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Kawakami v. City and County of Honolulu12/24/2002
nsation Law.
An employee who has the right to have his homeward journey covered cannot, so to speak, put that right in the bank indefinitely and cash it at whatever future time suits his convenience. The sheer amount of time elapsed is bound to influence courts in these cases. . . . Other factors . . . include the amount of risk added by the personal activities, such as drinking, the nature of the job , and the extent to which there may be found an identifiable moment in time at which work duties end and the clock begins to run on the deviation. Larson's ยง 17.02 (footnotes omitted) (emphasis added).
We agree with the apparent majority view, which precludes compensability of injuries sustained by employees who deviate so significantly from their work that it constitutes an abandonment of their duties.
In determining whether a deviation is substantial, courts have looked at the following factors: "(1) the amount of time taken up by the deviation; (2) whether the deviation increases the risk of injury ; (3) the extent of the deviation in terms of geography; and (4) the degree to which the deviation caused the injury." Ogden, 723 P.2d at 948; see also Calloway v. State Workmen's Compensation Commissioner, 268 S.E.2d 132, 135 (W. Va. 1980) (stating that the longer the deviation or the greater it varies geographically from the normal business route, the more likely that it will be characterized as major);Kodiak, 777 P.2d at 1149 (setting forth a balancing test considering the geographic and durational magnitude of the deviation, past toleration of similar deviations, and any risks created by the deviation).
Employing this test, the Board found that Kawakami substantially deviated from his work when he went to his girlfriend's house and had dinner, had a few beers, and took a nap. The Board noted that Kawakami "had a fixed work schedule and a fixed workplace, was, at the time of the accident, outside the boundaries of his employment in terms of time and space." This seven-hour detour was found to be substantial, taking Kawakami out of the scope of his employment and precluding him from re-entering the scope and course of his employment over seven hours later. Moreover, "it was the deviation and not work that brought [Kawakami] to Waianae and to the site where the accident occurred." We hold that the Board's analysis is consistent with the majority view regarding personal deviations, and therefore, we affirm the Board's decision.
Kawakami argues that the foregoing analysis is not consistent with our previous decisions in Cordon v. Paschoal's Ltd., 52 Haw. 242, 473 P.2d 561 (1970), and Chung, 63 Haw. 642, 636 P.2d 721. Cordon was an employee of a rental car agency on the island of Maui and was injured while driving one of the company's rental cars from the Lahaina office to the Kahului office. It was the agency's regular practice to instruct Cordon, whenever a smaller car was available in Lahaina, to drive it to Kahului (which was also the town in which he lived) and to exchange it for a larger car to be driven back to Lahaina the next day. The reason for this arrangement was that small cars were easier to rent in the Kahului area. On the day of the accident, Cordon took a Datsun, one of the small cars on the lot, and went out to dinner and several nightclubs before taking the car home to Kahului. Cordon was discovered unconscious the next morning next to the Datsun and later died from his injuries. This court held that Cordon's injuries were compensable because it was clear that he was injured while performing his duty of driving the car to Kahului to be exchanged.
Kawakami argues that the present case should be decided based on our holding in Cord
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