Garver v. Eastern Airlines, 89-335

• Decision Date: 28 November 1989
• Docket Number: No. 89-335,89-335
• Citation: 14 Fla. L. Weekly 2738,553 So.2d 263
• Parties: 14 Fla. L. Weekly 2738 Tonia GARVER, Appellant, v. EASTERN AIRLINES and Gab Services, Inc., Appellees.
• Court: Florida District Court of Appeals

Page 263

553 So.2d 263

14 Fla. L. Weekly 2738

Tonia GARVER, Appellant, v. EASTERN AIRLINES and Gab Services, Inc., Appellees.

No. 89-335.

District Court of Appeal of Florida First District.

Nov. 28, 1989.

Rehearing Denied Jan. 5, 1990.

Mark L. Zientz, of Williams & Zientz, Miami, for appellant.

Cesar A. Armstrong, of Lanza, O'Connor, Armstrong, Sinclair & Tunstall, P.A., Coral Gables, for appellees.

ERVIN, Judge.

This is an appeal from an order denying workers' compensation benefits, based upon a finding that claimant's injuries did not arise out of and in the course of employment, because at the time of the accident, claimant, a traveling employee, was engaged in a substantial deviation from her employment. We reverse and remand for further proceedings.

Appellant, a flight attendant who lives in Miami, flew a scheduled flight from Miami to Los Angeles, where she was slated to remain until the next morning when she would take the return flight to Miami. The morning flight was cancelled, however, and she was rescheduled to fly from Los Angeles on the midnight flight that same day. Having no work assignments during her extended layover, she arranged to have lunch at a restaurant with a personal friend who lived in the greater Los Angeles area. Following lunch, the two proceeded in the friend's automobile to his home located about twenty miles from the restaurant. After having traveled approximately five miles, they were involved in an automobile accident in which claimant suffered her injuries.

In this appeal the parties have cited a number of cases involving variations of the traveling employee's rule, some approving compensability, others disapproving. The opinions in some of the cases discussed cannot be easily reconciled. It is to be hoped that this opinion will clarify some of the perceived inconsistencies in several of those cases recited.

In Gray v. Eastern Airlines, Inc., 475 So.2d 1288 (Fla. 1st DCA 1985), review denied, 484 So.2d 8 (Fla.1986), a case relied upon principally by the claimant, this court reversed an order denying a traveling employee compensation benefits on the ground that the judge had erred in holding that the specific activity which claimant had engaged in at the time of his injury--playing basketball--was a substantial deviation from the course of his employment. It was our view that the activity contributed to the personal health and comfort of the employee. In so holding, we stated the following rule pertaining to traveling employees:

'Employees whose work entails travel away from the employer's premises are held ... to be within the course of their employment continuously during the trip, except when a distinct [departure] on a personal errand is shown. Thus, injuries arising out of the necessity of sleeping in hotels or eating in restaurants away from home are usually held compensable.'

Id. at 1289 (quoting 1A. Larson, The Law of Workmen's Compensation § 25.00 (1979)).

The employer below, in arguing that the appellant had substantially deviated from her employment at the time she suffered her injuries, places great reliance upon this court's recent opinion in Eastern Airlines v. Rigdon, 543 So.2d 822 (Fla. 1st DCA 1989), which disapproved compensation benefits to a flight attendant who suffered injuries while downhill skiing during a layover. From a superficial reading, the Rigdon and Gray opinions might appear to conflict. We are persuaded, however, that each represents a proper application of the traveling employee's rule, in that the two cases turned upon the reasonableness of the activity engaged in by the claimants at the time of their injuries. Accordingly, we see a material difference between the type of recreation indulged in during the layover by the employee in Gray, playing basketball at a nearby YMCA that he was entitled to use, because he was a hotel guest, and by the employee in Rigdon, downhill skiing at a resort located fifty-eight miles from the employee's motel. We are of the view that reasonable minds would generally agree that downhill skiing is an activity that is far more conducive to the occurrence of serious injury than that of basketball, a fact particularly alluded to by the court in Rigdon. See id. at 823.

There is, nonetheless, language in Rigdon which would otherwise suggest that injuries suffered under circumstances similar to those at bar are not compensable. Specifically, the Rigdon court quoted approvingly from this court's earlier opinion in N. & L. Auto Parts Co. v. Doman, 111 So.2d 270, 272 (Fla. 1st DCA 1959), cert. discharged, 117 So.2d 410 (Fla.1960), in which the Doman court had stated: "[W]hen one is engaged in a purely private mission he is not within the scope of his employment until he returns to the employer's place of business or point of departure." Furthermore, the Doman court commented that if the claimant had been injured during a private mission, either while going to see a movie or returning to his motel, the injury would not be compensable. Id. The above statements were not, however, essential to the decision reached by the court in Doman, in that the claimant's accident was in fact held to have been work-related, because at the time of his injury, the claimant's deviation on a personal errand had come to an end. ¹

A strict application of the above-quoted language from Doman would, of course, require affirmance of the order on review, because at the time of her injuries claimant had neither returned to the employer's place of business nor to the point of departure, but was rather traveling away from her hotel for the purpose of enjoying a social visit with a friend. If the statements in Doman represent the correct rule, the injuries suffered by the flight attendant in Gray during a layover while playing basketball at a YMCA near his motel should have been held noncompensable for the reason that they occurred both away from the work site and off the premises of his motel. Similarly, the injuries sustained by a traveling employee in an automobile accident while en route to a restaurant located approximately two to four miles from the employee's motel should have been noncompensable, yet they were, in fact, held to be covered. See Leonard v. Dennis, 465 So.2d 538 (Fla. 2d DCA), review denied, 476 So.2d 673 (Fla.1985). Of course, the above language from Doman, quoted in Rigdon, was only dicta, therefore, we do not consider that such declarations have any precedential value in regard to our decision at bar. Nevertheless, we are of the view that if these statements were ever the established rule in Florida regarding the compensability of injuries suffered by traveling employees, the rule has since been eroded and is no longer applicable.

In support of its statement that one who engages in a private errand is not within the scope of his employment until he returns to the employer's place of business or point of departure, the Doman court cited Duval Eng'g & Contracting Co. v. Johnson, 154 Fla. 9, 16 So.2d 290 (1944); Bituminous Casualty Corp. v. Richardson 148 Fla. 323, 4 So.2d 378 (1941), and Fidelity & Casualty Co. of N.Y. v. Moore, 143 Fla. 103, 196 So. 495 (1940). Of the three referenced cases, only Duval Eng'g & Contracting Co. v. Johnson involved a traveling employee. In that case, the employee died from injuries suffered in an automobile accident which occurred while the employee was returning to Lake City, the point of departure, from a personal errand in Jacksonville. In disapproving an award of death benefits, the court rejected the rule approved in a number of out-of-state jurisdictions, "that when an employee who is injured after he has finished his private errand and while he is within the process of returning to the place where he is to continue to perform his services as an employee, the injury is held to arise out of and in the course of the employment." Johnson, 154 Fla. at 12, 16 So.2d at 291. The Johnson court instead adhered to the rule previously established in Fidelity & Casualty Co. of N.Y. v. Moore, which the Johnson court apparently construed as requiring an employee's injuries to occur on the premises of the work site or the point of departure before any industrial claim could be deemed compensable. Although the supreme court's earlier opinion in Moore did not define a single test for determining whether an injury arose out of and in the course of employment, but instead recited alternative tests, the court in Bituminous Casualty Corp. v. Richardson later relied upon this case as requiring a showing that the injury must arise out of the employment and occur during the course of employment. Richardson, 148 Fla. at 323-29, 4 So.2d at 378-80.

Subsequently, the Florida Supreme Court, in Strother v. Morrison Cafeteria, 383 So.2d 623 (Fla.1980), recognized the confusion engendered by cases in which courts had applied inconsistent tests to establish the compensability of an accident, and explicitly rejected language in earlier case law requiring that the two elements necessary for establishing the compensability of an accident be separately proven. In Strother, the employer cafeteria argued, relying upon Richardson and Southern Bell Tel. & Tel. Co. v. McCook, 355 So.2d 1166 (Fla.1977), that an injury suffered by its cashier-employee during an assault by unknown assailants who had earlier been seen at the cafeteria by the cashier was noncompensable, because the injury occurred off the premises and hence could not be considered as within the course of employment. In rejecting this argument, the court, while discussing a number of its prior opinions, including Richardson and Moore, observed that although the separateness of the "arising out of" and "in the course of employment" elements was still recognized, proof of one need not be established independently of the other. These are instead considered parts of a single test of work connectedness, where any deficiency in the strength of one...