Swartz v. McDonald's Corp., No. SC94489.

CourtUnited States State Supreme Court of Florida
Writing for the CourtQUINCE, J.
Citation788 So.2d 937
PartiesTessan SWARTZ, Petitioner, v. McDONALD'S CORPORATION, Respondents.
Decision Date24 May 2001
Docket NumberNo. SC94489.

788 So.2d 937

Tessan SWARTZ, Petitioner,
v.
McDONALD'S CORPORATION, Respondents

No. SC94489.

Supreme Court of Florida.

May 24, 2001.


788 So.2d 939
Alfred J. Hilado, Orlando, FL; and Bill McCabe, Longwood, FL, for Petitioner

Scott B. Miller of Hurley, Rogner, Miller, Cox & Waranch, P.A., Orlando, FL, for Respondents.

QUINCE, J.

We have for review Swartz v. McDonald's Corp., 726 So.2d 783 (Fla. 1st DCA 1998), which expressly and directly conflicts with our opinions in Nikko Gold Coast Cruises v. Gulliford, 448 So.2d 1002 (Fla.1984), and Cook v. Highway Casualty Co., 82 So.2d 679 (Fla.1955). We have jurisdiction. Art. V, § 3(b)(3), Fla. Const. For the reasons expressed below, we hold workers' compensation benefits are payable under the dual purpose exception to the "going and coming" rule and quash the decision below.

FACTUAL BACKGROUND

Tessan Swartz (Swartz) seeks review of the denial of her workers' compensation claim. At the time of her injury, Swartz was an employee of McDonald's Corporation (McDonald's). Although Swartz lived in Orlando, she commuted to Tampa for training as a human resources consultant, a position she assumed in December 1995. Swartz filed an initial worker's compensation claim on September 23, 1996, which, in combination with petitions filed February 14, 1997, and February 17, 1997, was heard on April 23, 1997. At the workers' compensation hearing, Barbara Lenco, a human resource consultant in the Tampa office, testified concerning her employment duties. Those duties included interviewing, hiring, and recruiting management personnel for McDonald's. Carolyn Jones, the human resource manager, corroborated Lenco's testimony.

The job requires consultants to travel to various events, including job fairs. As part of her training, Swartz accompanied Lenco to various functions. When traveling, consultants utilize a company car, and McDonald's subsidizes the gas payments. According to Jones, 70 to 75% of Swartz's time was spent in the Tampa office, and 25% was outside of the office. When a trainee becomes a full-fledged human resource consultant, such as Lenco, that percentage would change to 75% of the time in the field and 25% of the time in the

788 So.2d 940
office. If nothing was planned outside the Tampa office, the consultant would report to the Tampa office. If, however, an event was scheduled, the consultant could commute directly to the site. Although the standard business hours for the Tampa office were from 8:30 a.m. to 5 p.m., Swartz had no fixed hours of employment

At job fairs, consultants set up booths that indicate McDonald's presence at the event. As Swartz testified, the booth is an integral part of attending job fairs because it easily identifies well-known employers. Once the consultants open up the booth, they attach a back-drop which displays the name of the company and pictures of McDonald's employees who have been recruited. The booth is stored in the stockroom in the Tampa office. It is unrefuted that the consultant is responsible for transporting the booth from Tampa to the site of the job fair.

On Friday, March 1, 1996, Swartz and Lenco attended a regional meeting in Tampa, which was scheduled by the regional vice president. On March 4, 1996, Swartz and Lenco were scheduled to attend a job fair in Orlando. After the Tampa meeting and before leaving for Orlando, Swartz checked her voice mail, picked up short term disability paperwork that she was going to deliver to someone in Orlando, and spoke with Lenco concerning the job fair in Orlando that following Monday. Swartz and Lenco loaded part of the booth into Lenco's vehicle, along with some recruitment information for the job fair. Swartz placed part of the booth in her back seat because it did not fit in Lenco's car.

Swartz testified that in order for her to bring the booth to any job fair, she would have to go to Tampa to pick up the booth, unless she was picking it up from another consultant. Swartz also testified that she was expected to bring the booth, and there were no other alternative arrangements. Jones, Lenco, and Jill Wolf, a human resource coordinator, all confirmed that the transport of the booth was one of Swartz's employment duties. Jones further testified that job fairs typically require set-up of the booth.

After Swartz loaded the recruitment booth in her car, she left the Tampa office and started driving to Orlando, but was rear-ended on the highway around 5:30 p.m. After contacting other supervising employees, Swartz went to the hospital where she received treatment and returned home. Swartz returned to work that Monday and attended the scheduled job fair. Swartz and Lenco brought and assembled the booth, placed the printed materials on the background, and set up the table with the literature they needed to distribute.

As of May 20, 1996, Swartz's doctor advised her that she could not continue to drive, due to injuries sustained in the accident, and that she could not undertake any prolonged sitting. Swartz continued to work for McDonald's until June 7, 1996, at which time she resigned. According to Swartz, she resigned because her physical condition no longer permitted her to continue working. She experienced spasms, fainting, and headaches, and could no longer tolerate the travel necessary for her job.

PROCEDURAL HISTORY

After Swartz filed a petition for workers' compensation benefits, McDonald's denied the claim, contending that the accident did not arise out of and in the course and scope of her employment. After a hearing, the Judge of Compensation Claims (JCC) made several findings in a June 30, 1997 order. As a threshold matter, the JCC found that attending the regional meeting in Tampa did not expose Swartz

788 So.2d 941
to additional travel risks, and there was no special trip involved in attending the meeting. Rather, Swartz had received prior notice of the meeting for scheduling purposes to ensure that she could attend. In addition, the JCC rejected Swartz's contention that her delivery of disability forms to another hospitalized employee constituted an employment duty. Instead, the JCC concluded that Swartz was merely doing a personal favor for a friend, in light of Swartz's delivery of the forms several days after the accident and the employee's departure from McDonald's normal procedure for requesting human resource forms. The JCC further concluded that the accident was not compensable because Swartz was merely returning home, not performing an employment duty. As such, Swartz's claim was barred by the "going and coming" rule. The JCC further opined that Swartz's transport of the booth did not transform her trip into a compensable event. On the contrary, Swartz made no special trip to Tampa to secure the booth, her journey was regular and frequent, not prompted by a sudden request from her employer, and her transport of the booth was minor when viewed in light of her other employment responsibilities and route home

Swartz appealed the JCC's decision to the First District Court of Appeal. The First District affirmed on all issues, but addressed only one in its written opinion: whether Swartz's transport of the recruitment booth transformed her trip home into a compensable event. See Swartz, 726 So.2d at 784. The court held that Swartz's accident did not fall within the ambit of the special errand or mission exception to the "going and coming" rule. See id. at 786. The court noted that Swartz was merely performing a "minimal job duty," and that her trip on the day of the accident was not made pursuant to a request by her employer. Id. In so doing, the court distinguished Schoenfelder v. Winn & Jorgensen, P.A., 704 So.2d 136 (Fla. 1st DCA 1997), in which the court held that the attorney/claimant's accident was a compensable event where he was struck by a vehicle before getting in his car to drive to a deposition. In contrasting the two cases, the court noted the claimant in Schoenfelder established that travel to various locations was a necessary part of his job, and that he was not simply commuting, but was within the "time and place" of his employment at the time of his injury. Id.

The First District also held that Swartz's accident did not fall within the parameters of the dual purpose doctrine. See Swartz, 726 So.2d at 786. In articulating the scope of the doctrine, the court stated that the business purpose must involve "the performance of a service essential to the business of the employer such that the travel would be required to be undertaken by someone on the employer's behalf if it had not coincided with the claimant's personal journey." Id. In interpreting Nikko Gold Coast Cruises v. Gulliford, 448 So.2d 1002 (Fla.1984), the First District concluded that "the focus should not simply be on whether the travel might have included an incidental employment responsibility, but rather whether the concurrently undertaken task is so important to the business of the employer that the trip would have been required in any event." Id. at 787. The First District also interpreted this Court's precedent as adopting Judge Cardozo's rationale in Marks' Dependents v. Gray, 251 N.Y. 90, 167 N.E. 181 (1929), which reiterated that "[t]o establish liability, the inference must be permissible that the trip would have been made though the private errand had been canceled." Swartz, 726 So.2d at 787 (quoting Marks' Dependents, 167 N.E. at 183). The court concluded that Swartz was not performing a necessary or essential

788 So.2d 942
part of her employment duties. See id. In so doing, it recognized that McDonald's could have participated in the job fair without the booth, and that a special trip to procure the booth would not have been required if Swartz failed to bring it. See id. The court further stated, "Merely carrying paraphernalia or tools of her employment does not convert the claimant's trip from personal to employment travel." Id.

The dissent stated, however, that...

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  • Friebel v. Visiting Nurse Ass'n of Mid-Ohio, No. 2013–0892.
    • United States
    • United States State Supreme Court of Ohio
    • 21 Octubre 2014
    ...775, 467 N.W.2d 864 (1991) ; Jane Traylor, Inc. v. Cooksey, 31 Ark.App. 245, 252, 792 S.W.2d 351 (1990) ; Swartz v. McDonald's Corp., 788 So.2d 937, 945 (Fla.2001) ; Jenrett v. Smith, 173 W.Va. 325, 332, 315 S.E.2d 583 (1983) (using the Marks test as a tool in determining whether an employe......
  • Rodriguez v. Tri-State Carriers, Inc., No. 1D99-2371.
    • United States
    • Court of Appeal of Florida (US)
    • 4 Septiembre 2001
    ...personal convenience. Compare Gilbert v. Publix Supermarkets, Inc., 790 So.2d 1057, 1059-61 (Fla.2001), with, Swartz v. McDonald's Corp., 788 So.2d 937, 940-46 (Fla.2001). At the time of the accident, Mr. Rodriguez was not yet on the route he would have taken to make the delivery if he had ......
  • Peterson v. Cisco Sys., Inc., Case No. 2D20-244
    • United States
    • Court of Appeal of Florida (US)
    • 28 Mayo 2021
    ...to work when the collision occurred"). This rule is colloquially referred to as the "going and coming" rule. Swartz v. McDonald's Corp., 788 So. 2d 937, 942 (Fla. 2001) ("The 'going and coming' rule provides that injuries sustained while traveling to or from work do not arise out of and in ......
  • Gilbert v. Publix Supermarkets, Inc., No. SC94998.
    • United States
    • United States State Supreme Court of Florida
    • 12 Julio 2001
    ...and which cited to the First District's decision in Swartz v. McDonald's Corporation, 726 So.2d 783 (Fla. 1st DCA 1998), quashed, 788 So.2d 937 (Fla.2001), a decision which was granted review in this Court. We have jurisdiction. See art. V, § 3(b)(3), Fla. Const.; Jollie v. State, 405 So.2d......
  • Request a trial to view additional results
15 cases
  • Friebel v. Visiting Nurse Ass'n of Mid-Ohio, No. 2013–0892.
    • United States
    • United States State Supreme Court of Ohio
    • 21 Octubre 2014
    ...775, 467 N.W.2d 864 (1991) ; Jane Traylor, Inc. v. Cooksey, 31 Ark.App. 245, 252, 792 S.W.2d 351 (1990) ; Swartz v. McDonald's Corp., 788 So.2d 937, 945 (Fla.2001) ; Jenrett v. Smith, 173 W.Va. 325, 332, 315 S.E.2d 583 (1983) (using the Marks test as a tool in determining whether an employe......
  • Rodriguez v. Tri-State Carriers, Inc., No. 1D99-2371.
    • United States
    • Court of Appeal of Florida (US)
    • 4 Septiembre 2001
    ...personal convenience. Compare Gilbert v. Publix Supermarkets, Inc., 790 So.2d 1057, 1059-61 (Fla.2001), with, Swartz v. McDonald's Corp., 788 So.2d 937, 940-46 (Fla.2001). At the time of the accident, Mr. Rodriguez was not yet on the route he would have taken to make the delivery if he had ......
  • Peterson v. Cisco Sys., Inc., Case No. 2D20-244
    • United States
    • Court of Appeal of Florida (US)
    • 28 Mayo 2021
    ...to work when the collision occurred"). This rule is colloquially referred to as the "going and coming" rule. Swartz v. McDonald's Corp., 788 So. 2d 937, 942 (Fla. 2001) ("The 'going and coming' rule provides that injuries sustained while traveling to or from work do not arise out of and in ......
  • Gilbert v. Publix Supermarkets, Inc., No. SC94998.
    • United States
    • United States State Supreme Court of Florida
    • 12 Julio 2001
    ...and which cited to the First District's decision in Swartz v. McDonald's Corporation, 726 So.2d 783 (Fla. 1st DCA 1998), quashed, 788 So.2d 937 (Fla.2001), a decision which was granted review in this Court. We have jurisdiction. See art. V, § 3(b)(3), Fla. Const.; Jollie v. State, 405 So.2d......
  • Request a trial to view additional results

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