 |
 |
to fill out a simple form to connect to Personal Injury Lawyers in your area.
|
|
|
|
|
Roman v. Sears4/27/2005
ed in the accident on his way home from the Sears parking lot. Furthermore, the undisputed evidence established no basis for applying the special errand exception to the going and coming rule. As explained in C. L. Pharris, supra: " request or invitation by the employer, either express or implied, is a prerequisite to application of the special errand exception, and in every case cited by applicant the court found, noted and relied on such a request or invitation on the part of the employer. [Citations.] . . . "`The special request for the unusual service is the decisive factor . . . ."' [Citation.]" (138 Cal.App.3d at pp. 591-592.)
In C. L. Pharris, supra, the court annulled an order providing workers' compensation benefits to an employee injured in an automobile accident while returning home from apprenticeship classes. On the basis of undisputed evidence showing that the employer neither required the employee to take such classes nor facilitated the employee's class attendance, the court held inapplicable the special errand exception to the going and coming rule: "For the special errand exception to the going and coming rule to apply, the employer must have requested or invited the employee to embark upon the errand or mission. There was no such request or invitation by the employer in this case, and the normal going and coming rule applies." (138 Cal.App.3d at p. 594.) The court rejected the employee's argument that the fact the employer benefited from the employee's class attendance was sufficient to invoke the exception, reasoning that " f employer benefit in and of itself were sufficient to invoke the special errand exception, there would be no need for the additional requirement, universally recognized by the cases, that the special activity have been undertaken at the request or invitation of the employer." (Id. at p. 593.)
Likewise, the undisputed evidence here established that no one at Sears ever asked Demos to come to work on the day of the accident. Rather, Demos made the unilateral decision to come into work on his day off. Though Sears did not require Demos to work on his days off, the evidence demonstrated that Sears obtained some benefit from Demos's work ethic. We agree with the court in C. L. Pharris, supra, however, that "it is not every incidental employer benefit that will take the case out of the going and coming rule." (138 Cal.App.3d at p. 592.) Moreover, the evidence established that the incidental benefit to Sears of Demos's traveling home to change clothes was tenuous, at best, given both evidence that Sears' dress code applied only to on-duty employees and Demos's testimony that his clothing choice was motivated by a desire to make a favorable impression to advance his own career. In the absence of any request by Sears for Demos to come into work on his day off or to change his clothes, we cannot conclude that the incidental benefit conferred on Sears by Demos's decision to undertake such actions was sufficient to invoke the special errand exception. (See C. L. Pharris, supra, at p. 593 ["It would be anomalous to hold that an employee injured while traveling home from an apprentice class is, on account of the benefit to the employer, entitled to workers' compensation benefits, whereas if he were injured while traveling to or from work for the performance of the principal duties of his employment, the injury would be non-compensable under the going and coming rule"].)
Evidence offered by appellants that Demos "felt pressure" from Sears to come in on his day off does not alter our decision. Rather, we are guided by several cases that have affirmed summary judgments for employers, holding that the special errand exception to the going and coming rule applies
Page 1 2 3 4 5 6 7 California Personal Injury Attorneys
Personal Injury Lawyers
|
| |
to fill out a simple form to connect to Personal Injury Lawyers in your area.
|
|