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									               CHAPTER 3

       SCOPE OF EMPLOYMENT—
TO AND FROM AND OFF PREMISES INJURIES


           Annemarie Pantazis
        Thompson & Pantazis, PLLC
         Charlotte, North Carolina
               704-566-6044




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I.     INTRODUCTION

       The “going and coming” rule has its roots in the common law and states that
an injury occurring while an employee is traveling to and from work is not
compensable. Royster v. Culp, 343 N.C. 279, 281, 470 S.E.2d 30, 31 (1996). An
injury must arise out of and in the course of employment in order to be
compensable under the North Carolina Workers‟ Compensation Act. N.C. Gen.
Stat. § 97-2(6)(1991). The two requirements are separate and distinct, and both
must be satisfied in order to render an injury compensable. The term “arising out
of” refers to the origin or causal connection of the injury to the employment while
the phrase “in the course of” refers to the time, place and circumstances under
which the injury by accident occurs. Barham v. Food World, Inc., 300 N.C. 239,
332, 266 S.E.2d 676, 678 (1980). Generally, the “going and coming” rule provides
that an injury occurring while an employee travels to and from work does not
satisfy the “in course of employment” prong of § 97-2 and is therefore not
compensable. Royster, 343 N.C. at 281, 470 S.E.2d at 31.

       There are, however, three categories of situations where the North Carolina
courts have refused to apply the going and coming rule as a bar to recovery. The
courts have deemed an injury to be “in the course of employment” when 1) the
injury occurs on the employer‟s premises; 2) the injury occurs during the
employee‟s performance of a “special errand” for the employer; or 3) the employer
either arranges transportation pursuant to an employment contract or the employer
compensates the employee for his transportation costs to and from work. This
article will explore the various situations in which the going and coming rule has
been applied and how the exceptions to the rule have developed over the years.1




1
  Please note that this article will not explore the “personal comfort doctrine” which is closely
associated with the going and coming rule and its interpretations of “arising out of and in the
course and scope of employment.” For a discussion of the personal comfort doctrine, see Lewis
v. Orkand Corp., 2001 WL 1602719 (N.C. App. 2001).

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II.   APPLICATIONS OF THE GOING AND COMING RULE

      A.     The Rationale Behind the Rule

       The going and coming rule stems from the rationale that the risk of injury
while traveling to and from work is one common to the public at large. Creel v.
Town of Dover, 486 S.E.2d 478, 126 N.C. App. 547 (1997). Nevertheless, the
courts have recognized that employment begins a reasonable time before actual
work begins, continues for a reasonable time after work ends, and includes
intervals during the workday for rest and refreshment. Harless v. Flynn, 1 N.C.
App. 448, 162 S.E.2d 47 (1968). Oftentimes, litigation results from injuries that
occur during these gray areas of employment.

        The most common applications of the going and coming rule involve
situations where employees are injured either on the public highways while driving
their own vehicle to and from work or on a parking lot not owned by their
employer. The public highway cases focus on the mode of transportation and the
reason for traveling. The parking lot cases focus on who is responsible for the
ownership, control, and maintenance of the parking lot. In order for the going and
coming rule to act as a bar to recovery, none of the three exceptions to the rule can
apply. In other words, if the injury occurs on a parking lot owned by the employer
or if the injury occurs on the public highways while the employee is on a special
errand for the employer, the injury will be compensable. These scope of these
exceptions will be discussed in more detail in Section III.

      B.     Public Highway Cases

             1.    Wright v. Wake County Public Schools, 103 N.C. App. 282, 405
                   S.E.2d 228 (1991)

       The most clear example of a claim being barred by the going and coming
rule is Wright v. Wake County Public Schools, 103 N.C. App. 282, 405 S.E.2d 228
(1991), in which the Court of Appeals held that a part-time school bus driver, who
was involved in a car accident immediately after leaving a mandatory school
transportation meeting, was not injured while performing a duty arising out of or
during the course of his employment. Plaintiff‟s duties included driving a school
bus and attending school transportation meetings. On the morning of November
30, 1988, plaintiff drove his school bus on his designated early morning route.
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Later that morning, plaintiff drove his own car to a school transportation meeting,
for which the bus drivers were paid a pre-determined amount for each meeting.
Plaintiff‟s supervisor encouraged the bus drivers to drive their own cars to the
meeting in order to limit the number of school buses in the parking lot.

       After the meeting, plaintiff left the school grounds between 10:00 and 10:30
a.m. in his personal car and was immediately involved in an automobile accident
on a public street. Plaintiff was not required to report back to the school until 2:00-
2:15 p.m. and was on his own personal business after leaving the morning meeting.
The Commission held that because plaintiff was going about his personal business
at the time of the accident, he did not sustain an injury by accident arising out of
and in the course of his employment. Wright, 103 N.C. App. at 283, 405 S.E.2d at
229. In his appeal, plaintiff argued that because his presence was required at the
meeting and because he was directed to drive his own car to the meeting, the
accident occurred in the course of his employment. The Court of Appeals rejected
this argument and held that since “being required to drive to a meeting is no
different from being required to drive one‟s car to work,” plaintiff is barred from
recovery under the Workers‟ Compensation Act. Id. at 284, 405 S.E.2d at 229.

          a. Schmoyer v. Church of Jesus Christ of Latter Day Saints, 81
                  N.C. App. 140, 343 S.E.2d 551, cert. denied, 318 N.C. 417, 349
                  S.E.2d 600 (1986).

       This case provides another example of a straightforward application of the
going and coming rule. The plaintiff‟s deceased was employed as a custodian for a
church. One of his duties included opening the church in the morning. His regular
working hours were from 8:00 a.m to 4:00 p.m. On the day he was killed, the
employee closed the church around 5:00 p.m. then went to visit his fiancée who
lived three miles from the church. After visiting with his fiancée until 11:00 p.m.,
he left her residence to spend the night at his parents‟ home. When the employee
arrived at his parents‟ home, he received a call from his fiancée who told him she
was distraught. The employee offered to return to her home and console her,
saying that afterwards he would probably spend the night at the church because a
snowstorm was predicted for the night. Earlier in the day, the employee had told a
co-worker that if it snowed, he would probably spend the night at the church so he
could open it in the morning. The employee was killed en route from his parents‟
home to his fiancee‟s home. Schmoyer, 81 N.C. App. at 141, 343 S.E.2d at 552.

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       The plaintiff argued that since the employee had intended to return to the
church so he would be at work despite the snowstorm, he was on a special errand
for his employer. The court rejected this argument stating that although the
accident in which he was killed was at a place on the usual route from his parent‟s
home to the church, the evidence showed that the employee was at most exercising
his discretion to go to the church in advance of the time he was supposed to be
there. Id. at 143, 343 S.E.2d at 553. The court stated by leaving to go to the
church the night before he was supposed to work, the decedent “accomplished no
other purpose but to help ensure his timely arrival at his job. We fail to see how
such circumstances differ in any meaningful way from the exercise of the
judgment of any employee to depart for his work at an earlier time than usual in
order to avoid possible late arrival associated with inclement weather.” Id. Since
the employer would have no more benefited from the decedent‟s late night
endeavor than it would have from his usual enterprise of getting himself to work,
the court found that the going and coming rule barred the claim.

                  b. Stanley v. Burns Int’l Sec. Co., I.C. No. 002238 (D.C. 6/25/01)

       Deputy Commissioner Garner recently applied the going in coming rule in a
case involving a security guard. After Hurricane Floyd, there was flooding in the
area making it unsafe for plaintiff‟s deceased to travel to work. The employee
called into work asking if she was required to fill her shift as a security guard. Her
boss told her it was unnecessary to come to work because there was a crew who
could cover the site until the water receded and the roads were safer. After a couple
of days, the employee was able to make her way to work and did, in fact, work for
four days at eight hours per day. On her fifth day back at work following the
hurricane, the employee left the worksite after her shift. On her way home from
work, she was involved in an automobile accident that caused her death. The
evidence showed that the employee was in her own car and she was not paid for
travel time. Plaintiff argued that the employee was required to come to work
despite the flooding or else risk losing her job. The Deputy Commissioner rejected
this argument and stated that none of the exceptions to the going and coming rule
applied. Since the claim did not arise out of and in the course of the employee‟s
employment, the claim was not compensable.

             4.      Bell v. Conetoe Volunteer Fire Dept., I.C. No. 532640 (F.C.
                     4/21/97)

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       The Full Commission again applied the Wright holding in Bell v. Conetoe
Volunteer Fire Dept. Plaintiff was the president of the volunteer fire department
who was injured in a motorcycle accident after leaving a meeting at the fire house.
Plaintiff‟s duties included fighting fires and presiding over regularly scheduled
monthly meetings at the fire station. On April 18, 1995, plaintiff had just finished
presiding over one of the regularly scheduled monthly meetings. All members of
the volunteer fire department were required to attend meeting. After the meeting,
plaintiff left the fire station in order to return home. Plaintiff drove his motorcycle
approximately 100 yards before losing control on a curve in the public road.
Although plaintiff did not receive travel expenses for attending the meeting, he did
receive certification hours that went toward maintaining his fire fighting
certification. Commissioners Bolch and Mavretic held that since plaintiff was
attending his personal business after leaving a work-related function, the going and
coming rule prevented his recovery. Commissioner Ballance dissented on the
basis of the special errand exception and was of the opinion that N.C. Gen. Stat. §
143-166, et seq., should be extended to provide benefits for those injured as well as
killed while performing a hazardous public service.

             5.     Mullis v. AMP, Inc., I.C. No. 349374 (F.C. 2/20/96)

       The Wright case has been relied upon in at least two Full Commission
decisions. In Mullis v. AMP, Inc., the plaintiff was killed in an automobile
accident on a rain slick road while reporting to a call for overtime work. Plaintiff‟s
normal shift began at 3:00 p.m. Plaintiff‟s supervisor called him at home and gave
him the opportunity to earn overtime by working the 9:00 a.m. shift. Plaintiff was
not required to accept the overtime work and if plaintiff had refused to come in, the
employer would have called the next employee on the seniority list. The Full
Commission opinion written by Commissioner Bolch relied on the Wright decision
and held the employee‟s death was not caused by an accident arising out of and in
the course of his employment. The Full Commission also held that the facts did
not support an extension of the “special errand” exception to the going and coming
rule because plaintiff was reporting to voluntary overtime work. Jones v. Trust
Co., 206 N.C. 214, 173 S.E. 595 (1934). Commissioner Ballance dissented and
was of the opinion that this case should have been categorized as a special errand
exception to the going and coming rule. The Court of Appeals affirmed the Full
Commission‟s decision in an unpublished opinion dated February 4, 1997. Mullis
v. AMP, Inc., 125 N.C. App. 419, 481 S.E.2d 700 (1997).

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      C.     Parking Lot Cases

       The majority of parking lot cases turn on whether or not the employer owns,
maintains, or controls the parking lot on which the employee is injured. In Royster
v. Culp, Inc., 343 N.C. 279, 470 S.E.2d 30 (1996), the Supreme Court adopted a
bright line test that deemed only those injuries sustained on parking lots owned,
controlled, or maintained by the employer to be compensable. This current trend
as reflected in Royster and applied in Jennings v. Backyard Burgers of Asheville,
123 N.C. App. 129, 131, 473 S.E.2d 205, 207 (1996), is to deny workers‟
compensation benefits if the employee is injured off-premises while taking a
necessary route between the place of employment and the employer‟s parking lot.

             1.    Royster v. Culp, Inc., 343 N.C. 279, 470 S.E.2d 30 (1996)

       In Royster, plaintiff was struck by a car and injured while attempting to
cross a public highway that separated his place of employment from a parking lot
which was owned and operated by his employer. The Deputy Commissioner and
the Full Commission denied benefits. In a unanimous opinion, the Court of
Appeals reversed. The Supreme Court then granted discretionary review and
reversed the Court of Appeals ruling with two justices dissenting.

       The Supreme Court stated that the premises exception to the going and
coming rule did not apply because the injury occurred on a public street. The
Court reasoned that the plaintiff was not performing any duties for the employer at
the time of the injury and was not exposed to any greater danger than the public
generally. The Court relied heavily on Barham v. Food World, 300 N.C. 329, 332,
266 S.E.2d 676, 678 (1980), in which an employee was injured when she slipped
and fell on ice in a loading zone in front of the employer‟s store in a shopping
center. The employee was walking to her work site after parking her car in the
shopping center parking lot. The employer did not own the parking lot or the
loading zone, but the employer did have access to the entire shopping center. The
Supreme Court in Barham emphasized that the employer did not own, maintain, or
provide control over the parking lot and that the employee was not performing any
duties of her employment at the time of her injury.

      In Royster, the Supreme Court noted that the plaintiff was not performing
any duties for the employer at the time of his injury. By crossing a public street,
the employee was also not exposed to any greater danger than that of the public
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generally. Justice Whichard dissented and agreed with the Court of Appeals that
the case of Hardy v. Small, 246 N.C. 581, 99 S.E.2d 862 (1957), should be
controlling. In Hardy, a thirteen year old boy was killed while crossing a public
highway to go to his home after laboring at this employer‟s barn. The employer‟s
farm included land on both sides of the highway. The boy lived in a farmhouse on
the employer‟s property across the street from the barn. The employer provided
housing to the employee and his family rent-free so the family could be available
at various times night and day to work on the farm. The Supreme Court deemed
that the boy‟s death was compensable under the special errand exception because
“the fact that the employee had to cross the highway on his way to and from the
farm constituted an additional hazard of his employment.” Hardy, 246 N.C. at
586, 99 S.E.2d at 867.

       Justice Whichard disagreed with the majority‟s interpretation of Hardy and
noted that the plaintiff in Royster faced the same additional hazard as the boy in
Hardy. Justice Whitchard also disagreed with the majority‟s application of
Barham in that the employee in Barham had not yet entered the employer‟s
premises when she was injured. In Royster, the employee was injured while
moving between one portion of the employer‟s premises (the parking lot) and
another (the workplace). Since the employee would have received benefits had he
been injured while moving from an on-premises parking lot to the workplace,
Justice Whitchard felt that fairness and logic would dictate that an employee
parking in an off-premises lot which is owned and controlled by the employer
would also receive the same treatment. Royster, 243 N.C. at 284, 470 S.E.2d at 32.

             2.    Jennings v. Backyard Burgers of Asheville, 123 N.C. App. 129,
                   473 S.E.2d 205 (1996)

       In Jennings, the Court of Appeals reluctantly applied Royster and held that
the going and coming rule prevented an employee from receiving workers‟
compensation benefits when the employee was injured while going down a narrow
set of stairs in a parking lot not maintained, owned, or controlled by the employer.
When the plaintiff was hired by the employer, he was instructed to use the parking
lot next door to the defendant‟s premises when going to and from work. The
parking lot was accessible only by using a steep stairway on a hillside behind the
defendant‟s premises. Plaintiff was injured after leaving work one day when he
slipped and fell down several stairs.

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       The Court of Appeals noted that although the employer instructed the
plaintiff to use the adjacent parking lot and the lot was accessible only by using the
stairway, plaintiff was not entitled to benefits because at the time of his injury,
plaintiff was not performing any specific duties for defendant and because the
employer did not own, maintain, or control the parking lot or stairway. The Court
of Appeals stated, however, that it did not agree with the Supreme Court‟s narrow
interpretation of the premises exception in Royster, but that it was nevertheless
bound by that decision in holding that plaintiff‟s injuries did not arise out of or in
the course of his employment.

             3.    Horn v. Sandhill Furniture Co., 245 N.C. 173, 95 S.E.2d 521
                   (1956)

       Although the Jennings court reluctantly applied the Royster holding, there is
additional precedent in North Carolina for denying a claim for an injury occurring
on a necessary route between a parking lot and the employer‟s place of business.
In Horn, the Supreme Court held that an injuring occurring on a public highway
between the employee designated parking lot and the employer‟s main factory was
not compensable. In that case, the employee parked his car in a lot owned,
maintained, and controlled by the employer. It was customary for several
employees to leave their lunch in the car and return to the parking lot to eat lunch
during their 30 minute break. The employees were allowed to go anywhere they
wished for lunch, but a majority would cross the public highway and gather near
their cars to eat lunch. The employee was struck by a car on his lunch break while
crossing the public highway between the furniture plant and the parking lot. The
Court found that since the employee was free to eat lunch anywhere he pleased and
since his duties as a laborer did not require him to be on the highway when he was
injured, the injury did not arise out of and in course and scope of his employment.

        In arriving at its decision, the Court held that “claimant‟s exposure to the
risks of the highway was voluntary on his part, and was not incidental to the
performance of his work, or in any way connected with it….The risk of going to
lunch is not a risk incident to the employment, but is a risk incident to the hazards
of the street, precisely like those to which the public generally is subjected.” Horn,
245 N.C. at 179, 95 S.E.2d at 525. Although this case does not involve the going
and coming rule, it does give an explanation as to how the Supreme Court arrived
at its analysis for applying the “arising out of” and “in the course of” prongs of §
97-2(6) in cases involving off premises employee travel.
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III.   THE PREMISES EXCEPTION

       A.    Overview of the Premises Exception

       As a general rule, injuries occurring while an employee is going to or
coming from work are not compensable. Barham v. Food World, Inc., 300 N.C.
329, 266 S.E.2d 676 (1980). However, when an employee is injured while going
to or coming from work, but is on premises owned, controlled, or maintained by
the employer, the injury is compensable. Royster v. Culp, Inc., 343 N.C. 279, 470
S.E.2d 30 (1996). The general trend by the Supreme Court is to deny
compensability if the injury occurs off-premises, even if the place where the injury
occurs is a necessary route between one area of employer-owned property to
another area of employer-owned property. The theory behind the narrow reading
of the premises exception is that crossing public roads and navigating public
walkways are risks inherent to the general public and are not special hazards
caused by employment. Horn v. Sandhill Furniture Co., 245 N.C. 173, 95 S.E.2d
521 (1956); Jennings v. Backyard Burgers of Asheville, 123 N.C. App. 129, 131,
473 S.E.2d 205, 207 (1996).

        This narrow reading of the premises exception was most recently affirmed
by the Supreme Court in Smallwood v. Eason, 346 N.C. 171, 484 S.E.2d 526
(1997). In Smallwood, plaintiffs Peggy Smallwood and Craig Morning were
picked up after their shift at the Perdue Farms maintenance garage by plaintiff
Morning‟s brother, Duane Morning. Duane Morning was driving an automobile
owned by Laura Grant. At about the same time, a forklift driven by Defendant
Curtis Eason and owned by Perdue stalled in the road adjacent to the Perdue
facilities. He was unable to move the forklift completely out of the road and
Defendant‟s car collided with the forklift causing injury to plaintiffs. The road
adjacent to the Perdue facilities was the only means of ingress and egress from the
Perdue facility. The road was open to the general public, but no homes or
businesses other than Perdue were on the road.

       The Court of Appeals held that even though Perdue did not own the road, the
employees were at the site of the accident because of their employment. Since the
Perdue access road was the only way for plaintiffs to arrive and leave work and
since the accident was due in part to the stalled Perdue forklift, the Court of
Appeals held that plaintiffs injuries were not barred by the going and coming rule.
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The Supreme Court reversed this holding and relied on Judge Greene‟s dissent.
Judge Greene cited Royster and held that the premises exception applies only if the
place where the injuries occurred was either owned, maintained, or controlled by
the employer. This is so even if the accident occurs at a place the employee is
required to traverse in order to access his actual place of employment. Smallwood,
123 N.C. App. at 670, 474 S.E.2d at 418. Since Perdue did not own, maintain, or
control the public road on which the accident occurred, the plaintiffs were not in
the course and scope of their employment with Perdue at the time of the accident
and the Workers‟ Compensation Act would therefore not apply.

      B.     Treatment of the Premises Exception in a Majority of Jurisdictions

      This trend by the North Carolina Supreme Court of not extending the
premises exception to an off-premises necessary route is the minority view that has
only been reluctantly endorsed by the Court of Appeals. Jennings v. Backyard
Burgers of Asheville, 123 N.C. App. 129, 131, 473 S.E.2d 205, 207 (1996);
Smallwood v. Eason, 346 N.C. 171, 484 S.E.2d 526 (1997). Prior to the Royster
holding, North Carolina courts held that the premises exception included “adjacent
premises used by the employee as a means of ingress and egress with the express
or implied consent of the employer.” Harless v. Flynn, 1 N.C. App. 448, 456, 162
S.E.2d 47, 53 (1968); See also Bass v. Mecklenburg County, 258 N.C. 226, 233,
128 S.E.2d 570, 575 (1962).

        Professor Larson has noted that “one category in which compensation is
almost always awarded is that in which the employee travels along or across a
public road between two portions of the employer‟s premises, whether going or
coming, or pursuing active duties.” See, e.g., 1 Larson, Workmen's Compensation
Law, § 15.14 (1999). As stated in Jennings, most jurisdictions hold that an injury
on a public street or at other off-premises places between a plant and a parking lot
is in the course of employment because it is a necessary route between two
portions of the employer‟s premises. See, e.g. Hughes v. Decatur Gen. Hosp., 514
So.2d 935 (Ala.1987); Knoop v. Industrial Comm'n, 121 Ariz. 293, 589 P.2d 1325
(App.1978); Wentworth v. Sparks Regional Medical Ctr., 49 Ark.App. 10, 894
S.W.2d 956 (1995); Lewis v. WCAB, 15 Cal.3d 559, 125 Cal.Rptr. 353, 542 P.2d
225 (1975); State Compensation Ins. Fund v. Walter, 143 Colo. 549, 354 P.2d 591
(1960); West Point Pepperell, Inc. v. McEntire, 150 Ga.App. 728, 258 S.E.2d 530
(1979); Gray Hill, Inc. v. Industrial Comm'n, 145 Ill.App.3d 371, 99 Ill.Dec. 295,
495 N.E.2d 1030 (1986), cert. denied, 479 U.S. 1089, 107 S.Ct. 1298, 94 L.Ed.2d
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154 (1987); Harlan Appalachian Regional Hosp. v. Taylor, 424 S.W.2d 580
(Ky.Ct.App.1968); Thomasee v. Liberty Mut. Ins. Co., 385 So.2d 1219
(La.App.1980), cert. denied, 392 So.2d 675 (La.1980); Wiley Mfg. Co. v. Wilson,
280 Md. 200, 373 A.2d 613 (1977); Smith v. Greenville Prods. Co., 185
Mich.App. 512, 462 N.W.2d 789 (1990); Lewis v. Walter Scott & Co., 50
N.J.Super. 283, 141 A.2d 807 (1958); Gaik v. National Aniline Div., Allied Chem.
& Dye Corp., 5 A.D.2d 1039, 173 N.Y.S.2d 409 (1958); Blair v. Daugherty, 60
Ohio App.2d 165, 396 N.E.2d 238 (1978); Swanson v. General Paint Co., 361
P.2d 842 (Okla.1961); Willis v. State Acc. Ins. Fund, 3 Or.App. 565, 475 P.2d 986
(1970); Epler v. North Am. Rockwell Corp., 482 Pa. 391, 393 A.2d 1163 (1978);
Branco v. Leviton Mfg. Co., Inc., 518 A.2d 621 (R.I.1986); Lollar v. Wal-Mart
Stores, Inc., 767 S.W.2d 143 (Tenn.1989).

      C.     Applications of the Premises Exception in North Carolina

       Although the premises exemption is narrowly applied, both the state and
federal courts have been quite clear that if the employer either owns, maintains, or
controls the premises, including a parking lot, where the employee is injured, that
injury will be compensable. When employees are injured on parking lots either
before or after work, the injury comes within the premises exception to the going
and coming rule.

             1.    Davis v. Devil Dog Mfg. Co., 249 N.C. 543, 107 S.E.2d 102
                   (1959)

       The Supreme Court held that claimant‟s broken ankle occurred in the course
of her employment because claimant slipped and fell while on her way to work
walking from her parked car in the employer‟s parking lot down a clay walk to her
employer‟s plant. The employer provided the parking lot, maintained the lot, and
supervised the activity on the lot. The court held that “going to and from the
parking lot in order to reach and leave her immediate working area was a necessary
incident to the claimant‟s employment.” Davis, 249 N.C. at 547, 107 S.E.2d at
105.

             2.    Bass v. Mecklenburg County, 258 N.C. 226,128 S.E.2d 570
                   (1962)


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       In Bass, the claimant, who was provided room and maintenance on the
premises of her employment, was injured when she slipped and fell while on her
way from her living quarters to the building where she expected to have breakfast
before proceeding to the main building where she worked. In recognizing her
claim as compensable, the Supreme Court noted that “the great weight of authority
holds that injuries sustained by an employee while going to or from his place of
work upon premises owned or controlled by his employer are generally deemed to
have arisen out of and in the course of the employment . . . are compensable,
provided the employee‟s act involves no unreasonable delay.” Id. at 233, 128
S.E.2d at 575; Davis v. Devil Dog Mfg. Co., 249 N.C. 543, 107 S.E.2d 102 (1959).

             3.    Maurer v. Salem Co., 266 N.C. 381, 146 S.E.2d 432 (1966)

       The claimant in this case was injured after work in his employer‟s parking
lot while pushing a fellow employee‟s car trying to get the engine started in order
to get a ride home. The Supreme Court found the case compensable because the
injury occurred on the employer‟s premises and thus fitted within the premises
exception of the going and coming rule. The Court also found that the 20 to 25
minutes between the plaintiff leaving work and the injury was without significance
since the time had been devoted exclusively to starting the vehicle.

             4.    Harless v. Flynn, 1 N.C. App. 448, 162 S.E.2d 47 (1968)

       The Harless case is a good example of the factors necessary for an injury to
fall within the premises exception. In Harless, the plaintiff was employed at the
Henry T. Link Corporation plant in Lexington, North Carolina. Link Corporation
maintained on its premises a parking lot where its employees and guests parked
their automobiles. One afternoon, plaintiff and defendant were preparing to leave
the employer‟s parking lot to go eat lunch at some place off the employer‟s
premises. The vehicle in which plaintiff was a passenger was struck by the vehicle
being driven by defendant. The accident occurred while both cars were still on the
employer‟s parking lot. The Court gave a lengthy explanation as to the time, place,
and circumstances requirements necessary to exempt the going and coming rule.
Since the accident occurred on the employer‟s premises, the Court held that
plaintiff‟s injury occurred within the course of her employment and was therefore
covered by the Workers‟ Compensation Act.

             5.    Shivers v. Navy Exchange, 144 F.3d 322 (4th Cir. 1998).
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       The parking lot exception to the going and coming rule is not limited to state
court decisions. The Fourth Circuit recently applied the premises exception to find
that an injury occurring on a commissary parking lot owned by the federal
government, but maintained by the Navy Exchange store, was compensable. In
Shivers, the court clarified that when an employer owns, maintains, or controls a
parking lot, it is responsible for the injuries of its employees that occur on that
parking lot. This case is significant because the employer, Navy Exchange, did not
actually own the parking lot on which the employee was hurt. The employee was
directed to park on the parking lot and the Navy Exchange was responsible for
maintaining the parking lot. Some of the maintenance included mowing the grass
around the lot and in the median strip, salting the sidewalk in case of snow, and
picking up litter on the lot. The actual lot, however, was owned by the Department
of Navy, which was responsible for all major structural repairs.

      The court presented the issue as “whether a parking lot maintained by an
employer for its employees should be considered part of that employer‟s premises
for purposes of [the] course-of-employment requirement.” Shivers, 144 F.3d at
324. The court held that “although Navy Exchange did not actually own the
parking lot property, it did direct its employees to park there and had an active
hand in controlling the lot. Accordingly, we find that the lot bears a significant
connection to Navy Exchange‟s workplace such that the parking lot should be
considered part of its premises for purposes of recovery.” Id. at 325.

             6.    Arp v. Parkdale Mills, Inc., I.C. No. 863218 (F.C. 4/9/01)

      Plaintiff finished his shift and left work by the plant‟s rear exit where his
mother came to pick him up. The gate through which he normally exited was
locked. The plaintiff tried to scale the fence surrounding the parking lot and fell
and brought his leg. The parking lot was owned, maintained, and controlled by the
employer. The plaintiff‟s injuries were found to be compensable because they
occurred on the employer‟s premises.

       Commissioner Mavretic dissented and stated since the gate was locked and
the fence was topped with barbed wire, the employer clearly intended that the
fence not be climbed. The dissent argued that since plaintiff did not use an
accepted form of traversing the employer‟s premises and since evidence showed

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that plaintiff left work 15 minutes early (which was rejected by the majority),
plaintiff was outside the course and scope of employment at the time of his injury.

             7.    Morrison v. Sagebrush Steakhouse, I.C. No. 652124 (F.C.
                   2/5/99)

       This case is not a going and coming case, but it does highlight how the
Commission treats injuries that occur on parking lots. In Morrison, the employee
would often ride his motorcycle to work and park either in the employee area of
the customer parking lot, or on a concrete pad next to the rear door of the
restaurant. On days when it rained, the employee‟s boss gave him permission to
bring the motorcycle indoors and keep it in a storage room until the rain stopped.
On the day in question, the employee rode his motorcycle to work and parked in
the parking lot. When it started to rain and hale, the employee was given
permission to put the motorcycle in the storage room. After the storm passed, the
employee‟s supervisor asked him to remove the motorcycle from the storage room
and take it back to the parking lot. The plaintiff pushed the motorcycle out of the
restaurant then rode it to the employee area in the back of the parking lot. As
plaintiff was pulling into the parking space, the brakes on the motorcycle failed.
Plaintiff accidentally twisted his wrists causing the motorcycle to accelerate and
lunge forward. He was thrown down a vertical embankment landing against a tree.

       Deputy Commissioner Morgan Chapman found for the defendant. The Full
Commission reversed stating that since the employee was acting at the direction of
his supervisor, the injury arose out of and in the course of his employment.
Although this case does not apply the going and coming rule, it relied on the
previous rulings in Davis v. Devil Dog Mfg., Mauer v. Salem, and Bass v.
Mecklenburg County to find that plaintiff‟s action arose out of his employment.

             8.    Ham v. Ogden Corp., I.C. No. 656673 (F.C. 8/27/98)

      The Full Commission heard this case after the Supreme Court issued its
narrow interpretations of the premises exception in Royster and Smallwood. The
Full Commission distinguished Royster and awarded benefits to a janitor who was
injured on a parking lot not owned by his employer, but located at his place of
employment. The janitor was employed by the employer-defendant to provide
maintenance and janitorial services to Bridgestone/Firestone at Bridgestone‟s plant
in Wilson, North Carolina. The business relationship between the defendant and
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Bridgestone was governed by a contract entered into between them. Under the
terms of the contract, Bridgestone would dictate the work that was to be performed
by defendant‟s employees. Bridgestone provided a parking lot for the use of
defendant‟s employees. The plaintiff was required to show a security card in order
to access the parking lot. The parking lot was guarded by security personnel and
was not open to the public.

       Defendant‟s employees were responsible for maintaining the parking lot
when so directed by Bridgestone. Such maintenance included repairing the fence
and lights, hanging signs, picking up litter, mowing grass, and clearing snow.
Other contractors also worked on the parking lot at the direction of Bridgestone.
The defendant did not own or lease any property on the Bridgestone plant. Upon
arriving to work one morning after a winter storm, plaintiff parked in the parking
lot and stepped out of his car. He immediately slipped on ice in the parking lot and
sustained injuries to his left wrist.

       The Full Commission consisting of Commissioners Bunn, Mavretic, and
Ballance unanimously held that plaintiff was entitled to benefits because at the
moment plaintiff entered the Bridgestone parking lot, he was “about his
employer‟s business and was no longer coming to his assigned place of
employment.” The Full Commission broadly interpreted the premises exception to
apply even though the defendant did not maintain, control, or own the parking lot.
The Full Commission reasoned that since the plaintiff reported to the Bridgestone
plant pursuant to the defendant‟s instructions and since the Bridgestone plant was
plaintiff‟s regular place of business, the premises exception applied and plaintiff
was therefore entitled to benefits.

             9.     Holt v. Alex Lee, Inc., I.C. No. 504560 (F.C. 9/26/97)

       In Holt, the Full Commission applied the premises exception and found a
meat cutter‟s injuries compensable when he returned to the supermarket at which
he worked after he had left for the day and slipped on a wet spot on the floor. The
store had closed for the day and the plaintiff was going to his car in the parking lot.
Before entering his car, the plaintiff realized that he had left some groceries that he
had purchased earlier in the day in the meat cooler. The plaintiff knocked on the
locked door and his supervisor let him into the store to pick up his groceries. After
retrieving his groceries from the meat cooler, the plaintiff slipped on a wet portion
of the floor that had just been mopped. The Full Commission awarded benefits
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reasoning that “injuries sustained by an employee while going to and from his
place of work upon the premises owned or controlled by his employer are deemed
to have arisen out of and in the course of the employment . . . and are
compensable.”

IV.     THE SPECIAL ERRAND EXCEPTION

        The special errand exception states that when travel is contemplated as part
of the employee‟s work, injuries occurring during travel are compensable. Ross v.
Young Supply, Inc., 71 N.C. App. 532, 322 S.E.2d 648 (1984). The special errand
exception has been summarized by Professor Larson as follows: “When an
employee having identifiable time and space limits on his employment, makes an
off premises journey which would normally not be covered due to the usual going
and coming rule, the journey may be brought within the course of employment by
the fact that the trouble and time of making the journey, or the special
inconvenience, hazard, or urgency of making it in the particular circumstances, is
itself sufficiently substantial to be viewed as an integral part of the service itself.”
1 Larson § 16.11.

       The Supreme Court has adopted Prof. Larsons‟ exception in holding that the
“special errand rule provides that an employee is entitled to compensation under
workers‟ compensation while performing a duty or special errand for the
employer.” Powers v. Ladies Funeral Home, 306 N.C. 728, 295 S.E.2d 473
(1982). The rationale behind the going and coming rule is that the risk of injury
while traveling to and from work is one common to the public at large. However,
if an employee is injured while performing a special duty or errand for the
employer, the injury is compensable. The special errand exception encompasses
business trips and trips made for both personal and employment reasons (the dual
purpose doctrine). The conceptual difficulty in applying the special errand
exception is determining when the special errand ends and the going and coming
rule begins.




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      A.     Business Trips

       North Carolina adheres to the rule that employees whose work requires
travel away from the employer‟s premises are within the course of their
employment continuously during such travel, except when there is a distinct
departure for a personal errand.

             1.     Martin v. Georgia-Pacific Corp., 5 N.C. App. 37, 167 S.E.2d
                    790 (1969)

       In Martin, the plaintiff was staying at a hotel in Milwaukee for a week while
on a business trip. The plaintiff was required to attend classes at the hotel during
the day, but was free to spend his evenings as he wished. On the night of the
injury, the plaintiff, along with two others, walked three or four blocks to the
Milwaukee River and observed some yachts. After walking several blocks, they
then decided to go to the steakhouse at which they had previously planned to eat
dinner. While walking from the river to the steakhouse, the plaintiff was struck by
a car and killed.

       The Court of Appeals held that the plaintiff‟s injury was compensable
because “traveling employees, whether or not on call, usually do receive protection
when the injury has its origin in a risk created by the necessity of sleeping or eating
away from home.” Id. at 42, 167 S.E.2d at 793. The theory is that since requiring
the employee to stay overnight provides a benefit to the employer, any injury that
an employee sustains during his overnight stay is compensable provided that the
employee is acting reasonably at the time of his injury. Id. at 44, 167 S.E.2d at
794. The Court was of the belief that there was a reasonable relationship between
the plaintiff‟s employment and eating meals. Even though the plaintiff had taken a
personal trip to the marina, he was on his way to dinner when he was actually
struck by the car. Since the plaintiff “was at a place where he might reasonably be
at such time and doing what he, as an employee, might reasonably be expected to
do,” the Court found that he was acting in the course and scope of his
employment.” Id. at 44, 167 S.E.2d at 794.

             2.     Cauble v. Soft-Play, Inc., 124 N.C. App. 526, 477 S.E.2d 678
                    (1996), cert. denied 345 N.C. 751, 485 S.E.2d 49 (1997).

      The Court of Appeals again ruled that employees are in continuous
employment during business trips in Cauble v. Soft-Play, Inc. The decedent-
employee was employed by defendant and assigned to an equipment installation in
Erie County, New York. Employee was paid a per diem of $30.00 to be used for
any purpose, including purchasing meals. The company paid directly for
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employee‟s lodging. While on assignment, employee and his supervisor drove to a
restaurant/bar after a working a shift in order to eat dinner and watch a baseball
game. The employee and his supervisor stayed at the restaurant after their meal
and had a couple of drinks. While returning to their motel late that evening, an
accident occurred when another vehicle struck their vehicle as employee‟s
supervisor attempted to make a left hand turn. Decedent-employee was killed.
Both the employee and his supervisor were legally intoxicated.

       The Court of Appeals granted benefits reasoning that “a traveling employee
will be compensated under the Workers‟ Compensation Act for injuries received
while returning to his hotel, while going to a restaurant or while returning to work
after having made a detour for his own personal pleasure.” Id. at 529, 477 S.E.2d
at 679. Even though staying at a bar and watching a ball game would be
considered a detour for personal pleasure, the decedent-employee was killed while
returning to his motel. Sleeping in a motel and eating at restaurants are activities
that the employer instructed the employee to do. The Court, therefore, considered
these activities to be in the course of decedent-employee‟s employment. Once the
personal deviation had ended, the decedent-employee resumed activities and
rejoined the course of employment at the time of the accident. Id. at 530, 477
S.E.2d at 680.

             3.    Roberts v. Burlington Indus., Inc., 321 N.C. 350, 364 S.E.2d
                   417 (1988)

       The Supreme Court limited the business trip exception in Roberts v.
Burlington Indus., Inc. An employee was returning from a business trip in his own
vehicle when he witnessed another car strike a pedestrian. The employee stopped
to help the pedestrian and assisted by calling the authorities. The employee left the
scene for five minutes, but then returned to help direct traffic. The employee
himself was struck by a car while directing traffic. He died as a result of his
injuries. The employee‟s family filed a claim for workers‟ compensation benefits
contending that Burlington Industries, the decedent‟s employer, had benefited from
the goodwill that was generated by the many newspaper articles lauding the
commendable behavior of the employee. The plaintiffs argued that the going and
coming rule should not bar recovery because the employee was still in the course
of his employment at the time of the injury.

       The Supreme Court rejected the business trip exception argument and stated
that the commendable act of a good citizen and Samaritan in stopping to render
assistance to an apparent total stranger “had absolutely no rational relationship to
his duties as a furniture designer for defendant-employer.” Id. at 352, 364 S.E.2d
at 419; But see below Lewis v. Kentucky Central Life Ins. Co., 20 N.C. App. 247,
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201 S.E.2d 228 (1973)(holding that injuries occurring when an insurance salesman
stopped to help a client with her car were compensable). As such, the activity in
which the employee was engaged at the time of death was a risk to which members
of the public are equally exposed and his claim therefore did not arise out of or in
the course of his employment.



             4.     Jacobs v. Sara Lee Corp., I.C. No. 940754 (F.C. 12/17/01)

       The Full Commission recently refused to apply the business trip exception in
a case where an employee was injured while leaving a baseball game to go to an
employer sponsored event at a nearby restaurant. The employee was attending a
trade show in Chicago and decided to see a White Sox game with some co-
workers. The baseball game was not part of the trade show's scheduled events.
When it started to rain, the plaintiff decided to leave the baseball game and go to a
party at Dave & Busters that was on the trade show‟s list of scheduled events.
Plaintiff slipped and fell on his way out of the stadium injuring his knee.


        The Full Commission stated that since plaintiff was not required to be at
either the baseball game or the party, his injury did not arise out of and in the
course of his employment. The Full Commission held the plaintiff's injury "the
trip to Chicago was a pleasure trip won by plaintiff as a result of a sales incentive
program with his employer. Plaintiff was not required to travel to the baseball
game, chose to do so at his own desire, and his attendance at the baseball game,
including travel to and from the game, was not an act arising out of and in the
course of plaintiff's employment."

       Commissioner Mavretic dissented and stated that the trip to Chicago was
clearly business-related travel and arose out of plaintiff's employment. The
employer paid plaintiff's salary while he was in Chicago, paid for plaintiff's airfare
and hotel accommodations, and gave him expense money. Plaintiff was expected
to attend the food show during the four days he was staying in Chicago at
defendant-employer's expense.

       The dissent cited the appreciable benefit standard, which is discussed in later
sections, in arguing that the claim should be compensable. Commissioner
Mavretic stated "because defendant-employer financed the trip, plaintiff believed
that he was obligated or expected to attend the trade parties and other events that
were included on the program itinerary provided by defendant-employer.” She
believed that the employer benefited from the goodwill of attending the show and
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meeting other salespeople. The Commissioner also noted that even though
Plaintiff's attendance at the White Sox game was purely a voluntary decision and
constituted a personal departure from the business-related nature of his trip, the
plaintiff reentered the course of employment when he was leaving the stadium to
travel to the food show-related party. In her opinion, since attending the trade
show benefited the employer and since plaintiff was reentering the course of
employment when he was injured, plaintiff should have been entitled to
compensation for his injury.

      B.     Dual Purpose Trips: Delineating Between When a Deviation Ends and
             a Special Errand Begins

             1.     The Dual Purpose Rule

       In order for a deviation from the employer‟s premises to qualify as a special
errand, the employer must receive a benefit from the deviation. Aaron v. New
Fortis Homes, Inc., 127 N.C. App. 711, 493 S.E.2d 305 (1997)(holding that
employee‟s injury came under the special errand exception when he was involved
in an automobile accident while taking his supervisor to the hospital during
working hours); McBride v. Peony Corp., 84 N.C. App. 221, 352 S.E.2d 236
(1987)(holding that injuries sustained when employee slipped while walking down
a hill with her supervisor to look at a trailer was compensable since the employee‟s
supervisor directed the employee to drive to the place where the trailer was located
and asked the employee to look at the trailer with her even though it was after
working hours and the employee and supervisor were on their way to dinner
together). The dual purpose rule applies in North Carolina when “concurrently
with an employee‟s usual trip to or from work, she performs some service for her
employer which would otherwise necessitate a separate trip.” Massey v. Board of
Education, 204 N.C. 193, 167 S.E.2d 695 (1933). In other words, if an employee
is injured while performing a personal errand, but is within the “dual purpose rule,”
the injury by accident is considered to have arisen within the course and scope of
employment and is therefore compensable. Where the employment necessitates
travel, it has been held that the hazards of the route become the hazards of
employment. Williams v. Board of Education, 1 N.C. App. 89, 160 S.E.2d 102
(1968).

       In Humphrey v. Quality Cleaners & Laundry, 251 N.C. 47, 51, 110 S.E.2d
467, 470 (1959), the Supreme Court articulated the test for applying the dual
purpose rule. The Court stated that if the employee would have canceled the travel
if the business no longer required him to take the trip, it is travel that arises out of
and in the course of employment. If, on the other hand, the journey would have
gone forward if the business purpose had been canceled, then the travel is personal
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and the risk is one that the ordinary public would face. Id. at 51, 110 S.E.2d at
470.

             2.     Creel v. Town of Dover, 126 N.C. App. 547, 486 S.E.2d 478
                   (1997)

       The Court of Appeals recently addressed the dual purpose doctrine in Creel
and held that a mayor who was injured while riding his bike to remove a stalled
truck was within the special errand exception to the going and coming rule and was
entitled to workers‟ compensation benefits. On the evening of September 3, 1993,
the mayor of the Town of Dover received a request from a city alderman to move a
city owned truck that was blocking traffic in Dover. Plaintiff possessed the keys to
the truck and agreed to move the truck. Plaintiff left his house on a bicycle, but
before reaching the city owned truck, plaintiff first stopped at his place of business
and consumed an alcoholic beverage. Plaintiff then returned to his bicycle, but
was thrown from the bike when he struck a mound of dirt. The Deputy
Commissioner ruled that plaintiff‟s injury arose out of his employment and that
defendants failed to prove that plaintiff‟s intoxication was a proximate cause of his
injury. Both the Full Commission and the Court of Appeals affirmed.

       The Court of Appeals held that there was a reasonable relationship between
the plaintiff‟s trip to move the city owned truck and his employment as the mayor.
The Court rejected the going and coming rule and held that the mayor was on a
special errand. Defendants argued that since plaintiff had “no fixed time and space
limitations on his employment,” he should not be able to take advantage of the
special errand exception. The Court noted that even if the plaintiff had no fixed
time and place of employment, his journey to move the city owned truck would
nonetheless fall within the course of his employment since that particular duty
exposed him to risks of travel. The Court of Appeals noted that plaintiff would not
be entitled to benefits if plaintiff had engaged in a distinct departure on a personal
errand, but in this case, since plaintiff had ended his deviation and had resumed his
employment activities when the injury occurred, his injury was compensable. Id.
at 558, 486 S.E.2d at 484.

      C.     Acts Benefiting an Employer to An Appreciable Extent

      The following cases apply a combination of the special errand exception,
dual purpose doctrine, and traveling salesman exception to find that injuries
occurring while an employee engages in acts that benefit the employer to an
appreciable extent are compensable.


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             1.     Felton v. Hospital Guild of Thomasville, Inc., 57 N.C. App. 33,
                    291 S.E.2d 158 (1982)

       In Felton, the Court of Appeals applied the dual purpose rule and awarded
benefits. The plaintiff was injured when she slipped on her driveway. The
plaintiff was an employee of a hospitality shop. Every day, plaintiff was required
to pick up goods from the bakery on her way to work to sell in the shop. On this
particular day, plaintiff telephoned the local bakery to place the order. She left
home shortly thereafter intending to take a less direct route to the hospitality shop
so she could stop by the bakery. Plaintiff was about 30 feet from her front door
and had not quite reached her car when she fell and fractured her hip.

         The Court of Appeals held that the going and coming rule did not apply
since plaintiff was on a special errand for her employer at the time of her injury.
The Court of Appeals refused to institute a bright line test for determining when a
special errand begins and ends. “Although such a rule does have the attribute of
certainty, it cannot be attained at the expense of justice. In deciding questions
about when a special errand begins or ends, each case must be determined upon its
particular fact situation. No exact formula can be laid down which will
automatically solve every case.” Id. at 35, 291 S.E.2d at 159. The Court went on
to hold that “the proper rule of law to apply . . . is not „did the accident occur on
the employee‟s own premises,‟ Rather, an accident arises out of employment when
. . . the obligations of employment put the employee in the position or at the place
where the accident occurs.” Id.

       The Court then applied the dual purpose rule and found that the purpose of
plaintiff‟s journey was two-fold: she intended to proceed to work and she intended
to proceed to the bakery to pick up the order for the day. The work of the
employee, therefore, created the necessity for the travel and the business purpose
of the trip was calculated to further the employer‟s business. The Court held
plaintiff‟s claim compensable because “the hazards of the trip became the hazards
of her employment.” Id. at 38, 291 S.E.2d at 162.

       Justice Whichard dissented because plaintiff‟s hazard was a hazard faced
equally by others and had nothing to do with the fact that she was going to the
bakery. Justice Whichard explained the logical inconsistency with an example of
two people both walking to their cars from their homes. Person A intends to
perform a special errand for her employer, while Person B intends to drive straight
to work. Both face the same hazards of walking from their homes to their vehicles,
yet under this decision, Person A‟s injuries would be compensable and Person B‟s
injuries would not. Justice Whichard also dissented in Felton because he felt that
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since the plaintiff‟s special errand had not yet commenced, the dual purpose
doctrine was inapplicable on the grounds that when plaintiff injured herself, she
had not yet entered the scope and course of her employment for any business
purpose. Id. at 40, 291 S.E.2d at 162.

             2.     Powers v. Lady’s Funeral Home, 57 N.C. App. 25, 290 S.E.2d
                    720 (1982), rev‟d 306 N.C. 728, 295 S.E.2d 473 (1982)

       The Supreme Court broadly interpreted the dual purpose rule and the special
errand exception in Powers v. Lady‟s Funeral Home. Plaintiff was an embalmer at
a funeral home who was required to be on call for embalming emergencies and to
comfort families. Plaintiff received a call that a person had recently died. He went
to the funeral home to pick up a hearse to retrieve the body and to comfort the
deceased‟s family. He then returned to the funeral home to embalm the body.
Plaintiff had just finished embalming the body and was arriving home from the
funeral home around 2:30 a.m. He had intended to go inside and shower in order
to wash off the embalming chemicals since the funeral home did not have a
shower. He was then going to await any further calls. While plaintiff was walking
from his driveway to his home, his car rolled down an incline on his driveway and
struck him as he approached the house. Plaintiff suffered two broken legs and two
crushed ankles.

       The Deputy Commissioner denied benefits on the theory that a special
errand “only begins from the time the claimant physically leaves his property or
premises . . . and the journey only continues thereafter until the claimant physically
returns to his property.” Powers, 306 N.C.at 730, 295 S.E.2d at 474-75. The Full
Commission and the Court of Appeals affirmed, but the Supreme Court reversed
and found plaintiff to be within the scope of employment. The Supreme Court
held that the plaintiff‟s journey qualified as a special errand on this particular
occasion because his duties did not end at the conclusion of the journey. The
Court reasoned that since plaintiff was required to shower and change clothes after
embalming a body and since there were no facilities at the funeral home to
accommodate him, plaintiff was still in the course of his employment when he was
injured. Id. at 731, 295 S.E.2d at 473.

             3.     Ross v. Young Supply Co., 71 N.C. App. 532, 322 S.E.2d 648
                    (1984)

       This case is often cited for the premise that if travel is contemplated as a part
of the work that benefits an employer, injuries occurring during this travel are
compensable. This is often referred to as the “traveling salesman” exception. In

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actuality, it is just a broad application and extension of the special errand
exception.

       In Ross, a traveling salesman who worked out of his home was injured while
getting into his wife‟s car in preparation for making a sales call on behalf of his
employer. The salesman did not usually drive his wife‟s car, but his wife asked
him to drive it that day because she thought there might be something wrong with
the car and wanted his opinion. The plaintiff was a rather large man who usually
drove his station wagon when making sales calls. His wife‟s car was a Ford
Maverick. It was in the middle of winter and plaintiff had on a heavy coat. While
trying to fit his 6‟2”, 225 pound frame into the small car, plaintiff kept one leg on
the ground while he tried to maneuver the front seat farther back. As he continued
to maneuver in the car, his leg slipped and was broken.

       After finding that an injury by accident occurred, the court analyzed whether
the injury was barred by the going and coming rule. The court found that plaintiff
regularly used his car to make sales calls, but on this particular day, he chose to
drive his wife‟s car to make sure it was in sound running order. The court held that
“an injury to an employee while he is performing acts for the benefit of third
persons is not compensable unless the acts benefit the employer to an appreciable
extent.” Ross, 71 N.C. App. at 537, 322 S.E.2d at 537 (emphasis in original).
Since the employee was preparing to make a sales call, the court found that getting
into the car benefited his employer to an appreciable extent, even though it also
provided a benefit to his wife. The court thus found that the injury “arose out of”
plaintiff‟s employment. Id.

       The court then examined whether the injury was in “the course and scope”
of employment. The court stated that “if travel is contemplated as a part of the
work, accident in travel is compensable.” Id. The court held that “getting into an
automobile prior to driving out of one‟s driveway to make sales calls is a necessary
part of traveling and goes beyond mere preparation to travel.” Id. The court found
the claim to be compensable.

             4.     Lewis v. Kentucky Central Life Ins. Co., 20 N.C. App. 247, 201
                    S.E.2d 228 (1973)

       In Lewis, an insurance salesman who worked out of his home was injured
when he stopped on the side of the road to assist a client. Lewis was on his way
home to retrieve some insurance forms when he saw a policyholder on the side of
the road. A couple of days prior, he had gone to the policyholder‟s home to pick
up her premium and to enroll her brother. The insurance salesman turned his car
around and pulled up next to the policyholder. He offered her a ride home where
                                           25
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she met her husband. The employee then took the husband and policyholder to a
gas station and back to the car. After assisting the husband in filling up the gas
tank, the husband offered to pay the salesman for his help. The salesman refused.
As the salesman was getting back into his car, he was struck by an oncoming
vehicle and injured.

       The court found the claim compensable because the salesman‟s efforts
generated goodwill for the company. The court affirmed the Commission‟s
finding that the salesman “had reasonable grounds to believe that to help her would
be beneficial to his employer‟s interests, was incidental to his employment, and
would advance his employer‟s work.” Lewis, 20 N.C. App. at 249, 201 S.E.2d at
250. The court advanced the “appreciable benefits” test and stated “whether
plaintiff‟s claim is compensable turns upon whether the employee acts for the
benefit of his employer to any appreciable extent or whether the employee acts
solely for his own benefit or purpose or that of a third person.” The court found
that since the policyholder‟s view of the insurance company was advanced by the
acts of its agent, the salesman‟s actions benefited the employer to a substantial
degree. “Any actions of an employee which reasonably tend to build the goodwill
of his employer have at least some connection with employment, and the
suggestion has been made that this furnishes at least some rational basis for
considering such actions as „arising out of employment.‟” Id. at 251, 201 S.E.2d at
231.

       Note that this case has similar facts to the denied claim in Roberts v.
Burlington Industries discussed above. The main difference is that in Roberts, the
employee stopped to help a stranger, and in Lewis, the employee stopped to help a
customer. In a similar holding, the Court of Appeals awarded benefits to a
waitress who, on her way home from work, stopped to aid a customer who had
flagged her down on the side of the road. Culpepper v. Fairfield Sapphire Valley,
93 N.C. App. 242, 377 S.E.2d 777 (1989). The customer had flirted with the
waitress earlier in the evening, but the waitress politely turned down his advances.
When the waitress saw that the customer apparently needed assistance, she stopped
to help. The customer kidnapped the waitress and sexually assaulted her. The
court cited the “appreciable benefits” test and found the injuries were compensable
because assisting a guest of the employer was of an appreciable benefit to the
employer making her actions come within the course and scope of her
employment.




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             5.    Recent Applications by the Industrial Commission

                   a.     Floyd v. First Citizens Bank, I.C. No. 447320 (F.C.
                          2/24/98)

       In Floyd, Deputy Commisioner Glenn, writing for the Full Commission,
found that the special errand exception allowed plaintiff to recover for injuries
sustained when she slipped in a bagel store on her way to work. One of plaintiff‟s
duties was to coordinate a holiday breakfast for bank employees. On the day of the
breakfast, plaintiff first went to the grocery store to buy cream cheese then stopped
by a bagel shop to purchase bagels for the breakfast. Plaintiff slipped and strained
her lower back on her way out of the bagel store. The Full Commission analyzed
the case under the dual purpose rule and the special errand exception and found
that plaintiff‟s job created the necessity to travel to the bagel store. As such, the
injury was found to arise out of the course and scope of plaintiff‟s employment and
is compensable.

                   b.     Goodman v. Mountaire Farms of N.C., I.C. No. 008311
                          (D.C. 2/12/01)

       In Goodman, Deputy Commissioner Amy Pfeiffer found that the special
errand exception applied when an employee was instructed to be at work with the
company van earlier than usual. The plaintiff was employed by defendant as a
truck driver and forklift operator. Plaintiff generally reported to work at 5:00 a.m.
Plaintiff‟s personal vehicle was stolen and plaintiff‟s employer, as a courtesy to
him, allowed plaintiff to use the company van to drive to work. On one particular
morning, plaintiff was instructed by his supervisor to bring the van to work earlier
than usual so a crew of chicken catchers could be transported in it. Plaintiff‟s
cousin was a chicken catcher, and the supervisor instructed plaintiff to bring his
cousin to work early with him because the cousin was a member of the crew that
needed to be transported in the van. Plaintiff was told to come to work at 2:00 a.m.
instead of 5:00 a.m. After plaintiff picked up his cousin and while on the way to
the plant, plaintiff was in a motor vehicle accident

      This case was not analyzed under the transportation exception due in part
because use of the company van was a mere gratuity. See Transportion Exception
below. Instead, the Deputy Commissioner stated that Plaintiff was performing a
special errand for his supervisor by having the van to the plant three hours before
he was supposed to arrive and by bringing his cousin to work. The Deputy
Commissioner held that the claim was compensable because plaintiff‟s actions
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were authorized by his supervisor and “were calculated, even if indirectly, to
further the employer‟s business.”

                           c.       Osmond v. Carolina Concrete Services, I.C. No. 981284
                                    (F.C. 7/26/01)

       A recent Full Commission case held that plaintiff was entitled to benefits
when he was injured while riding to work with his boss. Plaintiff and his brother
did not own a vehicle and usually rode to work with a co-worker. When the co-
worker‟s truck broke down, the plaintiff‟s supervisor agreed to pick up plaintiff
and his brother and drive them to the construction site. After picking up plaintiff
and his brother, the supervisor planned to drop by his house to pick up a dump
truck needed for the job. Plaintiff was going to then drive the dump truck to the
jobsite. The accident occurred after the supervisor picked up plaintiff and his
brother, but before they arrived at the supervisor‟s home.

      The Full Commission found the claim compensable because plaintiff was
performing a special errand for his supervisor. The Full Commission reasoned that
the hazards of this route to the supervisor‟s home became the hazards of plaintiff‟s
employment. Since the employer was to receive a benefit from plaintiff driving
the dump truck, plaintiff‟s injuries were compensable. (Note, this case did not
discuss the injuries sustained by plaintiff‟s brother who was not assigned any
special task on the way to work. Since there is no indication that the transportation
was provided as an incident to a contract of employment, presumably the brother‟s
claim would be barred by the going and coming rule.)

         D.       Traveling Directly from Home to a Worksite other than the Regularly
                  Established Worksite

        Most of the confusion concerning going and coming claims involve the
situation where an employee travels directly from his or her home to a worksite
that is other than his or her regular office. Examples include real estate agents
injured on the way to show a house, home health care professionals who are
injured traveling to the patient‟s home, and construction workers going directly to
the site of a project. In all of these cases, the injuries will be found to be
compensable since the travel is inherent to the job and is a necessary incident of
employment. This is true even if the employee deviates from employment and
performs a personal errand.2

2
  This concept is closely related to the analysis as to when injuries occurring during “frolics” and “deviations” come
within the scope of employment. The determination of when an employee engages in a frolic or deviation and how
that impacts compensability is outside the scope of this article.
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             1.    Kirk v. State, 121 N.C. App. 129, 465 S.E.2d 301 (1995)

       The plaintiff was employed as a security guard at Caledonia Correctional
Institute in Halifax County. As a condition of his employment, plaintiff was
instructed to complete a four week training course at Halifax Community College.
He received a letter from the state informing him that there were no on-site
accommodations and it would be necessary for him to either drive his personal car
to the community college, or go to the prison where transportation would take him
to the training site. Plaintiff elected to drive his own car from his home to the
community college. He was not reimbursed for mileage and was not paid for this
travel time. Plaintiff was in an accident on the way to the community college and
suffered injuries.

       The court applied the special errand exception and found the injuries to be
compensable. The court held that “Kirk was required, as a condition of his
employment, to attend a four week training seminar which was not offered at
Caledonia….Therefore, Kirk was on a special errand to attend a training course at
the direction of and for the benefit of his employer.” Kirk, 121 N.C. App. at 133,
465 S.E.2d at 304. The court made the distinction between Kirk‟s regular place of
employment and the site that he was required to attend. The court indicated that
had Kirk been traveling to the prison, his claim would have been barred by the
going and coming rule. However, since the employer required the employee to
travel away from the employer‟s premises, the court found the special errand
exception to apply.

             2.    Warren v. City of Wilmington, 43 N.C. App. 748, 259 S.E.2d
                   786 (1979)

       Plaintiff was a community coordinator for the city and was required to
conduct a community meeting at a local church. Plaintiff scheduled the meeting
for 5:00 p.m. on the day after Christmas, which was a work holiday. She left her
home and went directly to the meeting. When only one person showed up at the
meeting, plaintiff decided to cancel the meeting and go home to file a report.
There was a lot of traffic, so plaintiff took a circuitous route home. She was
injured in an automobile accident while on this indirect route.

      The court held that plaintiff‟s job required her to travel to and from her place
of work to various places about the community. She was required to work nights
and holidays when meetings were usually scheduled. She was free to plan her own
routes to these meetings. Travel time and time writing reports were counted
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towards her hours, and she was paid the same rate for traveling to and from
meetings as she was in her regular office job.

       The Court held that since plaintiff was on a mission for her employer, her
injuries were compensable under the special errand exception. The court also held
that taking an indirect route did not constitute a deviation from employment.
Warren, 43 N.C. App. at 751.

             3.    Hunt v. Tender Loving Care Home Care Agency, Inc., I.C. No.
                   007496 (F.C. 8/13/01)

       Plaintiff is a certified nursing aide who provides home health care.
Typically, plaintiff did not travel to her employer‟s office, but instead, drove
directly to the patient‟s home. Plaintiff was expected to use her personal car to
assist patients with running errands and taking them to doctor‟s appointments. If
she was required to drive more than 30 miles in a weekday, she was entitled to
travel reimbursement. She also was entitled to travel reimbursement on holidays
and weekends.

      Plaintiff was injured in her personal car while going from her home to a
patient‟s home. The patient lived 13 miles from her home and the accident
occurred on a weekday. Plaintiff did not anticipate having to run any errands in
her car that day. Plaintiff therefore would not have been eligible for any travel
reimbursement that day.

       Deputy Commissioner Pfeiffer denied benefits and the Full Commission
reversed. The Commission analogized plaintiff‟s work as a nursing aide to a
traveling salesman stating that since travel “was inherent and necessary part of the
employment as an in-home health care provider,” any injury sustained as a result
of that travel is compensable. The Commission held that such travel was for the
benefit of her employer, and that the employee were therefore acting within the
course and scope of her employment at the time her injury was sustained.

             4.    Ford v. Southern Elevator Co., I.C. No. 705032, F.C.
                   (11/26/01)

      Plaintiff lived near Greensboro and was employed as a mechanic‟s helper.
He mainly worked out of his employer‟s principal office in Greensboro. On
December 2, 1996, Plaintiff was directed to report to defendant‟s Durham office to
begin a one week job in Butner. Plaintiff left his home in his own car and was
reimbursed for his round trip travel expenses in accordance with a union contract.
He was paid once for the mileage of going to Durham on December 2, and once for
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the mileage for the return trip on December 6. Plaintiff was allowed to stay in or
near Durham and submit hotel and meal expenses for reimbursement, or he could
travel back to Greensboro each night and stay at home. Plaintiff elected to travel
home each night, but was not reimbursed for travel expenses for the days he
elected to return home. Plaintiff was allowed to keep the per diem of $21.00 even
though he elected to return home every night. Plaintiff was injured in a car accident
while going from Greensboro to Durham on the morning of Friday, December 6.

       The transportation exception did not apply since at the time of the accident,
plaintiff was not being reimbursed for his travel expenses. Deputy Commissioner
Garner found that the employee was not in the course and scope of his employment
at the time of the accident. The Full Commission reversed and held that the special
errand exception applied. The Full Commission stated that the plaintiff‟s limited
assignment in Durham was akin to a traveling salesman whose travel benefited the
employer. The need to travel was not plaintiff‟s personal choice making the
injuries sustained during this travel compensable.

             5.    Stephens v. March Dev. Corp., I.C. No. 634021 (F.C. 9/1/99)

       A real estate agent was injured in a car accident on the way from her home
to her office. She planned to meet clients at her office to take them to various
properties. Other than meeting her clients, plaintiff was not required to go to the
office that day. Deputy Commissioner Hoag stated that plaintiff was not in the
course and scope of her employment at the time of her injury, and that her claim
was barred by the going and coming rule. The Full Commission reversed stating
that plaintiff‟s claim came within the special errand exception. The Commission
held that plaintiff‟s travel provided a mutual benefit to both plaintiff and her
employer, and that traveling to and from the office, clients‟ homes, and prospective
homes was an essential part of her job. Since this travel was “incidental to and
contemplated as part of plaintiff‟s employment with defendant, her job with
defendant exposed her to the risks of travel.” By traveling to meet her clients at a
specified location to go view homes, plaintiff was performing a special errand for
the benefit of her employer and her injuries were compensable.

      E.     The Special Errand Exception is Inconsistent with the Premises
             Exception

       The Court of Appeals holding in Felton and the Supreme Court‟s holding in
Powers are conceptually inconsistent with the Supreme Court‟s interpretation of
the premises exception. In Eason and Royster, supra, the Supreme Court refused
to apply the test of whether the obligations of employment put the employee in the
position or at the place where the accident occurred when determining whether an
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injury should fall within the premises exception. In Royster and Eason, benefits
were denied to employees who were injured off-premises, yet who were on a
necessary route to the employer‟s premises. The Court took a minority position
and drew a bright line test distinguishing between on-premises injuries and off-
premises injuries. This line of cases has effectively narrowed the premise
exception to the going and coming rule.

      The Court‟s holdings in Felton and Powers, however, have broadened the
special errand exception by allowing benefits for injuries occurring off premises,
as long as there is a “reasonable relationship” with the employee‟s employment. In
Felton, the Court of Appeals allowed compensation when the employment put the
employee at the site of the accident. The Supreme Court rejected this very rule in
Royster when addressing the premises exception.

       This broad interpretation of the special errand exception has the potential to
swallow the going and coming rule. On the one hand, the Supreme Court is saying
in Royster that it wants to limit employer liability by drawing a bright line for the
premises/off premises distinction. On the other hand, the Court refuses to apply a
bright line test in determining when a special errand begins. An employee is
therefore conceivably entitled to compensation at anytime and anywhere as long as
the injury has some “reasonable relationship” to employment. The entire theory
behind the going and coming rule is that employees should not be compensated for
risks faced equally by the general public. Many of the injuries that have been held
to be compensable under the special errand exception are injuries that are equally
faced by the general public (slipping in a bagel store, having problems getting into
your wife‟s car, falling in your driveway, having your car roll down an incline).

       In bringing or defending going and coming claims, it is absolutely necessary
to examine the reason why the employee was at the particular place where he or
she is injured. If the employee is put in a position that might pose a risk, however
slight, and the employer benefits from the employee taking that risk, there is an
argument that the claim is compensable under the special errand exception.
However, this reasoning is not applied to claims occurring on a necessary route
between an employer parking lot and the workplace because presumably the
employer does not benefit from that activity. Plaintiff‟s attorneys should rely on
the broad interpretations of the special errand cases and argue that at the time of
the injury the claimant was involved in an activity that bore a reasonable
relationship to employment and that activity benefited his or her employer.
Defense attorneys should emphasize the Court‟s narrow interpretation of the
premises exception and remind the Commission and the courts that the purpose of
the going and coming rule is to protect employers from being responsible for risks
faced by the general public.
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V.    THE TRANSPORTATION EXCEPTION

       There have been few cases addressing the transportation exception to the
going and coming rule. The Supreme Court stated in 1950 that “where
transportation is furnished in going to and from work, the injury sustained during
that time is compensable . . .whether the actual vehicle is furnished by the
employer or whether the employer furnishes money for said transportation and
leaves it to the employee to provide his own mode of transportation.” Puett v.
Bahnson Co., 231 N.C. 711, 712, 58 S.E.2d 633, 634 (1950).

      A.     Employer Pays or Reimburses the Cost of Transportation

      Claims are compensable when an employee is injured while traveling to and
from work in his own vehicle if the employer has arranged to compensate the
employee for either his time or his transportation costs. Puett, 231 N.C. at 712, 58
S.E.2d at 634.

             1.    Puett v. Bahnson Co., 231 N.C. 711, 712, 58 S.E.2d 633, 634
                   (1950).

      Plaintiffs were employed by defendant-employer to install an air
conditioning system in a cotton mill 15 or 20 miles from their home. They
commuted back and forth from the cotton mill each day, using their personal
vehicles and alternating among the personal vehicles of each of the three
employees. On the day of the accident, at about 6:30 or 7:00 a.m., while on their
way to the cotton mill from their homes, the three employees were involved in a
motor vehicle accident which resulted in injury to all three plaintiffs. The
defendant-employer paid each of the three plaintiffs an additional amount of
money each week to cover living expenses and the expense of traveling to and
from the cotton mill, which was the place of employment.

      The North Carolina Supreme Court held that the workers‟ compensation
claims of the three plaintiff-employees were compensable as an exception to the
going and coming rule since under the terms of the plaintiff‟s employment with
defendant-employer, transportation allowances were made by the defendant-
employer to cover the cost of such transportation. Id.

             2.    Kiger v. Bahnson Services Co., 260 N.C. 760, 133 S.E.2d 702
                   (1963)

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       In Kiger, the Supreme Court held that the going and coming rule did not bar
compensation to the estate of a worker killed while driving in his own vehicle from
his home near Winston-Salem to a job site in Laurinburg. The employee‟s
supervisor testified that a bus was available to take workers from Saxapahaw to the
Laurinburg job site. Employees had a choice of selecting their own private vehicle
or taking the bus. The employer would have paid for the bus fare from Saxapahaw
to Laurinburg, but it would not pay for other transportation allowances if the
employee selected his own vehicle. The employer, however, did pay for two hours
of travel time regardless of whether the employee took the bus or his own vehicle.

       The Supreme Court stated that the deceased worker‟s accident was
attributable in part to his employment requirement of traveling to Laurinburg. The
Court considered the fact that the employee was being paid for travel time and
concluded that the injury “arose out of” employment since there was a reasonable
relationship between the fatal accident and the worker‟s employment. Id. at 762,
133 S.E.2d at 704.

             3.     Franklin v. Wilson County Board of Education, 29 N.C. App.
                    491, 224 S.E.2d 657 (1976)

       In order for the claim to be found compensable on the basis of employer
compensation for travel, it must be clear where the employee is going. In Franklin,
the employee was a home economics teacher whose duties included going to the
store to pick up supplies for her class. She was also required to teach at both the
local high school and middle school. The employee would use her own vehicle for
traveling between the two schools and for purchasing the supplies. The employee
was paid a travel allowance of $37 per month and was given a school credit card
with which to purchase the home economics supplies. The employee‟s regular
hours were 8:00 a.m. to 3:30 p.m.

       On November 22, 1972, plaintiff taught her high school classes and then
drove to the middle school to teach her classes there. Plaintiff spent the rest of the
day at the middle school. That particular day was a payday. It was plaintiff‟s
custom to travel from the middle school back to the high school to pick up her
paycheck which would have been left in her mailbox after 1:00 p.m. Plaintiff
picked up her paycheck at approximately 3:05 p.m. She then left the high school
and was immediately struck by a tractor-trailer. Plaintiff died as a result of her
injuries. A search of her purse and car revealed a receipt for home economics
supplies and a cake pan, which was owned by the defendant-employer.

       The Court of Appeals stated that this case did not fall within any exception
to the going and coming rule simply because there was no evidence of where the
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employee was going at the time of the accident. Id. at 494, 224 S.E.2d at 660.
There was also no evidence that the employee was performing any of her duties
incident to employment at the time of the injury. Despite the fact that the
employee received travel pay, because there was no evidence indicating where she
was going at the time of her accident, her death did not arise out of or in the course
of her employment and was therefore not compensable.

      B.     Employer Furnishes Transportation

       Where an employer provides a transportation conveyance to his employees
as an incident to the contract of employment, and the accident occurs while going
to or from work, then a claim may be compensable as arising out of and in the
course of the employment. However, if the provision of the transportation is
gratuitous or a mere accommodation, then the case comes under the general going
and coming rule and the claim is not compensable. Jackson v. Bobbitt, 253 N.C.
670, 117 S.E.2d 806 (1961); Travelers Ins. Co. v. Curry, 28 N.C. App. 286, 221
S.E.2d 75, cert. denied, 289 N.C. 615, 223 S.E.2d 396 (1976).

             1.    Travelers Ins. Co. v. Curry, 28 N.C. App. 286, 221 S.E.2d 75,
                   cert. denied, 289 N.C. 615, 223 S.E.2d 396 (1976).

       In Travelers, the employer let one employee use a company motor vehicle to
transport two other employees from Greensboro to Lexington. This motor vehicle
was used regularly every day by the one employee to transport the two other
employees to work in Lexington. The one employee who drove the company truck
was compensated for this as part of his job. The other two employees were not
paid for the time while they were commuting to work. At 7:00 a.m. on the date of
the accident, while the one employee was transporting the other two employees to
the work site, a motor vehicle accident occurred injuring the two passenger
employees. The Full Commission found that the transportation was not provided
to the two injured employees pursuant to an express or implied term of a contract
of employment, that the two employees were not entitled to the transportation
furnished by the employer, and the two employees were not required by their
employer to use such transportation in commuting to and from work.

      The Full Commission found that since the transportation furnished by the
employer was gratuitous and a mere accommodation, the injured employees were
not within the course and scope of their employment when the accident occurred.
Travelers, 28 N.C. App. at 288, 221 S.E.2d at 78. The Court of Appeals affirmed
the Full Commission‟s decision.


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             2.    Harris v. Jack O. Ferrell, Inc., 31 N.C. App. 204, 229 S.E.2d
                   45 (1976)

      Several plaintiffs‟ decedents died when a truck in which they were
passengers was involved in a collision while they were on their way home from
work. Plaintiffs worked as laborers on defendant‟s construction site. The
deceased all worked in Chatman and lived in Oxnard. Their supervisor, Raynor,
was driving the truck and was also killed in the accident. Raynor received
reimbursement by the company for all gas, oil, maintenance, and other expenses in
owning and operating the truck. Raynor also received $25 per week plus 7 cents
per mile for all the miles driven between Raynor‟s home and the various job sites.
Although Raynor was authorized to hire employees, he was not authorized to
provide any benefits beyond the agreed hourly pay. The employees rode with
Raynor to work every day and paid Raynor $1 each for the ride.

        The Deputy Commissoner denied benefits and the Full Commission
affirmed. The Court of Appeals held that providing transportation for employees
was not an incident of the contract of employment. In fact, the employees paid for
their transportation. As such, the going and coming rule prevented the plaintiffs‟
recovery. (Raynor‟s claim was not at issue in this case.)

             3.    Tew v. E.B. Davis Elec. Co., 142 N.C. App. 120, 541 S.E.2d
                   764 (2001)

       The most recent appellate case dealing with the transportation exception
reaffirms the need for the transportation to be provided as a incident to
employment. In Tew, plaintiff went to his boss‟ house and the two then drove to
the worksite in the boss‟ car. They worked at the site for eight hours, and left the
jobsite together to return to the boss‟ home so Tew could retrieve his car. The boss
made a U-turn on the way home resulting in an accident. Deputy Commissioner
Stephenson awarded benefits, and the Full Commission affirmed.

      The Court of Appeals reversed because the boss‟ offer to take Tew to work
was not an incident to the contract of employment. The court quoted extensively
from Jackson v. Bobbitt, 253 N.C. 670, 117 S.E.2d 806 (1961), which stated:

      Courtesy rides given by an employer do not, generally, give rise to
      liability under compensation statutes. The transportation must be
      furnished as a real incident of the employment to come within the
      rule. In other words, there must exist an express or implied obligation
      on the part of the employer to provide transportation.
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      An employee who has completed his day's work and in company with
      other employees is riding on a conveyance of the employer upon a
      public street, pursuant to permission, but not to any obligation on the
      part of the employer by contract, express or implied, to furnish such
      transportation, is not engaged in performing any services for his
      employer, the word 'furnish' implying something more than
      'permission.'

      Where an employer merely permits or authorizes the use of his
      facilities by an employee to return home, it is not considered as being
      in the course of employment, but as a convenience to the employee.
      An injury happening under such circumstances does not bring the
      employee within the compensation act.

The court found that the boss‟ offer to give Tew a ride was a mere accommodation.
This is true even though the boss had all of the tools for the project in his truck and
benefited from arriving at the project at the same time as Tew. Since there was no
express or implied obligation to provide transportation, the court held that the
going and coming rule prevented Tew from receiving benefits under the Act.

             4.     Merrell v. Triangle Rent-A-Car, I.C. No. 938744, (D.C. 3/9/01)

       Deputy Commissioner Garner again applied the going and coming rule and
found that an injury occurring while a rental car employee was in the rental car did
not arise out of employment. The employee worked for the rental agency and
rented a car for her personal use. She was given no special consideration in renting
the car and the terms of the rental agreement did not differ from the terms
negotiated with other customers. Plaintiff drove the rental car to a funeral in Ohio.
Since she missed time from work due to the funeral, she was interested in working
extra hours. Plaintiff was not scheduled to work on the day of the injury. She was
injured in an accident that occurred on the same route that she normally took to
work. The Deputy Commissioner held that the fact that plaintiff was driving one
of the defendant‟s rental cars was not evidence supporting a finding of
compensability. The rental car was for plaintiff‟s own personal use. Since
plaintiff was not performing any task in furtherance of her employer‟s business, the
claim did not arise out of and in the course of employment.

VI.   CONCLUSION

       This article has explored the general going and coming rule which states that
injuries sustained while an employee is traveling to and from work are not
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compensable because such injuries do not arise out of or in the course of
employment. This rule, however, is subject to three exceptions. The “premises
exception” grants compensation even though the employee has not yet commenced
his specific job task if the injury occurred on property owned, maintained or
controlled by the employer. This exception is strictly interpreted and does not
pertain to injuries occurring on off-premises necessary routes of travel.

       The special errand exception allows recovery when the employer exercises
sufficient control over the employee so that the task is of an “appreciable benefit”
to the employer. This includes business trips, where an employee is deemed to be
in continuous employment unless the employee deviates on a personal errand.
Even if an employee deviates from employment, as soon as the employee begins to
return to his employer‟s business, such as returning to a hotel, or traveling to and
from meals, the employee regains the protection of the special errand exception.
The special errand exception applies even if the employee is engaged in activities
both for his own purpose and for the employer‟s purpose. A special errand has no
finite beginning or end, and employees are entitled to protection as long as the
special errand bears a “reasonable relationship” to the employment.

       Finally, injuries have been deemed compensable when, under the terms of
the employment or as an incident to the contract of employment, allowances are
made by the employer to cover the cost of transportation. If an employer furnishes
the transportation, it must be pursuant to an employment contract or agreement,
and cannot be a mere gratuity or accommodation. On the other hand, as long as
the employer is compensating an employee for his travel time or transportation
expenses, any injury occurring while the employee travels to and from work in his
own vehicle is compensable as long as it can be proven where the employee was
actually going.

        The modern trend with regard to the going and coming rule is to narrowly
apply the premises exception and transportation exceptions, but to broadly apply
the special errand exceptions. The Supreme Court has taken a restrictive view in
strictly applying the rule in the context of the premises and transportation
exceptions. However, there is some indication that the special errand exception
may swallow the rule if that exception continues to be broadly interpreted and
applied. At the one extreme is the Supreme Court holding in Royster where it
refused to award benefits to an employee who crossed a public road in order to get
from the employer-owned parking lot to the employer-owned main facility. At the
other extreme is the Supreme Court‟s holding in Powers where it granted benefits
to an employee who was struck by his own car in his own driveway. Until these
conceptual inconsistencies are resolved, the practitioner is left to his or her own
creative devices in arguing a going and coming case.
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                              CHAPTER 3 OUTLINE

                      SCOPE OF EMPLOYMENT—
               TO AND FROM AND OFF PREMISES INJURIES

   I.     INTRODUCTION

   II.    APPLICATIONS OF THE GOING AND COMING RULE
          A.  The Rationale Behind the Rule
          B.  Public Highway Cases
                1.    Wright v. Wake County Public Schools
                2.    Schmoyer v. Church of Jesus Christ of Latter Day Saints
                3.    Stanley v. Burns Int‟l Security
                4.    Bell v. Conetoe Volunteer Fire Dept.
                5.    Mullis v. AMP, Inc.
          C.  Parking Lot Cases
                1.    Royster v. Culp, Inc. (discussing Barham v. Food World,
                      Inc. and Hardy v. Small)
                2.    Jennings v. Backyard Burgers of Asheville
                3.    Horn v. Sandhill Furniture Co.

   III.   THE PREMISES EXCEPTION
          A.   Overview of the Premises Exception (discussing Smallwood v.
               Eason)
          B.   Treatment of the Premises Exception in a Majority of Jurisdictions
          C.   Application of the Premises Exception in North Carolina
                1.    Davis v. Devil Dog Mfg. Co.
                2.    Bass v. Mecklenburg County
                3.    Mauer v. Salem Co.
                4.    Harless v. Flynn
                5.    Shivers v. Navy Exchange
                6.    Arp v. Parkdale Mills, Inc.
                7.    Morrison v. Sagebrush Steakhouse
                8.    Ham v. Ogden Corp.
                9.    Holt v. Alex Lee, Inc.

   IV.    THE SPECIAL ERRAND EXCEPTION
          A.   Business Trips
                1.    Martin v. Georgia-Pacific Corp.
                2.    Cauble v. Soft-Play, Inc.
                3.    Roberts v. Burlington Indus., Inc.
                4.    Jacobs v. Sara Lee Corp.
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         B.     Dual Purpose Trips: Delineating Between when a Deviation Ends
                and a Special Errand Begins
                 1.     The Dual Purpose Rule (discussing the following:)
                             a. Aaron v. New Fortis Homes, Inc.
                             b. McBride v. Peony Corp.
                             c. Massey v. Board of Education
                             d. Humphrey v. Quality Cleaners & Laundry
                 2.     Creel v. Town of Dover
         C.     Acts Benefiting an Employer to an Appreciable Extent
                 1.     Felton v. Hospital Guild of Thomasville, Inc.
                 2.     Powers v. Lady‟s Funeral Home
                 3.     Ross v. Young Supply Co.
                 4.     Lewis v. Kentucky Central Life Ins. Co. (discussing
                        Culpepper v. Fairfield Sapphire Valley)
                 5.     Recent Applications by the Industrial Commission
                             a. Floyd v. First Citizens Bank
                             b. Goodman v. Mountaire Farms of N.C.
                             c. Osmond v. Carolina Concrete Services
         D.     Traveling Directly from Home to a Worksite other than the
                Regularly Established Worksite
                 1.     Kirk v. State
                 2.     Warren v. City of Wilmington
                 3.     Hunt v. Tender Loving Care Home Care Agency
                 4.     Ford v. Southern Elevator Co.
                 5.     Stephens v. March Dev. Corp.
         E.     The Special Errand Exception is Inconsistent with the Premises
                Exception

   V.    THE TRANSPORTATION EXCEPTION
         A.   Employer Pays or Reimburses the Cost of Transportation
               1.   Puett v. Bahnson Corp.
               2.   Kiger v. Bahnson Services Co.
               3.   Franklin v. Wilson County Board of Education
         B.   Employer Furnishes Transportation
               1.   Travelers Ins. Co. v. Curry
               2.   Harris v. Jack O. Ferrell, Inc.
               3.   Tew v. E.B. Davis Elec. Co. (discussing Jackson v.
                    Bobbitt)
               4.   Merrill v. Triangle Rent-A-Car
   VI.   CONCLUSION


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