American Legion Post No. 30 v. Gailey, BK-333

• Decision Date: 03 December 1986
• Docket Number: No. BK-333,BK-333
• Citation: 11 Fla. L. Weekly 2513,498 So.2d 1321
• Parties: 11 Fla. L. Weekly 2513 AMERICAN LEGION POST # 30 and Ina/Aetna, Appellants, v. James GAILEY, Appellee.
• Court: Florida District Court of Appeals

Page 1321

498 So.2d 1321

11 Fla. L. Weekly 2513

AMERICAN LEGION POST # 30 and Ina/Aetna, Appellants, v. James GAILEY, Appellee.

No. BK-333.

District Court of Appeal of Florida First District.

Dec. 3, 1986.

Rehearing Denied Jan. 6, 1987.

Mark E. Hungate of Fowler, White, Gillen, Boggs, Villareal & Banker, P.A., St. Petersburg, for appellants.

James R. Hutchens, Sarasota; William S. Josey of Alpert, Josey, Freeman & Grilli, Tampa, for appellee.

MILLS, Judge.

This is an appeal from a workers' compensation order finding compensability and awarding payment of temporary total disability and medical benefits. We find the deputy commissioner erred as a matter of law in finding that Gailey re-entered the course of employment by intervening to "further the business reputation and interests of his employer," and accordingly reverse.

Gailey was employed by the American Legion Post as a bartender in July of 1984. On 5 January 1985, Gailey worked the "day shift" from 9:30 a.m. to 6:30 p.m. After his shift, Gailey consumed one and one-half beers. At the end of each shift, each bartender at the Legion Post was allowed two complimentary drinks. In addition, Gailey consumed one and one-half drinks of Scotch.

At approximately 8:00 p.m., an argument broke out between customers which escalated to a fist fight outside the Legion Post. Accounts of the fight vary. Apparently, however, Gailey attempted to intervene and calm the patrons down when he was pushed, lost his balance and fell in loose gravel. This resulted in a fracture of Gailey's tibia and an open wound.

On 20 November 1985, a hearing was held on Gailey's claim for compensation at which time he testified the reason he went outside the Legion Post to break up the fight was because he wanted to protect the employer from having to deal with the police, possibly causing the Post to lose its liquor license. There is a conflict of testimony in the record as to how frequently fights occurred at the Legion Post. But it was established, through the testimony of other bartenders for the employer, that a rumor was circulating that the Post's liquor license was in jeopardy. Gailey also candidly admitted that he was prompted to intervene in the altercation due to concern for his friends involved.

On 2 December 1985, a final order was entered finding Gailey's injury to be compensable. In this regard, the deputy commissioner held, among other things, that even though Gailey had gone off duty 2 1/2 hours before the fight, he temporarily re-entered his employment by his intervention in the altercation "to further the business reputation and interests of his employer."

In order to be compensable, an injury must arise out of employment in the sense of causation and be in the course of employment in the sense of continuity of time, space and circumstances. Strother v. Morrison Cafeteria, 383 So.2d 623 (Fla.1980). While we have been unable to locate any Florida cases similar to the one at bar, Professor Larson in his treatise provides some instruction:

On the other hand, it is quite possible for an employee whose employment has ended to remain at a place of employment such as a restaurant, taking on the status of...