The full case caption appears at the
end of this opinion. OPINION This workers’ compensation appeal was referred to the Special Workers’ CompensationAppeals Panel of the Supreme Court pursuant to Tenn. Code Ann. � 50-6-225(e)(3) for hearing andreporting to the Supreme Court findings of fact and conclusions of law. Upon reference, the Panel concluded that the trial court’s grant of summary judgment to theemployer was error. We granted the employer’s motion for review filed pursuant to Tenn. CodeAnn. � 50-6-225(e)(5). Tennessee Code Annotated requires that for death to be compensable under workers’compensation laws, it must have happened by accident arising out of and occurring in the course ofemployment. Tenn. Code Ann. � 50-6-103(a)(1999). Here, the employee drowned in the pool ofthe hotel in which he had lodged while working at an out-of-state job site. Thus, the sole issue iswhether the employee’s death is compensable under the provision of the workers’ compensationstatutes. Because we conclude, for the reasons discussed herein, that because there are disputedissues of material fact as to whether the employee’s death is compensable, we vacate the trial court’sgrant of summary judgment to the employer and remand the cause for further proceedings consistentwith this opinion. Ordinarily, our review of this matter would be de novo upon the record of the trial court,accompanied by a presumption of correctness of the finding, unless the evidence preponderatesagainst the findings of the trial court. Tenn. Code Ann. � 50-6-225(e)(2)(1999). When, however,the grant of summary judgment in a workers’ compensation is appealed, the issue is not reviewablede novo. Rather, review is controlled by the standard provided for summary judgment dispositionpursuant to Tenn. R. Civ. P. 56. Thus, our review here is on the record without any presumptionthat the findings of the trial court are correct. As we stated in Carvell v. Bottoms, 900 S.W.2d 23, 26 (Tenn. 1995): The standards governing an appellate court’s review of a trial court’saction on a motion for summary judgment are well settled. Since ourinquiry involves purely a question of law, no presumption ofcorrectness attaches to the trial court’s judgment, and our task isconfined to reviewing the record to determine whether therequirements of Tenn.R.Civ.P. 56 have been met. Cowden v. SovranBank/Central South, 816 S.W.2d 741, 744 (Tenn. 1991). The standards governing the assessment of evidence in the summary judgment context arealso well established. Courts must view the evidence in the light most favorable to the non-movingparty and must also draw all reasonable inferences in favor of the non-moving party. Byrd v. Hall,847 S.W.2d 208, 210-11 (Tenn. 1993). Courts should grant summary judgment only when both thefacts and the inferences to be drawn from the facts permit a reasonable person to reach only oneconclusion. Carvell, 900 S.W.2d at 26 (citing Byrd, 847 S.W.2d at 210-11). Viewing the evidence in a light most favorable to the non-moving party (here, the employee)and drawing all reasonable inferences favorable to them, the salient facts of record show that DonaldEugene King was employed by Glen Hatchett Carpet Services, a Memphis-based business. King,with other employees, had been sent to Rutland, Vermont, by their employer to lay carpet at aRutland motel. While in Rutland, King and the other employees were lodged at the Days Inn at theemployer’s expense. While off-duty, at approximately 10 p.m. on June 23, 1996, King drowned inthe Days Inn pool. The record does not include other details surrounding his death.The plaintiffs sought funeral expenses and benefits for King’s minor son. The employer fileda motion for summary judgment in which it asserted that King’s death neither arose out of noroccurred in the course of his employment and that, therefore, his death was not compensable underthe workers’ compensation statutes. The trial court agreed and entered summary judgment in favorof the employer. To resolve this issue, we must examine the circumstances surrounding King’s employmentstatus and his death.
[FOOTNOTE 1] Employees working away from the regular job site are usually described as”traveling employees,” and the crucial question is whether, under the circumstances, the death aroseout of and in the course of the employment. While not a matter of first impression, a review ofTennessee cases produces no clear rule.An observation by Lord Wrenbury in Herbert v. Foxx & Co., Ltd., is appropriate here. Hewrote: The few and seemingly simple words “arising out of and in the courseof the employment” have been the fruitful (or fruitless) source of amass of decisions turning upon nice distinctions and supported byrefinements so subtle as to leave the mind of the reader in a maze ofconfusion. From their number counsel can, in most cases, cite whatseems to be an authority for resolving in his favour, on whicheverside he may be, the question in dispute. [1916] 1 App. Cas. 405, 419 (appeal taken from Yorkshire). Commenting on Lord Wrenbury’s view, Justice Hamilton S. Burnett, in Jackson v. Clark &Fay, Inc., stated in dissent that: “[w]e think that this statement is without a doubt one of the mosttruthful that can be found anywhere in the law books. Anyone who makes any search and study ofthe decisions will find the statement true without question.” 197 Tenn. 135, 148, 270 S.W.2d, 389,395 (1954) (Burnett, J., dissenting). In the following cases, the Court found that the traveling employee’s injury or death aroseout of and in the course of the employment: Pool v. Metric Constructors Inc., 681 S.W.2d 543(Tenn. 1984) (Tennessee employee injured in vehicle accident returning home after having workedin Mississippi); Watson v. United States Fire Ins. Co., 577 S.W.2d 668 (Tenn. 1979) (EastTennessee-based employee injured in vehicle accident en route to training program in WestTennessee); West Tennessee Nix-A-Mite Sys., Inc. v. Funderburk, 208 Tenn. 381, 346 S.W.2d 250(1961) (employee killed in vehicle accident after having deviated from usual route for personalreasons); Gregory v. Porter, 204 Tenn. 582, 322 S.W.2d 591 (1959) (employee killed in vehicleaccident returning home from out-of-town trip on employer’s business); Carter v. Hodges, 175 Tenn.96, 132 S.W.2d 211 (1939) (Tennessee employee killed in hotel fire in Georgia while on businessof employer); Employer’s Liability Assurance Corp. v. Warren, 172 Tenn. 403, 112 S.W.2d 837(1938) (employee’s fall from hotel’s second-story porch caused fatal injuries).In contrast, the Court found in the following cases that the traveling employee’s injury ordeath did not arise out of and in the course of the employment: Isabell v. Ren Corp., No. 01S01-9301-CV-00003, 1993 WL 835552, at *1 (Tenn. Aug. 26, 1993) (Tennessee employee working inFlorida injured knee when she slipped and fell leaving restaurant after dinner); Smith v. Royal GlobeIns. Co., Inc., 551 S.W.2d 679 (Tenn. 1977) (Tennessee employee injured in vehicle accidentreturning home from Virginia job site); Knox v. Batson, 217 Tenn. 620, 399 S.W.2d 765 (1966)(employee working away from home killed by “lethal gas” in motel room); Timmerman v. KerrGlass Mfg. Co., 203 Tenn. 543, 314 S.W.2d 31 (1958) (Tennessee employee killed on weekend tripen route from Kentucky job site to Memphis); Jackson v. Clark & Fay, Inc., 197 Tenn. 135, 270S.W.2d 389 (1954) (Tennessee employee working in Arkansas killed by tornado while riding inemployer’s truck from job site to motel); Underwood Typewriter Co. v. Sullivan, 196 Tenn. 238,265 S.W.2d 549 (Tenn. 1954) (Tennessee employee training in Oklahoma killed in vehicle accidenton day off); Lumbermen’s Mut. Cas. Co. v. Dedmon, 196 Tenn. 94, 264 S.W.2d 567 (1954)(Knoxville-based employee, who had finished a customer visit in Morristown, killed as he crossedstreet after leaving a fishing tackle shop); Thornton v. RCA Serv., Inc., Co., 188 Tenn. 644, 221S.W.2d 954 (1949) (employee stopped for lunch at highway restaurant between Norris and Knoxvilleand was killed by “a stranger who was insane, or drunk ‘or otherwise irresponsible.’”). In other jurisdictions, courts tend to look more closely at the nature of the activity involved.Thus, while approving the use of an all-terrain vehicle as reasonable recreational activity for atraveling employee, the court rejected compensability where the vehicle had been operatedrecklessly. See, e.g,. Jensen v. Indus. Comm’n, 711 N.E.2d 1129 (Ill. App. Ct. 1999), appeal denied720 N.E.2d 1093 (Ill. 1999). Similarly, depending upon the particular facts, the employee’s activitywas held to be a “distinct departure” or “deviation” from the employment, thereby relieving theemployer of liability. See, e.g., Silver Eng’g Works, Inc. v. Simmons, 505 P.2d 966 (Colo. 1973)(en banc) (employee’s trip to beach where he drowned was deviation from his employment); Volkv. Int’l Harvester Co., 106 N.W.2d 649 (Iowa 1960) (employee’s trip to neighboring town for socialvisit constituted deviation from employment); Buczynski v. Indus. Comm’n of Utah, 934 P.2d 1169(Utah Ct. App. 1997) (employee’s weekend social visit to town 150 miles from convention site priorto convention’s start was “personal diversion” and injury in hotel hot tub was not compensable);Carr v. Workmens’ Compensation Appeal Bd., 671 A.2d 780 (Pa. Commw. Ct. 1995) (employee’s35-mile trip from the work site to Boston to go sightseeing and drinking was personal trip and notpart of employment) . As stated in 2 Arthur Larson & Les K. Larson, Arthur Larson’s Workers’ CompensationLaws, � 25.00 (1998), the majority rule is that “[a]n employee whose work entails travel away fromthe employer’s premises is generally considered to be within the course of his or her employmentcontinuously during the trip, except when there is a distinct departure on a personal errand.” We think the majority rule furnishes the proper analysis for determining the compensabilityof injury or death of traveling employees. Therefore, in order to clarify the law in this stateregarding traveling employees, we now adopt the majority rule and hold that a traveling employeeis generally considered to be in the course of his or her employment continuously during the durationof the entire trip, except when there is a distinct departure on a personal errand. Thus, under the rulewe today adopt, the injury or death of a traveling employee occurring while reasonably engaged ina reasonable recreational or social activity arises out of and in the course of the employment.
[FOOTNOTE 2] As we stated in Orman v. Williams Sonoma, Inc., “an injury arises out of and is in the courseand scope of employment if it has a rational connection to the work and occurs while the employeeis engaged in the duties of his employment.” 803 S.W.2d 672, 676 (Tenn. 1991 (citation omitted).Because an employee who travels on the business of the employer is considered to be within thecourse of his or her employment continuously during the trip, reasonable recreational activitiesproperly undertaken by the employee during the trip are rationally connected to the work.
[FOOTNOTE 3] Thus,injury or death occurring during a reasonable recreational activity arises out of and in the course ofthe employment.Under the rule adopted above and in light of the facts in the record, we conclude that the trialcourt erred in granting summary judgment to the employer. Accordingly, we reverse the trial court’sjudgment and remand the case for further proceedings consistent with this opinion.
[FOOTNOTE 4] The costs are taxed to the defendants, Glen Hatchett d/b/a Hatchett Brothers and Associatesof Fidelity & Casualty of New York. :::FOOTNOTES:::
FN1Obviously, if an employee was working at an actual job site at the time of his or her injuryor death, the question of whether the injury or death “arose out of and in the course of theemployment” would be elementary. It is for this reason that “traveling employee” cases typicallyinvolve injury or death occurring at a place other than at the actual job site.
FN2We decline to adopt the “reasonable and foreseeable” standard used in some jurisdictions.”Foreseeability” is typically a tort law concept; as we have previously stated, “[c]oncepts of’proximate cause’ or ‘foreseeability’ as utilized in the law of torts do not necessarily govern or definecoverage under the workers’ compensation statutes.” Jordan v. United Methodist Urban Ministries,Inc., 740 S.W.2d 411 (Tenn. 1987).
FN3But cf. Tucker v. Acme Boot Co., Inc., 856 S.W.2d 703 (Tenn. 1993); Jordan, 740 S.W.2dat 412. While Tucker and Jordan also involved recreational activities of employees, those casespertain to non-traveling employees and are inapposite. Our holding in the pending case is notintended to supplant or modify the principles applied to non-traveling employees under Tucker.
FN4Our holding that the trial court erred in granting summary judgment should not beinterpreted as a factual finding by this Court that the death of King arose out of and in the course ofhis employment. We express no opinion as to the ultimate result to be reached in this case afterremand.
McCann v. Hatchett In the Supreme Court of Tennessee at Jackson Yvonne McCann, et al. v. Glen Hatchett, et al. No. W1998-00808-SC-WCM-CV Direct Appeal from the Chancery Court for Shelby County, No. 109237-3 D. J. Alissandratos, Chancellor Decided: May 8, 2000 Before: BIRCH, J., ANDERSON, C.J., and DROWOTA and BARKER, JJ. Counsel: Edwin C. Lenow, Memphis, Tennessee, for the plaintiffs/appellants, Yvonne McCann, asgrandmother and next of friend of Auron D. Hart, and Haywood Vanarsdale, uncle of DonaldEugene King. Carl Wyatt, Memphis, Tennessee, for the defendants/appellees, Glen Hatchett d/b/a HatchettBrothers and Associates of Fidelity & Casualty of New York.
