Krushwitz v. McDonald's Restaurants of Oregon, Inc.

• Decision Date: 11 July 1996
• Citation: 919 P.2d 465,323 Or. 520
• Parties: Helen Jean KRUSHWITZ, Personal Representative of the Estate of Matthew Allen Theurer, Petitioner on Review, v. McDONALD'S RESTAURANTS OF OREGON, INC., an Oregon corporation, Respondent on Review, and McDonald's Corporation, a Delaware corporation, Defendant. CC 9104-02047; CA A73926; SC S41757.
• Court: Oregon Supreme Court

Page 465

919 P.2d 465

323 Or. 520

Helen Jean KRUSHWITZ, Personal Representative of the Estate of Matthew Allen Theurer, Petitioner on Review, v. McDONALD'S RESTAURANTS OF OREGON, INC., an Oregon corporation, Respondent on Review and McDonald's Corporation, a Delaware corporation, Defendant.

CC 9104-02047; CA A73926; SC S41757.

Supreme Court of Oregon In Banc.

Argued and Submitted Sept. 5, 1995.

Decided July 11, 1996.

[323 Or. 522-A] Kathryn H. Clarke, Portland, argued the cause and filed the petition for petitioner on review. With her on the briefs were Maureen Leonard and Lawrence Wobbrock, Portland.

I. Franklin Hunsaker, III, of Bullivant, Houser, Bailey, Pendergrass & Hoffman, Portland, argued the cause for respondent on review. With him on the brief were Douglas G. Houser, Ronald G. Stephenson, and Ronald J. Clark.

David F. Sugerman, of Paul & Sugerman, PC; John Paul Graff, of Graff & O'Neil; and Kevin N. Keaney, Portland, filed briefs on behalf of amicus curiae Oregon Trial Lawyers Association.

Chess Trethewy, of Garrett, Hemann, Robertson, Paulus, Jennings & Comstock, P.C., Salem, and Jerald P. Keene, of Roberts, Reinisch, MacKenzie, Healey & Wilson, P.C., Portland, filed a brief on behalf of amicus curiae Associated Oregon Industries.

Jonathan M. Hoffman and Julie K. Bolt, Portland, filed a brief on behalf of amicus curiae Oregon Association of Defense Counsel.

[323 Or. 522-B] Before CARSON, C.J., and GILLETTE, VAN HOOMISSEN, FADELEY, GRABER, and DURHAM, JJ. ^*

CARSON, Chief Justice.

In this action for wrongful death, we decide two issues: (1) whether an employee who was killed in an automobile accident while driving home from work suffered a "compensable injury" as that term is defined by the Workers' Compensation Law; and (2) whether the exclusivity provisions contained in the Workers' Compensation Law preclude plaintiff's wrongful death action. We answer both questions in the negative.

Because the circuit court dismissed this action pursuant to ORCP 21, for the purposes of appellate review, we accept all well-pleaded allegations contained in plaintiff's complaint and give plaintiff the benefit of all favorable inferences that may be drawn therefrom. Stringer v. Car Data Systems, Inc., 314 Or. 576, 584, 841 P.2d 1183 (1992).

Matthew Theurer, an 18-year-old high school student, worked part time at a restaurant owned by McDonald's Restaurants of Oregon, Inc. (defendant). On April 4, 1988, Theurer worked from 3:30 p.m. to 8:00 p.m., which was his normal after-school shift. In order to make some extra money, Theurer volunteered to work an additional shift later that night. He returned to McDonald's at midnight and worked from midnight until 8:21 a.m. on April 5, 1988. Upon completing that shift, Theurer told his supervisor that he was too tired to work his upcoming afternoon shift and asked that another employee replace him. Theurer then left the restaurant to drive home. His automobile crossed the center line on the highway, after he fell asleep at the wheel, and struck another automobile head-on. Theurer was killed in that collision.

Plaintiff, who is Theurer's mother and the personal representative of his estate, filed this wrongful death action against defendant and McDonald's Corporation, defendant's parent company. ¹ Plaintiff alleged that defendant negligently caused Theurer's death, in that defendant: (1) knew or should have known that Theurer had worked too many hours without adequate sleep to drive home safely; (2) should have foreseen that driving with inadequate sleep posed a risk of harm to Theurer and to others; and (3) was negligent in scheduling Theurer to work more hours than was reasonable in the circumstances. Plaintiff also alleged that, because defendant required Theurer to work more than 10 hours in one day, defendant was negligent per se and also was subject to statutory liability. Plaintiff sought compensation for economic damages suffered by Theurer's estate, noneconomic damages for pain and suffering suffered by both Theurer and plaintiff, and punitive damages.

Defendant filed several motions under ORCP 21 to dismiss plaintiff's complaint under ORCP 21. The trial court dismissed plaintiff's claims for negligence and statutory liability, both for failure to state a claim. Plaintiff then filed an amended complaint, which essentially restated the allegations contained in the original complaint and further alleged that defendant was negligent in failing to arrange alternative transportation for Theurer's commute home. Defendant again moved to dismiss, arguing that, because defendant's potential liability was based solely upon the employer-employee relationship between defendant and Theurer, the exclusivity provisions of the Workers' Compensation Law barred plaintiff's wrongful death action. Defendant further argued that Theurer's death was a "compensable injury" under the Workers' Compensation Law, because the "special errand" exception to the "going and coming" rule applied to Theurer's accident. The trial court agreed with defendant that the Workers' Compensation Law provided an exclusive remedy and, consequently, granted defendant's motion to dismiss and entered judgment against plaintiff.

Plaintiff appealed to the Court of Appeals, arguing that Theurer's death was not a compensable injury and, therefore, that the exclusivity provisions contained in the Workers' Compensation Law did not bar her wrongful death action. Plaintiff also argued that the trial court's ruling deprived her of a remedy and conferred an unequal privilege upon defendant, in violation of Article I, sections 10 and 20, of the Oregon Constitution. ² The Court of Appeals determined that Theurer had suffered a compensable injury under the "general hazard" exception to the going and coming rule and, consequently, that the exclusivity provision of the Workers' Compensation Law barred plaintiff's wrongful death action. Krushwitz v. McDonald's Restaurants, 129 Or.App. 621, 627, 880 P.2d 483 (1994). That court further held that, because Theurer's death was compensable under the Workers' Compensation Law, plaintiff had a remedy and, therefore, dismissal of the complaint violated no constitutional provisions. Ibid.

Plaintiff petitioned this court for review. We allowed review and now reverse the decision of the Court of Appeals.

The first issue, which relates to the scope of the workers' compensation statutes, is whether Theurer's accident resulted in a "compensable injury" under the Workers' Compensation Law. If Theurer's death were a compensable injury, plaintiff's wrongful death action would be barred by the exclusivity provision contained in ORS 656.018(1)(a), which provides, with exceptions not alleged to apply here, that the Workers' Compensation Law is an exclusive remedy and replaces any other liability on the employer's part. If Theurer's death was not a compensable injury, however, plaintiff may be able to pursue her wrongful death action against defendant, as discussed below. ³

ORS 656.005(7)(a) provides, in part:

"A 'compensable injury' is an accidental injury * * * arising out of and in the course of employment requiring medical services or resulting in disability or death; an injury is accidental if the result is an accident, whether or not due to accidental means * * * [.]" (Emphasis added.)

The "arising out of" prong of the compensability test requires that some causal link exist between the employee's injury and his or her employment. Norpac Foods, Inc. v. Gilmore, 318 Or. 363, 366, 867 P.2d 1373 (1994). The "in the course of" prong requires that the time, place, and circumstances of the employee's injury justify connecting that injury to the employment. Ibid. This court views the two prongs as two parts of a single "work-connection" analysis, in order to determine whether an employee suffered a compensable injury. Rogers v. SAIF, 289 Or. 633, 643, 616 P.2d 485 (1980).

In this case, the first prong of the compensability test, "arising out of," is met, because plaintiff alleges that, by permitting Theurer to work long hours on a school day, defendant effectively caused Theurer's death. The main disagreement between the parties is whether plaintiff has satisfied the second prong, "in the course of."

Plaintiff contends that, because the accident occurred after Theurer had finished working and had left defendant's premises, his death did not occur in the course of his employment. Defendant, on the other hand, contends that the "special errand" exception to the going and coming rule applies to the facts of this case, bringing Theurer's death within the course of his employment and, consequently, resulting in a compensable injury. Defendant also contends that, under Oregon's work-connection test for determining compensability, a sufficient nexus existed between Theurer's death and his employment to result in a compensable injury. For the following reasons, we agree with plaintiff that Theurer's death did not occur in the course of his employment and, therefore, that Theurer did not suffer a compensable injury under ORS 656.005(7)(a).

We first address the issue of whether Theurer's death falls within an exception to the going and coming rule. The general rule in Oregon--the "going and coming" rule--is that injuries sustained while an employee is traveling to or from work do not occur in the course of employment and, consequently, are not compensable. Cope v. West American Ins. Co., 309 Or. 232, 237, 785 P.2d 1050 (1990). The reason for the going and coming rule is that "[t]he relationship of employer and employee is ordinarily suspended from the time the employee leaves his work to go home until he resumes his work, since the employee, during the time that he is going to or coming from work, is rendering no service for the employer." Heide/Parker v. T.C.I. Incorporated, 264 Or. 535, 540, 506 P.2d 486 (1973) (internal quotation marks omitted). This court has recognized a...