Krushwitz v. McDonald's Restaurants of Oregon, Inc.
919 P.2d 465, 1996 Ore. LEXIS 63, 323 Or. 520 (1996)
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Rule of Law:
Oregon's Workers' Compensation Law's exclusivity provisions do not bar a wrongful death action if the employee's injury does not qualify as a 'compensable injury' under the 'arising out of and in the course of employment' test, particularly when exceptions to the 'going and coming' rule are not met.
Facts:
- Matthew Theurer, an 18-year-old high school student, worked part-time at a restaurant owned by McDonald’s Restaurants of Oregon, Inc.
- On April 4, 1988, Theurer worked his normal after-school shift from 3:30 p.m. to 8:00 p.m.
- Theurer then volunteered to work an additional shift, returning to McDonald’s at midnight and working until 8:21 a.m. on April 5, 1988.
- Upon completing that second shift, Theurer told his supervisor that he was too tired to work his upcoming afternoon shift and asked that another employee replace him.
- Theurer then left the restaurant to drive home.
- While driving home, Theurer fell asleep at the wheel, causing his automobile to cross the centerline on the highway and strike another automobile head-on.
- Theurer was killed in the collision.
Procedural Posture:
- Theurer's mother, as personal representative of his estate (plaintiff), filed a wrongful death action against McDonald's Restaurants of Oregon, Inc. (defendant) in circuit court, alleging negligence.
- Defendant filed several motions under ORCP 21 to dismiss the complaint.
- The circuit court dismissed plaintiff's initial claims for negligence and statutory liability for failure to state a claim.
- Plaintiff then filed an amended complaint.
- Defendant again moved to dismiss, arguing the Workers' Compensation Law provided an exclusive remedy because Theurer's death was a "compensable injury" under the "special errand" exception.
- The circuit court agreed with defendant, granted the motion to dismiss, and entered judgment against plaintiff.
- Plaintiff appealed to the Court of Appeals, arguing Theurer's death was not a compensable injury and the exclusivity provisions did not apply; she also raised state constitutional claims.
- The Court of Appeals determined Theurer had suffered a "compensable injury" under the "greater hazard" exception to the "going and coming" rule and affirmed the dismissal.
- Plaintiff petitioned the Supreme Court of Oregon for review.
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Issue:
1. Does an employee who dies in an automobile accident while driving home from work, after working an extended shift resulting in fatigue, suffer a 'compensable injury' as defined by the Workers' Compensation Law? 2. Do the exclusivity provisions of the Workers' Compensation Law preclude a wrongful death action in such circumstances?
Opinions:
Majority - Carson, C. J.
No, an employee who dies in an automobile accident while driving home from work, even if fatigued from extended shifts, does not suffer a "compensable injury" under the Workers' Compensation Law, and thus, the exclusivity provisions of that law do not preclude a wrongful death action. The court began by examining whether Theurer's death was a "compensable injury" under ORS 656.005(7)(a), which requires an accidental injury "arising out of and in the course of employment." While acknowledging that the "arising out of" prong (causal link due to alleged negligence in scheduling) was met, the court focused on the "in the course of" prong, which demands that the time, place, and circumstances of the injury connect it to employment. The court applied the "going and coming" rule, which generally holds that injuries sustained during an employee's commute are not compensable because the employee is not performing services for the employer. The court rejected two exceptions argued by the defendant and the Court of Appeals. The "special errand" exception applies only if the employee was furthering the employer's business or the employer had a right to control the employee's travel. Here, Theurer had completed his shift and was not under defendant's control. The court declined to expand this exception to cover work-related fatigue coupled with attending school, noting its traditionally narrow approach. The "greater hazard" exception applies when employment requires using an entrance/exit exposing the employee to greater hazards than the public on a sole means of ingress/egress. Theurer's accident did not occur on such a route, nor was fatigue the type of specific hazard (like dangerous traffic) this exception addresses. Furthermore, the court clarified that even under the flexible "work-connection" test, both the "arising out of" and "in the course of" elements must be satisfied to some degree. While the "arising out of" factors were strong due to alleged negligence, the "in the course of" requirement was not satisfied at all because the death fell squarely within the going and coming rule. Since Theurer did not suffer a compensable injury, the court concluded that the exclusivity provisions of ORS 656.018, which only apply to injuries "arising out of and in the course of employment," do not bar the plaintiff's wrongful death action.
Analysis:
This case significantly clarifies the strict application of the "going and coming" rule and its exceptions within Oregon's workers' compensation framework. By refusing to expand the "special errand" or "greater hazard" exceptions to encompass fatigue-related commute injuries, the court reinforced the narrow circumstances under which an employee's journey to or from work is considered "in the course of employment." Moreover, it clarified that even with the "work-connection" test, both prongs ("arising out of" and "in the course of") must be present to some degree, preventing a strong showing in one area from entirely compensating for a complete lack in the other. This decision preserves a potential avenue for common law negligence claims against employers when an employee's injury falls outside the scope of workers' compensation coverage, especially for off-premises accidents during commutes.
