Grather v. Gables Inn, Ltd.

• Decision Date: 18 February 2000
• Docket Number: No. 98-021.,98-021.
• Citation: 751 A.2d 762
• Court: Vermont Supreme Court
• Parties: Joseph W. GRATHER v. The GABLES INN, LTD.

751 A.2d 762

Joseph W. GRATHER v. The GABLES INN, LTD.

No. 98-021.

Supreme Court of Vermont.

February 18, 2000.

Motion for Reargument Denied March 14, 2000.

Mark L. Stephen, East Montpelier, for Plaintiff-Appellant.

John A. Serafino and Tammy Besaw Denton of Ryan Smith & Carbine, Ltd., Rutland, for Defendant-Appellee.

Present AMESTOY, C.J., and DOOLEY, MORSE, JOHNSON and SKOGLUND, JJ.

DOOLEY, J.

Claimant Joseph Grather appeals from a Vermont Department of Labor and Industry Commissioner's decision denying him workers' compensation benefits for an injury sustained while skiing. The Commissioner has certified two question for our review: (1) whether claimant suffered an injury by accident arising out of and in the course of employment with the Gables Inn while skiing at Stowe on March 17, 1994, and (2) whether the amateur sports exclusion of 21 V.S.A. § 601(14)(B) bars this claim.¹ Because we find that claimant's injury arose in the course of employment and that the amateur sports exclusion does not bar this claim, we reverse.

During the fall of 1993, claimant went to Stowe hoping to find a job for the winter that would enable him to ski. When he inquired at the Gables Inn, he learned that it had just advertised for a position as a "ski bum." The "ski bum" was expected to live at the Gables, prepare and serve breakfast in the mornings, and serve food and drinks at "apres ski" and dinner in the late afternoons. The position also entailed helping out with other chores, such as bringing in wood and shoveling snow. The compensation was $100 per week, room and board, tips, and a restricted ski pass that allowed the "ski bum" to ski Stowe Mountain, but only during the middle of the week. The job was designed to leave time free to ski between late morning and 4:00 P.M. in the afternoon. Claimant applied for the position and was hired within a few days. When he arrived for work, his employer encouraged him to become acquainted with the town and the slopes. Throughout the winter, claimant skied during his time off, using his "ski bum" pass. On Thursday, March 17, 1994, claimant worked the breakfast shift, then went skiing, where he crashed into a tree and incurred severe injuries.

Claimant was disabled for some time, and unable to continue his work at the Gables. He filed a claim for workers' compensation, alleging that his skiing injury arose out of and in the course of his employment because his skiing at Stowe Mountain benefitted his employer. See 21 V.S.A. § 618(a) (personal injury compensable by employer if worker receives a personal injury by accident "arising out of and in the course of employment").

I. Course of Employment

We consider first whether claimant's injury occurred during the course of his employment. In analyzing this question, the Commissioner applied the three-alternative test for injuries incurred during recreational or social activities outlined in 2 A. Larson & L. Larson, Workers' Compensation Law § 22.01 (1997). According to Larson, recreational or social activities are within the course of employment when:

(1) They occur on the premises during a lunch or recreation period as a regular incident of the employment; or (2) The employer, by expressly or impliedly requiring participation, or by making the activity part of the services of an employee, brings the activity within the orbit of the employment; or (3) The employer derives substantial direct benefit from the activity beyond the intangible value of improvement in employee health and morale that is common to all kinds of recreation and social life.

Id. § 22.01. Quickly rejecting the first and second alternatives as inapplicable in this case, the Commissioner focused on the third alternative. The Commissioner found the claim failed there as well, because the Gables received no benefit from providing its employees with a ski pass beyond a general boost in morale. The Commissioner's inquiry was limited to whether the employer received any advertising or business advantage from claimant's skiing with the pass provided by the employer.

We concur with the Commissioner that the first two alternatives of the Larson test are inapplicable. However, we conclude that a careful analysis of the third alternative reveals that the employer did receive a benefit sufficient to bring the claimant's skiing within the course of his employment. The Larson test categorizes cases to show several ways an employer can derive benefit from recreational or social activities to satisfy the third alternative. See id. § 22.05. For example, if an employee engages in social activities to entertain a customer, the employer can benefit from enhanced sales, see id. § 22.05[1]; if an employer sponsors a sports team, the employer can benefit through income from ticket sales, from the advertising value of having the name of the business on the players' uniforms, or from media publicity about the team and its sponsor, see id. § 22.05[2]; and, most importantly for this case, if an employer provides recreational opportunities as an inducement to attract employees, the employer benefits from the labor it is able to attract, see id. § 22.05[5].

Here, the employer benefitted from the recreational opportunities it provided by inducing employees to accept employment. The leading case for this kind of employer benefit is Dorsch v. Industrial Commission, 185 Colo. 219, 523 P.2d 458 (1974), see Larson & Larson, supra, § 22.05[5], a case with facts essentially indistinguishable from those before us. In Dorsch, the employee was a bartender in a ski area. In addition to an hourly wage, he received free meals and a ski pass. He was injured while skiing with the pass. The court held that he was acting within the course of his employment when he was injured and extended workers' compensation benefits to him. Dorsch, 523 P.2d at 460.

In reaching this conclusion, the court provided a list of factors which, it held, should govern whether the employee acted in the course of his employment:

(1) the extent to which the employer derives substantial benefit from the policy —beyond the intangible value of improvement of employee morale; (2) the extent to which the recreational activity represents compensation for employment; (3) the extent to which the obligations of employment create the special danger which precipitates the injury; (4) whether the use of the recreational activity was an inducement for employment; (5) whether the use of the recreational facility was originally contemplated by the parties at the time of employment.

Id. The court found (1) the ski pass was part of the employee's compensation, (2) the use of the ski pass was contemplated by the parties from the beginning of employment, (3) the activity was an inducement for employment, and (4) the employer benefitted from offering a ski pass as part of the compensation it paid to its employees by being able to attract employees to odd-hour and remote-area employment. Id. It concluded that the existence of these four elements brought the activity within the course of employment. Id.

As in Dorsch, the ski pass here was part of the employee's compensation, and the use of the ski pass was contemplated by the parties from the beginning of employment. The ski pass was an inducement for employment in the "ski bum" position.² The Commissioner found that claimant hoped to get a job that would enable him to ski, and claimant testified that he accepted the position because the hours, location, and provision of a ski pass gave him the time and opportunity to ski. The employer testified that the ski pass "is an inducement to employment for some people," and that it "[c]learly . . . appealed to [claimant] as one potential employee." As in Dorsch, the fact that the ski pass was an inducement for employment means that the ski pass benefitted the employer beyond the intangible benefit of improving employee morale. Indeed, the real importance of the Dorsch analysis to this case is that the same facts that support a finding that the ski pass was an inducement also support a finding that the employer gained a benefit from the recreational activity.

Employer argues that Dorsch is distinguishable because the claimant in that case was injured on the premises of his employer, which owned and operated the ski area. Although employer identifies a factual distinction from Dorsch, the fact identified is not relied upon by the Dorsch court, nor is it part of the Larson test. See 2 Larson & Larson, supra, § 22.01. Indeed, the fact that an injury occurred on an employer's property may bring a case within Larson's first alternative test, without the special employer benefit that is present here and emphasized in Dorsch. See id. We conclude that employer has raised a factual difference which is irrelevant to our analysis and our conclusion that claimant was acting in the course of his employment when he was injured.

Employer also emphasizes that the third Dorsch factor—"the extent to which the obligations of employment create the special danger which precipitates the injury," Dorsch, 523 P.2d at 460—is absent here. On this basis, it distinguishes two other cases relied upon by claimant, Reinert v. Industrial Accident Commission, 46 Cal.2d 349, 294 P.2d 713 (1956), and Rausch v. Workmen's Compensation Appeals Bd., 274 Cal.App.2d 357, 79 Cal.Rptr. 148 (1969). In both cases, the claimant was a camp counselor whose duties included horseback riding. Each claimant was injured in a horseback riding accident while off-duty and off-premises. In each case, the court found relevant that the employer had already assumed the risk of injuries to its employees from horseback riding by including that activity in their duties, creating a nexus between the claimant's employment responsibilities and the activity causing the injury. See Reinert, 294 P.2d at 716-17; Rausch, 79 Cal.Rptr. at 154. This nexus is not present here; none of claimant's duties at the inn...