Cook v. Wickson Trucking Co.

600 A.2d 918, 135 N.H. 150, 1991 N.H. LEXIS 151
CourtSupreme Court of New Hampshire
DecidedDecember 11, 1991
DocketNo. 90-405
StatusPublished
Cited by6 cases

This text of 600 A.2d 918 (Cook v. Wickson Trucking Co.) is published on Counsel Stack Legal Research, covering Supreme Court of New Hampshire primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Cook v. Wickson Trucking Co., 600 A.2d 918, 135 N.H. 150, 1991 N.H. LEXIS 151 (N.H. 1991).

Opinions

Thayer, J.

The plaintiff appeals from an order of the Superior Court (Hampsey, J.), entering summary judgment in favor of the defendants, plaintiff’s employer and its workers’ compensation carrier, thus denying the plaintiff’s claim for workers’ compensation benefits, RSA ch. 281-A (Supp. 1990). The sole issue on appeal is whether the trial court erred in ruling that, as a matter of law, the plaintiff’s injuries did not arise out of and in the course of his employment. We find no error and affirm.

At the time of the accident, the plaintiff was employed part-time by defendant Wickson Trucking Company (Wickson) as a mechanic. On November 23, 1985, at approximately 8:00 p.m., the plaintiff punched out of work for the day. He was driving home in a service truck owned by his employer when he encountered two of his coworkers walking along the road. Each had run out of gas while driving his own car home after work.

The plaintiff picked them up and drove to his home, where he left the service truck, picked up a gas can, and took another vehicle, a Honda. He drove his co-workers to a gas station and, on the way [153]*153back to the stranded cars, made a U-turn and collided with another vehicle.

The plaintiff’s claim for workers’ compensation benefits for the injuries he sustained in the accident was denied by the New Hampshire Department of Labor. The plaintiff then appealed to the superior court. The defendants moved for summary judgment, and the plaintiff filed a counter-motion for summary judgment. Following a hearing, the court found that there were no genuine issues of material fact and that the defendants had established an entitlement to judgment as a matter of law. The court’s order states:

“[A]t the time of the accident, the Plaintiff was performing a personal activity, not related to his employment at Wickson Truck, and ... the incidents which occurred were within the ordinary peril of travel between home and work. Therefore, the Court is unable to find that the cause of the injuries sustained by Cook can properly be considered a hazard of his employment at Wickson Trucking.”

On appeal, the plaintiff argues that he received a “call to employment” when he encountered his stranded co-employees, because his activities in assisting them were integrally related to his employment relationship with Wickson. The defendants, on the other hand, argue that the trial court correctly ruled that the plaintiff’s injuries resulted from the ordinary perils of travel between home and work and, as such, are not covered under workers’ compensation law.

“‘Summary judgment shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits filed, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.’” Lourie v. Keene State College, 121 N.H. 233, 235, 428 A.2d 902, 903 (1981) (quoting RSA 491:8-a (Supp. 1979)). The plaintiff does not dispute that there is no “genuine issue as to any material fact.” This review is limited, therefore, to the trial court’s application of the law to the facts as set forth above.

We turn now to the plaintiff’s contention that the trial court erred in concluding that his injury was not the result of a hazard created by the plaintiff’s employment. The New Hampshire workers’ compensation statute requires that an accidental injury, to be compensable, must “aris[e] out of and in the course of employment.” RSA 281-A:2, XI (Supp. 1990). “This requirement imposes on the claimant an obligation to prove that the injury is related to the [154]*154employment in terms of time, space, and subject matter.” Whittemore v. Sullivan Cty. Homemaker’s Aid Serv., 129 N.H. 432, 434, 529 A.2d 919, 920 (1987). This court has established that the claimant must prove:

“(1) that the injury arose out of employment by demonstrating that it resulted from a risk created by the employment, Maheux v. Cove-Craft Co., 103 N.H. 71, 74, 164 A.2d 574, 576 (1960); and (2) that the injury arose in the course of employment by demonstrating that (A) it occurred within the boundaries of time and space created by the terms of employment, Heinz v. Concord Union School Dist., 117 N.H. 214, 218, 371 A.2d 1161, 1164 (1977); and (B) it occurred in the performance of an activity related to employment, which may include a personal activity if reasonably expected and not forbidden, see Hanchett v. Brezner Tanning Co., 107 N.H. 236, 238-39, 221 A.2d 246, 247 (1966); or an activity of mutual benefit to employer and employee, see Hanchett v. Brezner Tanning Co., supra at 239, 221 A.2d at 248.”

Murphy v. Town of Atkinson, 128 N.H. 641, 645-46, 517 A.2d 1170, 1171-73 (1986) (citations omitted).

The plaintiff argues that merely because the accident occurred after work hours does not mean that his activity was personal and not related to his employment. While this court has questioned the utility of the strict “coming and going” rule, under which an employee having fixed hours and a fixed place of work is compensated only for injuries which occur on the employer’s premises, see Brousseau v. Blackstone Mills, 100 N.H. 493, 495, 130 A.2d 543, 545 (1957), we have repeatedly recognized that the ordinary perils of travel between home and work are not considered hazards of employment and, therefore, that injuries arising from such travel are noncompensable. See Donnelly v. Kearsarge Tel. Co., 121 N.H. 237, 240, 428 A.2d 888, 890 (1981); Heinz, supra at 218, 371 A.2d at 1164.

There are two exceptions to this rule. First, an employee may recover for injuries sustained while travelling to or from his place of employment if he is on a “special duty or errand” for the employer. Heinz, supra at 219, 371 A.2d at 1164; see Henderson v. Sherwood Motor Hotel, 105 N.H. 443, 445, 201 A.2d 891, 894 (1964). Second, personal activities are compensable if they are “reasonably to be expected” and “not forbidden,” Hanchett supra, or if they confer a “mutual benefit [on] the employee and employer.” N.E. Telephone Co. v. Ames, 124 N.H. 661, 664, 474 A.2d 571, 573 (1984).

[155]*155The first exception is not available to the plaintiff in the case before us because he has not argued that he was on a special errand for his employer at the time of the accident. However, even if the plaintiff has raised the “special duty or errand” exception, as the dissent contends, the instant circumstances do not fall within that exception.

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Bluebook (online)
600 A.2d 918, 135 N.H. 150, 1991 N.H. LEXIS 151, Counsel Stack Legal Research, https://law.counselstack.com/opinion/cook-v-wickson-trucking-co-nh-1991.