in fact a risk which grew out of his employment. Thus, Cook’s injuriеs arose out of employment as contemplated by our workers’ compensation statute.
Turning now to the “in the course of employment” requirement, the majority correctly notes that recovery is permitted for an injury which occurred during performance of a personal activity “reasonably expected and not forbidden.” Murphy v. Town of Atkinson,
In addition to not fully considering the “reasonably expected and not forbidden” rule, the majority gives short shrift to the “special duty or errand” doctrine, see Heinz,
When a worker’s trip is undertaken with both an employment errand and a personal errand in mind, Professor Larson states that “if the employment errand comes first, and the injury occurs before it is completed, the case for compensability is very plain.” 1 Larson § 19.26, at 4-364. Contrary to the majority’s assertions, to be classified as an “employment errand,” the errand need not be one normally associated with the person’s work, as Professor Larson explains:
“When any person in authority directs an employee to run some private errand or do some work outside his normal duties for the private benefit of the employer or superiоr, an injury in the course of that work is compensable. . . . [1A. Larson § 27.47, at 5-424] The question of the actual authority of the person issuing the order is sometimes adverted to in the cases, but should not be decisive----[Id. at § 27.46, at*161 5-437] [Moreover,] the employer’s ‘order’ need not take the form of an outright command, if in the circumstances the employer’s ‘suggestion,’ or even the employee’s impression of what is expected of him in serving the interests of his employer or superior, are in fact sufficient to motivate his undertaking the service in question.” [Id. at § 27.48, at 5-438-40.]
In light of this language, Cook’s abortive attempt to help his supervisor and co-worker falls squarely within the “special errand or duty” rule. Cook was performing a private errand for his supervisor at the time of the accident; as such, the errand qualifies as a compensable employment errand. Again, my resolution of this issue flows from my view of the circumstances surrounding Cook’s decision to render assistance. I think the majority ignores the realities of the workplace in assuming that this decision was unaffected by the supervisor-worker relationship, and belies the testimony of the parties. It strains credulity to argue seriously that Cook could have encountered his supervisor and co-employee, returning on foot to their mutual place of employment, knowing that they had left under the threat that the co-employee’s car would run out of gas, and that he would continue merrily along without offering assistance. Every employee knows that his supervisor will judge his next day’s performance on the job, and for the employee to fail to offer assistance is certainly not what would be reasonably expected of an employee.
I would reverse the decision of the trial court and order payment of compensation benefits.