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Commonwealth
of Kentucky
Workers’
Compensation Board
OPINION
ENTERED: September 11, 2015
CLAIM NO. 201487612
TRAVIS CARTER PETITIONER
VS. APPEAL FROM HON. STEVEN G BOLTON
ADMINISTRATIVE LAW JUDGE
CIRCLE K
HON. STEVEN G BOLTON,
ADMINISTRATIVE LAW JUDGE RESPONDENTS
OPINION
REVERSING
AND REMANDING
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BEFORE: ALVEY, Chairman, STIVERS and RECHTER, Members.
RECHTER,
Member. Travis
W. Carter (“Carter”) appeals from the April 14, 2015 Opinion and Order
dismissing his claim rendered by Hon. Steven G. Bolton, Administrative Law
Judge (“ALJ”). The ALJ determined
Carter’s injury did not arise out of and in the course of his employment. The question on appeal is whether Carter’s
actions, in violation of a company safety policy, amounted to a deviation from
the scope of his employment. Under the
circumstances of this case, we conclude Carter injured himself within the
course and scope of his employment.
Therefore, we reverse.
The factual circumstances relevant to the issue on appeal are not in
dispute. Carter was employed as a third
shift cashier at Circle K. On the
evening of March 29, 2014, he arrived at work at 9:30 p.m. to allow time to eat
prior to his shift beginning at 10:00 p.m.
Shortly after his arrival and before he had clocked in, he observed a
young male shoplifting. He stepped out
of the office where he was having his meal, and told the young man to “come
here.” Instead, the young man turned and
walked out the door of the store. Carter
testified he exited the store directly behind the young man and grabbed the
hood of his sweatshirt. The young man
then took off running, causing Carter to lose his balance and fall on the
pavement. He fractured his arm and tore
his rotator cuff. Circle K prohibits
employees from pursuing or attempting to apprehend shoplifters. Relevant provisions of the Circle K Handbook
include the following:
If
you ever witness a shoplifting or a robbery, do not chase or attempt to
apprehend the thief.
The
use of force to prevent a crime is outside the scope of employment, and may
subject an associate to substantial personal liability.
Additionally, the Store Expectation Form includes the following:
For
my safety, and that of others, I agree not to confront, chase or pursue persons
committing crimes on store property; as such behavior is extremely dangerous
and could result in severe injury. In
addition, I understand that it is the Company policy that I will work INSIDE
the store late night hours unless there is a safety emergency that requires my
attention.
Carter acknowledged he
signed the Store Expectation Form when he was hired in 2011. He testified he was aware of the policy
against chasing shoplifters. Shortly
after this incident, Carter was terminated for breaking company policy.
At the final hearing,
Carter argued he was injured during the course of his employment with Circle K,
notwithstanding the fact the injury occurred before he had clocked in. Noting Circle K did not vigorously challenge
this proposition, the ALJ agreed and concluded:
I
do find that [Carter’s] practice of reporting 30 minutes early for his shift to
have an evening meal, while incidentally performing job-related functions that
accrued to the benefit of the employer, especially in view of [Circle K’s]
acceptance of this practice, operates to eliminate the “going to/coming from”
rule as a bar to [Carter’s] claim.
The ALJ then turned to
Circle K’s primary argument: that Carter’s actions constitute a substantial
deviation from his employment so as to bar his claim. Citing Phillips v. Genmar, Inc., 998
S.W.2d 483 (Ky. 1999), the ALJ recognized an employer’s right to limit the
scope of employment. Finding no
factually analogous Kentucky cases, the ALJ examined Wright v. Bi-Lo, Inc.,
442 S.W.2d 186 (S.C. App. 1994) and Scheller v. Industrial Comm’n of Arizona,
656 P.2nd 1279 (Ariz. Ct. App. 1982). In both Wright and Scheller, a
claim for injuries was barred where an employee was injured while chasing a
shoplifter or trespasser in violation of company policy. Additionally, the ALJ relied upon Professor
Arthur Larson, who stated “If the act which the employee undertakes outside of
regular duties is positively prohibited, it will probably be held to be outside
the course and scope of employment, even if designed to advance the employer’s
work…” 1A A. Larson, Workmens’ Compensation Law, §27.14 at 5-261. Finally, the ALJ considered Carter’s argument
that his actions amount to a violation of a safety rule, but do not constitute
a substantial deviation from the course and scope of the employment. He then concluded:
KRS 342.0011(1) requires that, for a traumatic
event such as the one sustained by Mr. Carter to be compensable, it must arise
out of and in the course of employment. The
term “arise out of” is the causation element of that requirement and applies
when it is apparent to the rational mind upon consideration of all
circumstances that there is a casual connection between the conditions under
which Mr. Carter’s work was to be performed and the resulting injury. The phrase “course of employment” refers to
the time, place, and circumstances under which the accident occurs. Phil Hollenbach Co. v. Hollenbach, 204
S.W.152 (Ky. 1918); State Highway Commission v. Saylor, 68 S.W.2d 26
(Ky. 1933). Carter has the burden of
providing both elements, i.e. that his accident was caused by his employment at
Circle K and that it occurred in the time, place, and circumstances of his
employment. Masonic Widows and
Orphans v. Lewis, 330 S.W.2d (Ky. 1959).
While
the specific fact scenario of a convenience store cashier chasing an observed
shoplifter out of the store and physically grabbing the shoplifter in an
attempt to apprehend and detain him is one of first impression in Kentucky,
Plaintiff’s argument that the Defendant’s protections against such conduct are
limited to a safety penalty under the provisions of KRS 342.165 (1) is not
compelling here. Although this is
certainly a safety issue in part, it goes far beyond the bounds of safety as it
affects an employer’s interests. These
interests include exposure to civil liability, employee health, welfare and
morale, the welfare of the consuming public and last, but not least, the
goodwill of the consuming public, who may not want their local “quick pick” to
turn into a battleground.
I do
not believe that Mr. Carter’s actions, however laudable his intent, arose out
of or within the course and scope of his employment with Circle K. Those actions were not caused by his
employment with Circle K. In fact, they
were specifically prohibited by written policies concerning which he
acknowledged his familiarity. He took it
upon himself to knowingly violate Company rules by following a shoplifter out
of the store and forcibly grabbing him in an attempt at detention. Actions of an employee that are in clear
violation of Company rules or employer instructions cannot be found to have
arisen from such employment. Chesser
v. Louisville Country Club, 313 S.W.2d 410 (Ky. 1958).
Mr.
Carter’s actions that resulted in his accident did not arise out of and in the
course and scope of his employment with Circle K. There was no service or benefit to Circle K
by Carter’s actions. There is no
evidence that would support a finding that Circle K had permitted or acquiesced
to actions such as those engaged in by Mr. Carter. As admitted by Mr. Carter, there is no
dispute that he violated express and known company rules in doing what he
did. As Mr. Carter’s actions constitute
a substantial deviation from his employment Mr. Carter’s actions constitute a
substantial deviation from his employment as a matter of law, I must dismiss
Carter’s claim in its entirety Ratliff v. Epling, (supra).
Carter did not file a petition for reconsideration. On appeal, he argues the undisputed facts do
not establish he acted outside the course and scope of his employment. Rather, he claims he committed a safety
violation by failing to follow Circle K’s policies.
KRS
342.0011(1) provides that a compensable injury must arise “out of and in the
course of employment.” An injury arises
“out of” the employment when there is a causal connection between the
conditions of the employment and the injury.
Louisville & Jefferson County Air Bd. v. Riddle, 190 S.W.2d
1009, 1011 (Ky. App. 1945). An injury
occurs “in the course” of the employment when it is sustained while performing
some service for the employer while in the line of duty. Id.
“[T]he words ‘arise out’ refer to the cause of the accident, while ‘in
the course of’ relate to the time, place and circumstances of the accident.” Id. See
also Abbott Laboratories v. Smith, 205 S.W.3d 249, 253 (Ky. App.
2006). Stated otherwise, “[a]n injury
occurs in the course of an employment if it takes place during the employment,
at a place where the employee may reasonably be, and while the employee is
working or otherwise serving the employer’s interests.” Clark County Bd. of
Educ. v. Jacobs, 278 S.W.3d 140, 143 (Ky. 2009).
At
this point in the analysis, it must be reiterated that the ALJ determined
Clark’s claim is not barred by the “coming and going” rule, notwithstanding the
fact the injury occurred before his shift began and before he had clocked
in. That finding has not been appealed,
and we note it is supported by substantial evidence. The testimony was undisputed Circle K was
aware of Clark’s habit of arriving before his shift began to eat a meal, and
the employer derived some benefit by his early presence during shift
changes. Thus, our attention turns
exclusively to whether Clark’s actions fell outside the scope of his employment
with Circle K.
“To
arise ‘out of’ the employment the accident sustained must have a causal
connection with the work to be performed; it must be one which is possible to
trace to the nature of the employee’s work or to the risks to which the
employer’s business exposes the employee.” Colwell v. Mosley, 309 S.W.2d
350, 351 (Ky. App. 1958). An employee’s
actions may take him out of the scope of his employment if he deviates or
departs from the business of his employer.
In Colwell, a truck driver was killed when he briefly stopped to
assist a relative with a stalled car, and was struck by an oncoming
motorist. The Court of Appeals
determined the employee’s actions took him outside the scope of his employment
as a truck driver:
The
extent of the deviation from the usual route over Highway No. 421 is not the
controlling factor in the instant case, but rather the fact that Mosely made
the deviation for the sole purpose of accommodating his brother-in-law. He had departed from the scope of this
employment and at the time and place of the accident was engaged on a personal
mission which severed the relation essential to fix liability upon his employer
under our Workmen’s Compensation Act.
The
Court of Appeals subsequently noted, in analyzing the Colwell case, that
the nature of the personal mission itself created the hazard which resulted in
Mosely’s death. Ratliff v. Epling,
401 S.W.2d 43, 45 (Ky. App. 1966). The
hazardous nature of the personal mission was a consideration for the Court of
Appeals in Ratliff. There,
Ratliff had quit work for the day and was on the way home, though still on his
employer’s property, when the car stalled.
He exited the vehicle and proceeded to gather loose coal for personal
use when the embankment caved in on him, causing his death. Though Ratliff was killed on the operating
premises of his employer, the act of collecting loose coal was a personal
mission involving increased hazard because he was near a high wall of the
embankment. For these reasons, the
injury did not “arise out of” the employment.
However,
the issue in this case is not whether Carter deviated on a personal mission
from the scope of his employment, as in Ratliff and Colwell. The more narrow issue is whether Carter’s
failure to follow his employer’s policies can constitute a deviation; or,
stated otherwise, whether an otherwise work-related injury is non-compensable
because it occurred as a result of the employee’s disregard of a safety policy. KRS Chapter 342 does not squarely answer this
question. KRS 342.165 requires the
reduction of an employee’s award if the injury was caused “in any degree by the
intentional failure of the employee to use any safety appliance furnished by
the employer or to obey any lawful and reasonable order or administrative
regulation of the executive director or the employer for the safety of
employees or the public…” The fact this provision exists evinces the
legislatures intent to reduce an employer’s liability for injuries caused by a safety
violation, but not remove the employer’s liability altogether.
Still,
in some instances, the employee’s failure to follow his employer’s orders
constitutes a deviation so substantial as to remove the action from the scope
of employment. In Phillips v Jenmar,
Inc., 998 S.W.2d 483 (Ky. 1999), the claimant was instructed by his
supervisor not to report to work because he was suffering from severe
side-effects of alcohol withdrawal. The
claimant disobeyed this order and reported to work nonetheless. He was injured when he climbed a ladder,
suffered an attack of tremors related to the alcohol withdrawal, and fell to
the concrete floor below. The Kentucky
Supreme Court affirmed the dismissal of his claim, and explained why the
claimant should not merely be subject to a safety violation penalty:
Safety
rules generally pertain to the manner in which work is to be performed;
however, claimant’s injury did not result from a failure to obey an order
concerning the manner in which his work should be performed or concerning
workplace safety. He was injured because
he disobeyed an order not to work due to his physical condition.
Id. at
486.
Chesser
v. Louisville Country Club, 313 S.W.2d 410 (Ky. App. 1958),
involved an injury which occurred while the employee was breaking company
policies. While waiting to be called to
service, Chesser, a golf caddy, chased a cat into the club’s boiler room and
drank from a bottle of whiskey he found there.
Unfortunately, the whiskey bottle actually contained a chemical cleaning
compound and he was severely injured.
The Court of Appeals concluded the injury did not occur within the scope
of Chesser’s employment because he did not have permission to enter the boiler
room that day, and was prohibited from drinking alcohol while working. The Court determined Chesser had “abandoned
the place of his employment and had entered a forbidden area on a venture of
his own which was wholly unrelated to his employment.” Id. at 411.
More
recently, in U.S. Bank Home Mortgage v. Schrecker, the Kentucky Supreme
Court deemed the employee’s injuries non-compensable when she was struck by a
vehicle while on a paid lunch break. 455 S.W.3d 382 (Ky. 2015). Placing emphasis on the fact the employee was
jaywalking when injured, the Court determined her chosen route “exposed her to
a hazard completely removed from normal going and coming activity, and which
was expressly prohibited by the Commonwealth and impliedly prohibited by [her
employer].” Id. at 387. The Court was most persuaded by the fact the
employee’s injuries occurred off-premises, and were caused by and during a
substantial deviation from the normal going and coming activity; i.e., by
crossing the street between intersections.
Id.
It
is important to note, however, the Schrecker Court recognized the result
might be different if the employee’s injury had not occurred during a work
break off the employer’s premises.
Responding to the dissent’s claim that the decision injected negligence
into the realm of workers’ compensation, the majority provided the following
quote from Professor Larson:
[T]he implied prohibition test ... permits us to draw a
consistent pattern of principle uniting the rules of unreasonableness and
prohibited method. We first divide all activities into operating acts and
incidental acts. As to operating acts, that is, acts in direct performance of
the precise tasks assigned to the claimant, we find that method—whether
unreasonable, impliedly prohibited, or even expressly prohibited—is immaterial.
As to incidental acts and situations, including ... personal comfort, ... we
find that a single test will also suffice: they are outside the course of
employment if they are expressly or impliedly forbidden.
Larson’s
Workers’ Compensation Law, §21.08(4)(d).
Thus, it’s clear that an employee’s failure to follow an employer’s
orders or safety policies may render an injury non-work-related and, therefore,
non-compensable. However, we find the uncontested facts of this case establish
a scenario which is qualitatively different than that in Chesser, Schrecker,
and Phillips. Carter was not in a
prohibited area when his injury occurred, as in Chesser, or off work
premises during a personal comfort break, as in Schrecker. He had not been prohibited from reporting to
work, as in Phillips. Nor had
Carter deviated from his work duties on a personal mission as in Ratliff
and Mosley.
Carter was on his employer’s premises at the time of the injury. Certainly, shoplifters are a hazard incident
to employment at Circle K: the simple fact it has numerous policies in place to
guide its employees’ interactions with lawbreakers establishes Circle K
recognized the hazard. Furthermore,
Carter’s supervisor, Jay Jones, acknowledged shoplifters are a recurrent aspect
of employment at Circle K. He admitted
his cashiers would routinely identify shoplifters, confront them verbally,
write down license plate numbers, and call police. Thus, Carter was at his place of work,
encountering a known hazard peculiar to his employment. He failed to follow the directives of his
employer in dealing with this known hazard, and an injury resulted from this
failure. This behavior constitutes a
violation of a reasonable order of his employer within the meaning of KRS
342.165, but it does not constitute a substantial deviation from the scope of
his employment. See Warrior Coal Co., LLC v. Stroud,
151 S.W.3d 29, 31 (Ky. 2004) (“Although a worker's negligence may result in
decreased benefits under KRS 342.165, it is not a factor in determining whether
an injury is work-related.”).
Accordingly,
the April 14, 2015 Opinion and Order rendered by
Hon. Steven G. Bolton, Administrative Law Judge, is hereby REVERSED and this claim is REMANDED
for further proceedings consistent with this Opinion.
STIVERS, MEMBER, CONCURS.
ALVEY, CHAIRMAN, DISSENTS AND FURNISHES
A SEPARATE OPINION.
ALVEY,
CHAIRMAN. I respectfully
dissent. Carter was not working at the
time of the accident, and acted outside the policies set forth by Circle
K. The mere fact he was at the worksite
eating his dinner prior to going to work does not make this claim
compensable. Unlike the claimant in U.S.
Bank Home Mortgage v. Schrecker, 455 S.W.3d 382 (Ky. 2015), in which the
Kentucky Supreme Court held the claim noncompensable, here Carter was not
working at the time of the incident.
Even if he were, his actions were clearly outside the scope of his
employment with Circle K, and in accordance with the holdings in Ratliff v.
Epling, 401 S.W. 2d 43 (Ky. 1966); Whitehouse v. R.R. Dawson Bridge Company,
382 S.W.2d 77 (1964); and Phillips v. Jenmar, Inc., 998 S.W. 2d 77 (Ky.
1999), the ALJ did not err in dismissing this case, and his decision should be
Affirmed.
COUNSEL
FOR PETITIONER:
HON SCOTT C JUSTICE
455 S FOURTH ST #1250
LOUISVILLE, KY 40202
COUNSEL
FOR RESPONDENT:
JUDSON DEVLIN
1315 HERR LN #210
LOUISVILLE, KY 40222
ADMINISTRATIVE
LAW JUDGE:
HON. STEVEN G BOLTON
PREVENTION PARK
657 CHAMBERLIN AVE
FRANKFORT, KY 40601
