Ryan v. Kasaskeris

• Decision Date: 13 December 1977
• Docket Number: No. 356,356
• Citation: Ryan v. Kasaskeris, 38 Md.App. 317, 381 A.2d 294 (Md. App. 1977)
• Parties: Frank B. RYAN et al. v. Stella KASASKERIS.
• Court: Court of Special Appeals of Maryland

Page 317

38 Md.App. 317

381 A.2d 294

Frank B. RYAN et al. v.Stella KASASKERIS.

No. 356.

Court of Special Appeals of Maryland.

Dec. 13, 1977.

Steven A. Charles, Baltimore, with whom were Hardwick, Tripoda & Harris, Baltimore, on the brief, for appellants.

James S. Brocard, Washington, D. C., for appellee.

Argued before GILBERT, C. J., and WILNER and COUCH, JJ.

WILNER, Judge.

The issue before us is a narrow one, but with important and widespread consequences.We are asked to determine whether an injury sustained by a domestic servant, whose transportation expenses are reimbursed by her employer, arises out of and in the course of her employment, and is therefore compensable under the Workmen's Compensation Act, if it occurs while she is in transit to or from her employer's home.

The question comes to us because of an unfortunate episode in the life of Stella Kasaskeris.Ms. Kasaskeris, appellee here, was employed as a domestic servant in the home of Frank B. Ryan.She worked three days a week at a compensation of $20.00 a day.When she was first employed, she was unfamiliar with the public transportation system, and also apparently with the English language; and so Mrs. Ryan drove her to and from work.Each day that appellee worked at the Ryan home, Mrs. Ryan would pick appellee up at her home in Wheaton, transport her to the Ryan home in Chevy Chase, and, in the afternoon, drive her back to Wheaton.By automobile, this was a 15-to 25-minute trip, one way, depending on traffic.

After several months, Mrs. Ryan became disenchanted with this arrangement, and, through a mutual friend, advised appellee that she(Mrs. Ryan) preferred not to drive appellee to and from work any longer.At this point, appellee appeared to be somewhat more comfortable with the public transit system, so the friend suggested that, in lieu of driving appellee, as before, Mrs. Ryan pay the cost of public transportation, which was estimated to be $3.80 per week.¹This was agreed to by both sides; thenceforth, appellee travelled to and from the Ryan home by public transit bus, and Mrs. Ryan added $3.80 to her compensation, paying her $63.80 per week for the three days' work.

A complicating feature in this story is the fact that the nearest bus stop was about two blocks from the Ryan home, and this leg of the trip appellee walked.

The tragedy struck on January 28, 1976, at which time the new arrangement had been in effect for about eighteen months.Appellee had alighted from the bus, walked the two blocks, and was nearly across the street in front of the Ryan home when she was struck by a car.Her injuries were substantial.Appellee filed a claim with the Workmen's Compensation Commission, which disallowed it on the ground that she did not sustain an accidental injury arising out of and in the course of employment.On appeal, the Circuit Court for Montgomery County reversed the Commission's decision, and the employer-insurer has appealed from that action.

Three basic principles are involved in the resolution of the issue:

FIRST: An injury is compensable under the Workmen's Compensation Act only if it arises "out of and in the course of" the employment.²

SECOND: An injury occurring while an employee is going to or returning from his place of employment is generally not compensable because it is not considered to have arisen out of and in the course of employment.³

THIRD: Where, however, the employer arranges for, provides, or, in some instances, reimburses the employee for the expense of, transportation to and from the jobsite, that journey may be considered as part of the employment, thereby making an injury occurring during the journey compensable.⁴

The precise question is whether, and to what extent, the circumstances of appellee's employment and injury caused her to fall within the protective ambit of the third principle.To answer the question, we must consider the true scope and rationale of the principle, as gleaned from the circumstances of its prior application, the nature of appellee's employment, and her status at the time the injury occurred.

The genesis of the third principle, in Maryland, was Harrison v. Central Con. Co., 135 Md. 170, 108 A. 874(1919).The claimant there lived in Baltimore City.He was employed by Central Construction Company to work on a construction project at the Edgewood Arsenal in Magnolia; and it was part of his employment contract that the employer would furnish him with free transportation between Baltimore and Magnolia.The employer arranged with the Pennsylvania Railroad for special "work trains" to carry the laborers between the two points, and the claimant, along with his fellow workmen, was issued a "button" that entitled him to ride the train without charge.

One day, the claimant boarded what he thought, and was told, was the "work train."He soon discovered that he was on the wrong train a regular passenger train that did not stop in Magnolia.He was then told to get off that train at Back River and wait for the "work train."This he did, and it was while boarding the second train that he was injured.

On these facts, and relying on out-of-State cases, the Court of Appeals inaugurated the "free transportation" rule in Maryland with this statement (135 Md. at 177, 108 A. at 877):

"When the injury occurs before the beginning or after the termination of work there are two general rules applicable to the question as to whether it arose out of and in the course of the employment.The first is that an employee, while on his way to work, is not in the course of his employment.The second is that where the workman is employed to work at a certain place, and as part of his contract of employment there is an agreement that his employer shall furnish him free transportation to or from his work the period of service continues during the time of transportation, and if an injury occurs during the course of transportation it is held to have arisen out of and in the course of the employment."

Upon this theory, the Court held that it was error for the lower court to have ruled, as a matter of law, that the injury did not arise out of and in the course of claimant's employment.⁵

The Court next dealt with this doctrine in Miller v. United Rwys. & Elec. Co., 161 Md. 404, 157 A. 292(1931).The claimant's husband, for whose death she sought compensation, was employed by United Railways to clean streetcars at the West Baltimore Street carbarn between the hours of 7:00 P.M. and 6:00 A.M.He, and all other employees, had passes entitling them to free transportation on the company's streetcars, and the decedent regularly rode the streetcars to go to and from work.

The employee's weekly salary was due on Friday, and he was able to pick it up at any one of four carbarns in the city, including the one where he worked.He found, however, that the "pay car" did not arrive at the West Baltimore Street carbarn until Friday afternoon; and, rather than wait, he took the streetcar to another carbarn where he could get his pay earlier in the day.The trip apparently involved taking two streetcars.On the Friday in question, he completed his work, took the first streetcar, and, while crossing a public street in order to transfer to the second streetcar, was struck by an automobile and suffered fatal injuries.

The claimant relied on Harrison and another case involving a salesman that is not in point here ⁶ to support her claim.The Court characterized Harrison as a case in which "it might have been found that the employee was being taken charge of by the employer while he was attempting to board a train provided by the employer to bring men to the work", and rejected it as controlling the situation then before it.Though acknowledging some similarities, the Court warned:

"Indeed, as has been remarked by some other courts, in almost any application now of this statutory provision, that only injuries which have arisen out of and in the course of the employment are compensable, examination of the reported decisions brings forward a multitude of similar cases which might be cited as precedents on one side and another, and not only is dependence upon precedents for a guide made difficult, but evidently it is attended with some danger of losing touch with the statute.It is only the simple direction of the statute that is being applied to each set of facts, and there is danger that in following the lead of resemblances in the facts of decided caseswe may use them as stepping stones to foreign ground."

The Court concluded that the decedent's injuries did not arise out of and in the course of his employment.He had finished his work, and was free to get his pay at any one of several places which he could get to by any one of several means.That he chose to take the streetcar was of no consequence.

In Boyer v. Pennsylvania R. Co., 162 Md. 328, 159 A. 909(1932), the Court was called upon to interpret the Federal Employers' Liability Act.The case is not particularly relevant except for the fact that Harrison and Miller were cited for the proposition that an employee is not covered when going to work unless "in transportation furnished by the employer as a part of his contract of employment."The employee in that case was proceeding to work in a private automobile driven by a fellow worker, and the claim was denied.

In Lancaster v. Celanese Corp., 163 Md. 516, 163 A. 209(1932), an employee had completed his work, left the plant, and was crossing a street to catch a bus when he was killed.The employer did not furnish transportation, and the Court had no difficulty in affirming the denial of coverage.It did, however, make this statement, at page 518, 163 A. at page 210:

"The circumstances under which injury sustained during transportation may be compensable, as stated in the Harrison case . . . depend 'upon whether the conveyance has been provided by him (employer), after the real beginning of the...