B & B Cash Grocery Stores v. Wortman
431 So. 2d 171 (1983)
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Rule of Law:
An injury sustained by an employee during a temporary and insubstantial deviation for personal comfort, necessitated by work conditions and implicitly tolerated by the employer, can arise out of and in the course of employment for workers' compensation purposes.
Facts:
- John Wortman was employed by B & B Cash Grocery Stores as a member of their ground maintenance crew, responsible for cleaning and mowing various sites.
- The nature of Wortman's work was hot and dirty, with minimal facilities available for washing off at the job sites.
- It was a regular and known practice among the ground maintenance crew, and known to their foreman and employer owners, for crew members to cool off by swimming between jobs at public facilities and private homes, sometimes using the owners' pools with permission.
- On June 15, 1982, a very hot day, Wortman and two co-workers were traveling between job sites and decided to stop at a co-worker's parents' home to cool off and wash in the Alafia River.
- The stop at the Alafia River was approximately one and a half miles off their direct route between work locations.
- Wortman dove into the Alafia River and struck his head on a rock, resulting in a broken neck and quadriplegia.
- The crew was entitled to a fifteen-minute break in both the morning and afternoon, and they had not yet taken their afternoon break when Wortman's accident occurred.
- At least one co-worker testified that rinsing off between jobs helped improve his productivity.
Procedural Posture:
- John Wortman filed a claim for workers' compensation benefits following his injury.
- A deputy commissioner issued an order determining that Wortman's injury arose out of and was in the course and scope of his employment, and awarded workers' compensation.
- B & B Cash Grocery Stores and Aetna Casualty & Surety Company (Employer/Carrier), as appellants, appealed the deputy commissioner's award to the District Court of Appeal of Florida, First District.
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Issue:
Does an employee's injury sustained during a temporary deviation for personal comfort, such as swimming to cool off from hot and dirty work conditions, arise out of and in the course of employment if the deviation is insubstantial, known to the employer, and incidentally beneficial to employee productivity?
Opinions:
Majority - Larry G. Smith, Judge
Yes, John Wortman's injury did arise out of and in the course of his employment. The court concluded that the swimming excursion was an insubstantial deviation directly resulting from the need to wash off, caused by Wortman's work conditions. Applying the standard from Hill v. Gregg, Gibson & Gregg, Inc., the court found the injury occurred while Wortman was on the employer's payroll, engaged in a common practice with implied supervisory consent, which activity increased productivity and was incidentally beneficial to the employer, similar to Evans v. Food Fair Stores, Inc. The court reiterated that attending to personal comfort does not defeat compensability, referencing Baker v. Orange County Board of County Commissioners and Cunningham v. Scotty Home Builders, where deviations for personal needs were found compensable due to contributing employment conditions or implied tolerance. The court distinguished Wortman's action from substantial horseplay, as in City of Miami v. Granlund, instead likening it to the insubstantial deviation in Times Publishing Company v. Walters, noting that diving into the river was a momentary deviation without obvious danger, was impliedly tolerated, and was reasonably foreseeable.
Dissenting - Thompson, Judge
No, John Wortman's injury did not arise out of and in the course of his employment. The dissenting opinion asserted there was no causal connection between Wortman diving into the Alafia River and his employment, nor did it originate in any risk incidental to or connected with employment, or flow as a natural consequence. The injury, in the dissenter's view, occurred while Wortman was deviating from his employment for his own personal comfort and benefit, and not while fulfilling employment duties, performing an act for the employer's benefit, or engaged in anything incidental to employment. Therefore, the dissenting judge would have reversed the deputy commissioner's order and denied the claim.
Analysis:
This case significantly clarifies the application of the "arising out of and in the course of employment" standard in workers' compensation claims, particularly regarding personal comfort deviations. It reinforces the principle that minor, temporary deviations for personal comfort, especially when necessitated by work conditions and implicitly or explicitly tolerated by the employer, can be considered within the scope of employment. The decision provides guidance for future cases by outlining factors (extent and seriousness of deviation, employer tolerance, foreseeability) that courts should consider when evaluating such deviations, potentially encouraging employers to establish clearer guidelines for breaks and off-site activities if they wish to limit liability for these types of injuries.
