August 2021 Case of the Month - New Jersey: Salesperson’s Lunch-and-Crash Not Compensable
Mackoff v. New Brunswick Saw Service, NJ Appellate Court, Unpublished
Petitioner was a salesperson for Respondent, New Brunswick Saw Service. He would frequently travel to and from various businesses for meetings and sales calls. On the date of injury, Petitioner drove from his home to a client meeting. After that meeting, Petitioner drove to the Galloping Hill Inn for lunch. However, he was involved in a car accident injuring his head, neck, and back on his way to the Inn.
Petitioner filed a Claim Petition for these injuries. As part of his case, Petitioner testified that he was going to the Galloping Hill Inn to have lunch, and in part, to see if he could solicit the Inn as a possible new customer. However, during cross-examination, Petitioner admitted that the restaurant was never formally solicited, and his main (true) intention in going there was to have lunch. Nevertheless, Petitioner maintained that going to the restaurant was a minor deviation from his workday and that he was still in the course and scope of his employment as he was traveling for lunch.
The Judge denied the claim finding that Petitioner failed to establish that the car accident was work-related. The Judge found that the primary purpose of going to the restaurant was personal – he wanted to eat there. Claimant appealed to the appellate division.
On appeal, the Appellate Division affirmed the denial of the claim. The Court noted that employment was “multi-faceted and included situations in which the employee is physically away from the employer’s premise, but nevertheless is ‘engaged in the direct performance of duties assigned or directed by the employer.’” However, in this case, the Galloping Hill Inn was an hour away from Petitioner’s last sales call, and the restaurant was two hours away from his office. These distances were too far to be considered “minor” deviations. Further, since the Petitioner’s main motivation for going to the Inn was to eat lunch, he was not engaged in the direct performance of his job in making the trip to the Inn. The Court, therefore, affirmed the trial court’s denial of the claim.
Many of these course and scope cases are fact-sensitive. As such, a good defense will typically rely upon thorough fact investigation. In this case, the Court found the length of the drive to the restaurant to be a critical fact. While traveling employees are typically covered as they engage in minor deviations or activities of personal comfort (going to the bathroom, getting coffee), this case involved facts that were too much of a stretch for the Court to find the Petitioner still in the course and scope of employment. Defense-friendly course and scope decisions can be rare, so it is always nice to highlight one such as this.
As you may have heard, the New Jersey Division of Workers’ Compensation announced a “cautious return to normal operations” plan effective August 16, 2021. According to the new policy, all fifteen N.J. workers’ compensation court facilities shall be open to attorneys, litigants, court reporters, interpreters, and witnesses with specifically scheduled events or appointments. Increases in on-site events will be gradual and consistent with public health guidelines. The vast majority of workers’ compensation court proceedings will remain virtual, either telephonically or via Microsoft TEAMs. This will include routine list markings, pre-trial conferences, dismissals for lack of prosecution, and approval of settlements. Certain motion hearings and trials may be scheduled for in-person hearings upon agreement of the parties and the presiding workers’ compensation judge. The courts will not require proof of vaccination; however, masks and social distancing will be required in all workers’ compensation facilities.
Overall, while most events will still take place virtually, for the time being, we will likely see more and more in-person hearings as the courts continue their reopening efforts. You may start seeing in-person settlement hearings before long. This is certainly welcomed news. We will continue to monitor these developments over the coming weeks and months.
Disclaimer: This post does not offer specific legal advice, nor does it create an attorney-client relationship. You should not reach any legal conclusions based on the information contained in this post without first seeking the advice of counsel.