Hickey v. Union Pacific R. Co.

• Jurisdiction: Oregon
• Parties: Sandra L. HICKEY, Personal Representative of the Estate of Danny Michael Hickey, deceased, Appellant, v. UNION PACIFIC RAILROAD COMPANY, a corporation, Umatilla County, Oregon, the City of Hermiston, and the Public Utility Commissioner of the State of Oregon, Respondents, and James E. Delp, Jr., dba Frank's Sewer Service, Defendant. CV87-908; CA A51046.
• Citation: 803 P.2d 275,104 Or.App. 724
• Court: Oregon Court of Appeals
• Decision Date: 19 December 1990

Page 275

803 P.2d 275

104 Or.App. 724

Sandra L. HICKEY, Personal Representative of the Estate of Danny Michael Hickey, deceased, Appellant, v. UNION PACIFIC RAILROAD COMPANY, a corporation, Umatilla County, Oregon, the City of Hermiston, and the Public Utility Commissioner of the State of Oregon, Respondents and James E. Delp, Jr., dba Frank's Sewer Service, Defendant.

CV87-908; CA A51046.

Court of Appeals of Oregon.

Argued and Submitted Feb. 12, 1990.

Decided Dec. 19, 1990.

Garry L. Reynolds, Hermiston, argued the cause and filed the briefs for appellant.

Thomas W. Brown, Portland, argued the cause for respondent Union Pacific R. Co. With him on the brief was Cosgrave, Kester, Crowe, Gidley & Lagesen, Portland.

I. Franklin Hunsaker, Portland, argued the cause for respondents Umatilla County and City of Hermiston. With him on the brief were Douglas R. Andres, Lisa E. Lear and Bullivant, Houser, Bailey, Pendergrass & Hoffman, Portland.

Jas. Adams, Asst. Atty. Gen., Salem, argued the cause for respondent Public Utility Com'r of the State of Or. With him on the brief were Dave Frohnmayer, Atty. Gen. and Virginia L. Linder, Sol. Gen., Salem.

Before RICHARDSON, P.J., and NEWMAN and DEITS, JJ.

DEITS, Judge.

Plaintiff, as personal representative of the estate of her husband (decedent), seeks damages for his death against City of Hermiston (City), Umatilla County (County), the Public Utility Commissioner (PUC), Union Pacific Railroad (Railroad) and James Delp. ¹ The trial court dismissed with prejudice the claims against city, county and PUC on the ground that those defendants are immune from liability under ORS 30.265(3)(a), because the death was compensable under the Workers' Compensation Law. Plaintiff's claims against Railroad were tried to a jury, which returned a verdict for Railroad. Plaintiff appeals the dismissal of her claims against the public entities; she also appeals the judgment in favor of Railroad, arguing that the trial court erred in allowing evidence of PUC surveys and data. We affirm.

Decedent was employed as a warehouse foreman for the Church of Jesus Christ of Latter-day Saints. His scheduled work day was from 7:30 a.m. to 5 p.m. There were no scheduled swing, graveyard or weekend shifts at the warehouse. During his 10 months on the job, decedent had occasionally stayed late in order to complete his work. His wife testified that, on a few occasions, he had gone back to work after returning home. However, his supervisor had instructed him to do his work during regular hours whenever possible. While his supervisor was out of town, decedent had the authority to decide when it was necessary to work outside his regular hours. He usually drove across the South First Street railroad crossing on his way to and from work. Two trains regularly passed the crossing each day: one going north between 8 p.m. and 9:30 p.m. and one going south between 11 p.m. and 12:30 a.m.

On August 27, 1986, decedent worked his regular hours. He was supposed to have loaded a truck that had to leave at 4 the next morning. However, the driver arrived late and the truck was not ready to be loaded until 5 or 5:30 p.m. Decedent's supervisor was out of town, and he decided to go to a church meeting that he and his wife had planned on attending and then return to load the truck. He returned to work around 11 p.m. He completed the job and started home on his motorcycle along his usual route. At approximately midnight, his motorcycle collided with the south bound train at the First Street crossing, and he was killed.

Plaintiff argues that the trial court erred in concluding that decedent's death was compensable under the Workers' Compensation Law and that, therefore, defendants City, County and PUC were immune from liability under ORS 30.265(3)(a). ² We conclude that the death was compensable and that, accordingly, defendants City, County and PUC are immune.

A compensable injury or death is one "arising out of and in the course of employment." ORS 656.005(7)(a). As a general rule, injuries sustained by an employee going to or coming from work are not compensable under the Workers' Compensation Law. Hendrickson v. Lewis, 94 Or.App. 5, 8, 764 P.2d 577 (1988). However, there is an exception to the "going and coming" rule if an injury or death occurs while an employee is on a "special errand" for the employer. Philpott v. State Ind. Acc. Com., 234 Or. 37, 41, 379 P.2d 1010 (1963). This exception is explained by Larson:

"When an employee, having identifiable time and space limits on his employment, makes an off-premises journey which would normally not be covered under the usual going and coming rule, the journey may be brought within the course of employment by the fact that the trouble and time of making the journey, or the special inconvenience, hazard, or urgency of making it in the particular circumstances, is itself sufficiently substantial to be viewed as an integral part of the service itself." 1 Larson, Workmen's Compensation Law 4-204, § 16.10 (1985). (Footnotes omitted.)

In Davis v. SAIF, 15 Or.App. 405, 515 P.2d 1333 (1973), we discussed the application of the "special errand" exception. The claimant was injured in an auto accident on her way home after an office meeting that had required her to work 43 minutes past her scheduled shift. We concluded that, generally, staying late or coming early to work does not take a claimant's regular commuting outside the general rule that it is not within the course and scope of employment for purposes of Workers' Compensation coverage. We recognized, however, that, if the change in work schedule made the journey between home and work substantially more inconvenient or hazardous, the special errand rule might apply. We concluded in Davis that the rule was not applicable to the facts of that case:

"Here [the claimant] worked 43 minutes overtime. It was still afternoon and the public buses upon which she normally traveled were running at the regular, daily, half-hour intervals. Nothing in connection with her overtime work or her employment significantly altered the normal risk attendant upon her journey home." 15 Or.App. at 410, 515 P.2d 1333.

Here, decedent did not simply leave work late or go to work early. He made an extra, late night trip to work. In the absence of his supervisor, he was authorized to determine when it was necessary to work outside his normal hours. He made the extra trip because the truck needed to be loaded for its departure the next morning. Because of personal commitments, he could not stay overtime and complete the required work. The trial court found that decedent's return to work occurred during darkness and at the only hours during which a train would pass over the crossing and that those facts "substantially increased and created a risk of injury over and above that which decedent normally bore going to and from work during his regular work hours." We agree that the late night trip was more hazardous than his normal trip home.

Plaintiff contends that, because decedent was performing his "usual work," the loading and unloading of trucks, his...