Kraf Construction Services, Inc. v. Ingram

Opinion MOON, C. J. Steven J. Ingram, appellee, was struck by an automobile while crossing a highway to get a soft drink. His employer, Kraf Construction Services, Inc., appellant, contends that the accident did not occur in the course of or arise out of the employment. We disagree and affirm the award because the accident occurred while the employee was seeking to satisfy his thirst during a trip in which the employer provided transportation to and from a work site away from the employer’s premises. Kent v. Virginia-Carolina Chem. Co., 143 Va. 62, 66, 129 S.E. 330, 331-32 (1925). Kraf Construction Services, Inc., employer, performs general construction work in the landscaping business. Kraf’s employees report to work at the company lot in Nokesville, Virginia at approximately 6:30 a.m. and are transported to various job sites and then back to the company lot at the end of the work day. The personal vehicles of the employees are left at the Nokesville lot. The employer pays for the company trucks and tools, and provides transportation for the employees [297] during the work day. The employees are paid from the time they arrive at the Nokesville lot until they leave the job site at the end of the day. On March 1, 1990, Ingram drove the employer’s truck to the job site of Mill Pond subdivision. When the tasks on the site were completed, the employees each carried one load of tools and equipment to the truck. A factual dispute exists as to whether the employment for the day was at this point completed. Ingram and other employees testified that some work material, fence material and bundles of stakes still needed to be loaded. Fogle, a supervisor and an owner of Kraf Construction, testified that employees are off the clock and technically free to leave directly from the job site after loading the truck. According to Fogle, at the time of the accident the work for the day was complete and the crew was on the way back to the Nokesville lot. In reality, the employees always rode the employer’s truck back to the Nokesville lot. Fogle also testified that Ingram had not finished his time sheet for that day, March 1, 1990. According to Eaton, a crew member, they were all still on the clock, because the truck was not completely loaded. Ingram testified that it was his understanding that he had to return to the lot at the end of each work day and was required to drive the employer’s truck. Each day the crew finished loading the trucks, Ingram drove one of the trucks back to the Nokesville lot. Various employees also testified that work activity was regularly conducted back at the company at the end of the day. The work included filling out time sheets, picking up paychecks and turning in invoices. Prior to leaving the job site for the Nokesville lot, the employees customarily obtained refreshments on a regular, authorized basis at a nearby High’s Convenience Store. On the day of the accident, Fogle drove his truck from the Mill Pond subdivision approximately 100 to 200 feet to the commuter lot, which was on the same side of the street as the subdivision. Ingram drove himself and other crew members down the Davis Ford Highway to the same area across from High’s Convenience Store. The distance between the commuter lot, on one side of the highway where the trucks were parked, and the High’s store on the opposite side of the highway, was approximately thirty to forty yards. The crew decided to walk across the highway instead of driving the truck into the parking lot because of the lack of parking and the difficulty leaving High’s parking lot onto the highway. The four-man team crossed the highway halfway. Three stopped but Ingram pro [298] ceeded across the other half and was struck by a vehicle and severely injured. The commission failed to resolve the conflict in the evidence as to whether Ingram had actually finished work and that the accident occurred during a trip back to the company lot or whether there was still work to be done and the accident occurred during a rest break. The commission found, instead, that in either event Ingram was entitled to compensation. We agree for reasons herein stated. “Where an employee is required to go to outside places to work and to return to the employer’s office to report, he is at all such time acting in the course of his employment, and is entitled to compensation if injured by accident at such time.” Taylor v. Robertson Chevrolet Co., 177 Va. 289, 293, 13 S.E.2d 326, 328 (1941). When an employee is required to travel away from the employer’s premises to perform his work and the employer furnishes transportation to the employee, the course of one’s employment is usually expanded to include travel to and from the work site and the activities reasonably incidental thereto. Boyd’s Roofing Co. v. Lewis, 1 Va. App. 93, 94-95, 335 S.E.2d 281, 282 (1985). See also Virginia Polytechnic Inst. v. Wood, 5 Va. App. 72, 78, 360 S.E.2d 376, 380 (1987). We hold that, regardless of whether the work had in fact been finished and the employees were on their way back to the Nokesville lot or whether they were merely on a rest break, the accident occurred during the course of the employment. So long as Ingram had not so deviated from the employment as to be deemed “on a frolic of his own,” the accident is considered to arise out of his employment. Taylor, 177 Va. at 295,13 S.E.2d at 329. There is no dispute that if Ingram had driven the truck across the road to the High’s store and the truck had been struck and Ingram was injured, the injury would be deemed to have risen from the employment. Kraf argues that because Ingram was out of the truck and attempting to satisfy his thirst away from the employer’s premises, the accident did not arise out of the employment. In so arguing, Kraf misapplies the personal comfort doctrine as it applies to an accident that occurs during work on the employer’s premises as opposed to an accident that occurs during a trip to or from an off-premises job site in which the employer provides transportation. Quenching one’s thirst in a conventional manner at a place the employee is expected to be is considered incidental to the employment [299] and, thus, cannot be considered “a frolic of the [employee’s] own.” Indeed, Virginia has adopted the “personal comfort” doctrine, under which an employee who seeks to satisfy his personal comfort, such as seeking to quench his thirst at a place provided by the employer, is within the employment. In Bradshaw v. Aronovitch, 170 Va. 329, 196 S.E. 684 (1938), the Supreme Court held: “An injury sustained by an employee while in the act of satisfying his thirst ordinarily arises ‘out of’ and ‘in the course of’ the employment,” provided the employee uses the facilities furnished to him by the employer, or does not depart from the employer’s premises, or go to some place thereon where he has no right to be. Id. at 336-37, 196 S.E. at 687 (citation omitted). It is true that if the employer provides the employee a satisfactory place to satisfy his personal comfort, the employee must use that place or risk the loss of compensation. However, when, as here, the employee is traveling and no such place to satisfy the employee’s personal comfort is provided, a different rule applies. See Taylor, 177 Va. at 295, 13 S.E.2d at 329. The question is whether the activity of quenching one’s thirst is incidental to the travel or employment or a “frolic” of one’s own. That question was answered in two Supreme Court cases. In Bradshaw, the Court held: Such acts as are necessary to the life, comfort, and convenience of the servant while at work, though strictly personal to himself, and not acts of service, are incidental to the service, and injury sustained in the performance thereof is deemed to have arisen out of the employment. A man must breathe and occasionally drink water while at work. In these and other conceivable instances he ministers unto himself, but in a remote sense these acts contribute to the furtherance of the work. 170 Va. at 337, 196 S.E. at 687 (emphasis added). In Scott v. Willis, 150 Va. 260, 142 S.E. 400 (1928), the Court held: [Although normally] an employee while on his way to work is not in the course of his employment. . . where the workman is employed to work at a certain place, and as a part of his contract of employment there is an agreement that his employer shall furnish him free transportation to or from his work, the period of [300] service continues during the time of transportation, and if an injury occurs during the course of transportation it is held to have arisen out of and in the course of the employment. Id. at 265, 142 S.E. at 401. Ingram sought to satisfy his thirst, an activity within the course of his employment. He did so during a period of time in which the employer provided transportation. Highs Market was selected by his supervisor, who was also one of the owners of Kraf. Even the hazard of having to cross the street on foot was selected by the employer through Fogle, the supervisor. Ingram was seeking to satisfy his personal comfort during the course of his employment at a place known to and constructively approved by his employer. The street was a hazard of the employment. See Park Oil Co. v. Parham, 1 Va. App. 166, 170, 336 S.E.2d 531, 534 (1985). Because we find the hazard causing Ingram’s injury was a risk of his employment, the injury is compensable and the award is affirmed. Affirmed. Barrow, X, concurred.