Pan American World Airways v. Wilmot

• Decision Date: 20 August 1986
• Docket Number: No. BI-31,BI-31
• Parties: 11 Fla. L. Weekly 1824 PAN AMERICAN WORLD AIRWAYS and Travelers Insurance Company, Appellants, v. Bonita WILMOT, Appellee.
• Court: Florida District Court of Appeals

Page 1373

492 So.2d 1373

11 Fla. L. Weekly 1824

PAN AMERICAN WORLD AIRWAYS and Travelers Insurance Company, Appellants, v. Bonita WILMOT, Appellee.

No. BI-31.

District Court of Appeal of Florida,

First District.

Aug. 20, 1986.

Guy A. Gladson, Jr., of Gladson & Sullivan, Miami, for appellants.

Stacy J. Ritter, of Pelzner, Schwedock, Finkelstein & Klausner, for appellee.

ERVIN, Judge.

This is an appeal of an award of workers' compensation benefits, based upon a finding that injuries occurring to a worker injured while attempting to light a cigarette were compensable. We affirm.

Appellee is a stewardess employed by Pan American Airlines. In such capacity, appellee, while having dinner at one of several restaurants assigned by her employer during a layover in Caracas, Venezuela, on October 17, 1983, attempted to light a cigarette, and burned her hand when the entire matchbook went up in flames, resulting in the loss of four weeks' work, and her payment of unreimbursed medical bills. Although the employer had not established any policy forbidding smoking by employees while on layovers, the employer/carrier (e/c) refused to accept the accident as work-related and denied payment of the ensuing worker's compensation claim. After a hearing before the deputy commissioner (dc) on June 14, 1985, the dc issued an order finding the accident compensable and ordering the e/c to pay claimant's claim of four weeks' temporary total disability, attorney's fees, and medical expenses.

Appellant, while acknowledging that an airline employee during a layover is in the course of employment, nonetheless argues that smoking is a hazardous habit which does not arise out of the course of employment, is in no way incidental to employment, and that the risks attendant to the employee's smoking habit are not peculiar to her employment, but are rather common to the public.

The appellant's argument is not persuasive. According to Professor Larson, the vast majority of states that have addressed the issue have found injuries that occur to employees while smoking to be compensable. 1A A. Larson, Workmen's Compensation Law (MB) § 21.40 (1978). Although there is no case directly on point in Florida, the traveling employee rule and the personal comfort doctrine dictate that we uphold the dc's determination of compensability.

The traveling employee rule is summarized in N. & L. Auto Parts Co. v. Doman, 111 So.2d 270, 271 (Fla. 1st DCA 1959), cert. discharged 117 So.2d 410 (Fla.1960), as follows: "[A]n employee whose work entails travel away from the employer's premises is within the course of his employment at all times during the trip other than where there is a distinct departure for a nonessential personal errand." (e.s.) In N. & L., the court held compensable injuries sustained by an employee, who, while on a business trip, fell on the premises of a motor court, where his work required him to stay. Cases illustrating various types of injuries encompassed within the traveling employee rule include: Leonard v. Dennis, 465 So.2d 538 (Fla. 2nd DCA), pet. for review den., 476 So.2d 673 (Fla.1985) (injuries sustained in an automobile accident while en route to dinner on a business trip); Jean Barnes Collections v. Elston, 413 So.2d 797 (Fla. 1st DCA 1982) (injuries resulting from rape and attack while staying in a hotel during a business trip); Gray v. Eastern Airlines, Inc., 475 So.2d 1288 (Fla. 1st DCA 1985), review denied 484 So.2d 8 (Fla.1986) (injuries suffered while playing basketball during a layover).

While conceding that claimant clearly falls within the classification of a traveling employee,...