Morris v. Board of Educ. of Prince George's County

• Decision Date: 01 September 1995
• Docket Number: No. 13,13
• Citation: 663 A.2d 578,339 Md. 374
• Parties: , 103 Ed. Law Rep. 269 Joyce A. MORRIS et al. v. BOARD OF EDUCATION OF PRINCE GEORGE'S COUNTY. ,
• Court: Maryland Court of Appeals

Page 374

339 Md. 374

663 A.2d 578, 103 Ed. Law Rep. 269

Joyce A. MORRIS et al. v. BOARD OF EDUCATION OF PRINCE GEORGE'S COUNTY.

No. 13, Sept. Term, 1995.

Court of Appeals of Maryland.

Aug. 22, 1995.

Richard A. Finci (Houlon & Berman, on brief), New Carrollton, for appellants.

Andrew W. Nussbaum (Reichelt, Nussbaum, LaPlaca & Miller, on brief), Greenbelt, for appellee.

Argued before MURPHY, C.J., and ELDRIDGE, RODOWSKY, CHASANOW, KARWACKI, BELL and RAKER, JJ.

MURPHY, Chief Judge.

The sole question presented is whether the circuit court properly determined that Joyce A. Morris did not sustain an accidental personal injury arising out of and in the course of her employment, which was compensable under Maryland Code (1957, 1991 Repl.Vol.) § 9-101 et seq. of the Labor and Employment Article (the Workers' Compensation Act or the Act). ¹

I.

The basic facts of this case are undisputed. On January 9, 1991, Morris died as a result of injuries she sustained in an automobile accident, which occurred in Fairfax County, Virginia. At the time of the accident, Morris was operating her own vehicle while en route to her job in Maryland as a speech pathologist for the Prince George's County Board of Education (the Board), a position she had held for approximately twenty years. Morris was scheduled to report to work between 7:15 and 7:30 a.m. on January 9; the accident occurred at approximately 6:45 a.m. when she was only about three or four miles from her home in Chantilly, Virginia. Morris was not performing any of her designated job responsibilities for the Board at the time of the accident.

In determining an individual's employment status, the Board divides the five day work week into ten half-day segments; a full-time employee maintains a ten-tenths schedule, while a part-timer works some amount less than that. On the date of the accident, Morris, by her own choice, was employed part-time on a six-tenths basis. Part-time speech pathologists design their own schedules based upon the number of hours they want to work per week. They are free to determine both the number and the particular days they will work, subject to approval by the principal of their assigned school(s).

For the 1990-1991 school year, Morris's job responsibilities involved providing speech therapy services at two schools, Tayac and Rose Valley Elementary Schools, which are located less than five minutes apart by automobile in Prince George's County. ² It was Morris's task to decide how to divide her time between the two places. She did so by assessing the needs of the children requiring speech therapy and preparing a weekly schedule based on those needs, which was reviewed and approved by her supervisor. According to the schedule Morris developed, she worked three full days a week, spending half of each day at each of her assigned schools. Morris could have arranged a schedule in which she traveled to only one school per day if she had, for example, planned to work a full day at each of her schools and then spent an additional half day at each one. According to testimony, Morris never requested to be assigned to only one school.

The Board did not provide transportation for speech pathologists assigned to more than one school. It also did not assist employees in financing the purchase of vehicles to be used for travel between schools nor did it pay for these vehicles' maintenance, fuel, or repair. Furthermore, the Board did not specify the type of vehicle to be driven, where its employees should live, or what route should be taken to and from work. The Board did provide reimbursement for business mileage; however, compensation for travel between home and the "base" school was not included. ³ Finally, the Board did not specifically require its employees to have automobiles nor was there anything in the job description of a speech pathologist that indicated that this was a condition of such employment.

On December 13, 1991, Morris's husband filed a claim with the Workers' Compensation Commission (the Commission) on her behalf. On December 17, 1992, the Commission determined that Morris did in fact sustain an accidental injury arising out of and in the course of her employment, which caused her death, and awarded partial dependent benefits to her two minor children. The Board appealed to the Circuit Court for Prince George's County and, after the parties' cross-motions for summary judgment were denied, a non-jury trial was held. ⁴ On July 15, 1994, at the conclusion of the presentation of evidence, the court (Sothoron, J.) reversed the Commission's earlier decree, determining that the injuries causing Morris's death did not arise out of and in the course of her employment. It distinguished the facts of the instant case from those in Alitalia v. Tornillo, 329 Md. 40, 617 A.2d 572 (1993), concluding that the own conveyance exception to the going and coming rule set forth in Alitalia did not apply in the case before it. Prior to intermediate appellate review, we granted certiorari to consider the important issue raised in this case.

II.

Under Maryland's Workers' Compensation Act, "each employer of a covered employee shall provide compensation ... to ... the dependents of the covered employee for death of the covered employee ... resulting from an accidental personal injury sustained by the covered employee[.]" § 9-501(a). An "accidental personal injury" is one that "arises out of and in the course of employment." § 9-101(b)(1). See Alitalia, supra. We have held:

" 'The words "out of" and "in the course of" employment as used in the Workmen's Compensation Act are not synonymous....' When both conditions are satisfied, the injury is within the operation of the Act.... '[I]n the course of employment' ... refers to the place, time and circumstances under which the accident resulting in the injury or death occurs, [while] '[arising] out of the employment' refers to the cause or origin of the accident."

Knoche v. Cox, 282 Md. 447, 453-56, 385 A.2d 1179 (1978) (quoting Pariser Bakery v. Koontz, 239 Md. 586, 590, 212 A.2d 324 (1965)). See also Hastings v. Mechalske, 336 Md. 663, 677-78, 650 A.2d 274 (1994).

It is well settled that injuries sustained by an employee while going to and coming from work are generally not considered to arise out of and in the course of employment and are, therefore, not compensable under the Act. Alitalia, supra, 329 Md. at 44, 617 A.2d 572. See also Board of Trustees v. Novik, 326 Md. 450, 453, 605 A.2d 145 (1992); Wiley Mfg. Co. v. Wilson, 280 Md. 200, 206, 373 A.2d 613 (1977); Saylor v. Black & Decker Mfg. Co., 258 Md. 605, 607-08, 267 A.2d 81 (1970). This is because getting to work is considered to be an employee's own responsibility and ordinarily does not involve advancing the employer's interests. Oaks v. Connors, 339 Md. 24, 660 A.2d 423 (1995). Moreover, the hazards encountered by an employee while commuting to work are common to all workers, no matter what their job, and, hence, such risks cannot be directly attributable to a person's particular employment. Novik, supra, 326 Md. at 453, 605 A.2d 145. See also Salomon v. Springfield Hospital, 250 Md. 150, 154, 242 A.2d 126 (1968) (stating that "traveling upon ... busy streets ..., while it does entail some degree of danger, does not subject an employee traveling to and from work, to a greater degree of danger than he would be exposed to as a member of the general public"); Tavel v. Bechtel Corporation, 242 Md. 299, 303, 219 A.2d 43 (1966) (explaining that "workmen, like other members of the general public, are not insured against the common perils of life"). This principle is known as the "going and coming rule" and is subject to several exceptions. ⁵ Alitalia, supra, 329 Md. at 44, 617 A.2d 572.

Appellant Morris argues that the circuit court erred when it determined that the injury to his deceased wife did not arise out of and in the course of her employment because the circumstances of the accident were such as come squarely within the own conveyance exception to the going and coming rule set forth in Alitalia, supra. He contends that Alitalia held that where an employee is required, as a condition of employment, to have a personal vehicle available for use during the work day in order to fulfill the employer's business purposes, the employee's commute to work is within the scope of employment. Morris maintains that the Board's failure to provide transportation to speech pathologists assigned to more than one school amounts to an implicit requirement that such employees have a vehicle available for any necessary travel.

Each case involving the going and coming rule and its exceptions turns on its own particular facts. Alitalia, supra, 329 Md. at 46, 617 A.2d 572; Wiley Mfg., supra, 280 Md. at 216, 373 A.2d 613; Saylor, supra, 258 Md. at 610-11, 267 A.2d 81 (stating that " '[n]o exact formula can be laid down which will automatically solve every case' "). Our holding in Alitalia, in which compensable injuries were found to have been sustained by an employee in an accident that occurred while the employee was driving home in a car specifically required for use in his employment, was based upon the specific facts of that case, facts that are readily distinguishable from those in the case now before us.

In Alitalia, Tornillo, the injured employee, was a passenger sales representative for Alitalia, an Italian air carrier. His primary business-related responsibilities included selling tours and travel packages to travel agencies, visiting existing clients, distributing promotional materials to attract new customers, servicing his accounts by telephone from the company's Washington, D.C. office, attending weekly sales meetings, and running occasional errands for his employer, all of which required him to travel throughout the Maryland-Virginia area on a daily basis. Tornillo sometimes made sales calls on his way to and from his home in Rockville.

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