Montgomery County v. Smith

Decision Date03 June 2002
Docket NumberNo. 00764,00764
PartiesMONTGOMERY COUNTY, Maryland v. George R. SMITH.
CourtCourt of Special Appeals of Maryland

Sharon V. Burrell, Principal Counsel (Charles W. Thompson, Jr., County Attorney and Christine M. Collins, Assistant County Attorney, on the brief) Rockville, for appellant.

Kenneth M. Berman (Shannon O. Bittinger and Berman, Sobin & Gross, LLP, on the brief) Gaithersburg, for appellee.



The issue we must decide is whether an injury, which an off-duty prison guard suffered while playing basketball at the detention center where he worked, arose "out of and in the course of [his] employment," as that phrase is used in the Workers' Compensation Act. See Md.Code Ann., Lab. & Empl. § 9-101(b)(1) (2001). The answer to that question basically turns on whether Smith's injury was "sufficiently work-related to be an incident of employment." Mack Trucks, Inc. v. Miller, 23 Md.App. 271, 274, 326 A.2d 186 (1974). We shall hold that it was not.


On February 3, 2000, George R. Smith ("Smith") was employed by Montgomery County as a correctional officer at the County's detention center located in Rockville. The detention center has a gymnasium built for the use of the detention center's inmates. Nevertheless, employees of the detention center are permitted to use the gymnasium when they are off-duty so long as inmates are not using it. Gymnasium use by off-duty employees is neither encouraged nor discouraged by the County.

About 4:30 p.m. on February 3, 2000, Smith, while off duty, was playing basketball1 in the detention center's gymnasium. In the course of this activity, he jumped, landed awkwardly, and injured both of his knees. He missed the next three months from work due to his injuries.

Smith filed a claim with the Maryland Workers' Compensation Commission ("the Commission") against the County, in which he sought compensation for injuries suffered on February 3. The only issue presented to the Commission was whether the injury "arose out of and in the course of" Smith's employment. The Commission ruled in favor of Smith and ordered the County to pay Smith's medical expenses, plus $427 per week for the period between February 3 and April 30, 2000.

The County filed in the Circuit Court for Montgomery County a petition for judicial review. After the parties conducted discovery, Smith and the County both filed motions for summary judgment. Movants each claimed that there was no dispute as to any material fact concerning the issue of whether Smith's injuries arose out of and in the course of his employment.

Smith filed an affidavit in support of his motion, in which he averred, inter alia, that the reason he was playing basketball on the date in question was "to maintain the high level of physical fitness required... [of] a corrections officer." He also said in his affidavit that, "on several occasions" prior to the accident, shift commanders had joined correctional officers in the gymnasium and had also played basketball.

Smith attached to his motion several pages from the Montgomery County Department of Corrections and Rehabilitation Departmental Procedural Manual ("the manual"). The manual classified uniformed correctional officers, such as Smith, as "Medical Group I." Group I officers were required to have "an extraordinary degree of physical fitness and mental health." Group I employees in Smith's age group (he was thirty-one when injured) were also required to have complete periodic medical examinations "not less than" once every three years.

The County supported its summary judgment motion with an affidavit by Richard Tegethoff, Deputy Warden of Custody and Security at the detention center where Smith worked. In his affidavit, Warden Tegethoff said, inter alia:

[C]orrections officers, including George R. Smith, are required to undergo a physical examination prior to being hired and periodic physical examinations thereafter, but are not subject to any further mandatory physical fitness tests, and physical ability is neither regulated nor evaluated after being hired.
... [W]hile it is desirable that corrections officers maintain a general state of good physical fitness for the safe performance of their job duties, the Montgomery County Department of Corrections neither promotes nor discourages participation in physical fitness activities.

Smith's counsel filed a memorandum opposing the County's summary judgment motion, in which he argued:

Here, ... [Smith's] injury arose out of and in the course of his employment, because [he] is a corrections officer on call twenty-four (24) hours a day. At any time during one of the games, the [a]ppellee could have been called to duty and would have been required to stop playing and respond. Also, the Montgomery County Policy and Procedures Manual requires that correctional officers maintain extraordinary physical condition to continue in the position. Lastly, at the time of his injury, the [a]ppellee was training to meet fitness standards to become part of the [a]ppellant's elite "Emergency Response Team." The fitness standards for this team were established in a [m]emorandum from [Smith's] supervisor, Richard Tegethoff, the individual that signed the [a]ppellant's late filed affidavit (see Exhibit A). The fitness standards required are extremely high level of cardiovascular and physical strength conditioning. Mr. Tegethoff's [m]emorandum was issued on February 2, 1999 (the day before the [a]ppellee's injury),2 and the deadline to meet the standards for the Emergency Response Team was in March 1999 (approximately one month later)! Clearly, peak physical fitness was a requirement of [Smith's] job, and it was while trying to achieve this level of physical fitness that [he] injured himself.

(Emphasis added.)

The portion of counsel's argument that we have emphasized was not supported by affidavit and is not shown to be true by any document in the file; it therefore should have been disregarded by the motions judge. See Md. Rule 2-311(d).3

After hearing oral argument from counsel, the court granted summary judgment in favor of Smith and denied the County's motion. The motions judge explained why in her oral opinion:

What I have to determine is was the Commission correct. There is a presumption of correctness in the Commission's findings.4
I find that Mr. Smith as a correctional officer was playing basketball after hours at the detention center on the premises with the consent and knowledge of the employer.
I also find that it is a benefit to the employer in the special situation of a detention center to have extra guards so near and available in case there is a problem. That is an extra benefit to the employer, so I will sustain the finding of WCC [Workers' Compensation Commission].

There was nothing in the record to support the "findings" of the court set forth in the last-quoted paragraph.


A.The Distinction Between and Definitions of "Arising Out of" and "In the Course of Employment"

In order for a worker's injury to be compensable, it must be shown that he or she suffered an "accidental personal injury." Included in the definition of an accidental personal injury is an accident "that arises out of and in the course of employment."6 See Md.Code Ann., Lab. & Empl. § 9-101(b)(1) (hereafter "L.E.") (2001) (emphasis added).

The Court of Appeals, in Knoche v. Cox, 282 Md. 447, 453-56, 385 A.2d 1179 (1978), discussed, in detail, the difference between "in the course of employment" and "arising out of employment." Only if both conditions are satisfied is the injury within the operation of the Act. Id. at 453, 385 A.2d 1179 (citing Perdue v. Brittingham, 186 Md. 393, 402, 47 A.2d 491 (1946)).

Nevertheless, as Professor Clifford Davis observed, "where an injury clearly `arises' from the employment, the `in the course' requirement may be relaxed, and where the injured employee is squarely `in the course' of employment, the arising requirement may be relaxed." Clifford Davis, Workmen's Compensation in Connecticut—The Necessary Work Connection, 7 Conn. L.Rev. 199, 201 (1974) (citing Malone, Some Recent Developments in the Substantive Law of Workmen's Compensation, 16 Vand. L.Rev. 1039, 1050 (1963)). See also King Waterproofing Co. v. Slovsky, 71 Md.App. 247, 252 n. 4, 524 A.2d 1245 (1987)

(citing 1A A. Larson, Workmen's Compensation Law § 29.00 (1985)).

1. "Arising Out of Employment"

Arising out of employment "refers to the cause or origin of the accident." Knoche, 282 Md. at 455, 385 A.2d 1179. "[T]he injury arises out of employment when it results from some obligation, condition or incident of the employment, under the circumstances of the particular case." Id. "The causative danger `need not have been foreseen or expected, but after the event it must appear to have had its origin in a risk connected with the employment, and to have flowed from that source as a rational consequence.'" Id. at 455-56, 385 A.2d 1179 (quoting Hill v. Liberty Motor, 185 Md. 596, 607-08, 45 A.2d 467 (1946)).

"[I]t is not necessary that there should exist a direct, active, or physical connection between the act causing the accident and the employment, but it is sufficient if the accident, without having for its cause the serious and willful misconduct of the servant, arises directly out of circumstances which the servant had to encounter because of his special exposure to risks that, although external, were incidental to his employment."

Knoche, 282 Md. at 456, 385 A.2d 1179 (quoting Boteler v. Gardiner-Buick Co., 164 Md. 478, 482, 165 A. 611 (1933)).

When determining whether an accident arose out of the employment, Maryland uses the "positional risk test."7Mulready v. University Research Corp., 360 Md. 51, 66, 756 A.2d 575 (2000). Under this test, "an injury arises out of employment if it would not have occurred if the employee's job had not required him...

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