IN THE SUPREME COURT OF TENNESSEE
AT JACKSON
YVONNE MCCANN, ET AL. v. GLEN HATCHETT, ET AL.
Direct Appeal from the Chancery Court for Shelby County
No. 109237-3 D. J. Alissandratos, Chancellor
No. W1998-00808-SC-WCM-CV - Decided May 8, 2000
FOR PUBLICATION
In this workers’ compensation case the sole issue is whether the death of a traveling employee by
drowning is compensable as arising out of and in the course of employment. The trial court granted
summary judgment to the employer. We granted the employer’s motion for review filed pursuant
to Tenn. Code Ann. § 50-6-225(e)(5)(1999) and have determined that the employee’s death may
have arisen out of and in the course of the employment. It results that the trial court’s grant of
summary judgment to the employer is error, and the cause is remanded.
Tenn. Code Ann. § 50-6-225(e)(5)(1999); Judgment of the Trial Court Reversed; Remanded
BIRCH, J., delivered the opinion of the court, in which ANDERSON, C.J., and DROWOTA and BARKER,
JJ., joined. HOLDER , J., not participating.
Edwin C. Lenow, Memphis, Tennessee, for the plaintiffs/appellants, Yvonne McCann, as
grandmother and next of friend of Auron D. Hart, and Haywood Vanarsdale, uncle of Donald
Eugene King.
Carl Wyatt, Memphis, Tennessee, for the defendants/appellees, Glen Hatchett d/b/a Hatchett
Brothers and Associates of Fidelity & Casualty of New York.
OPINION
This workers’ compensation appeal was referred to the Special Workers’ Compensation
Appeals Panel of the Supreme Court pursuant to Tenn. Code Ann. § 50-6-225(e)(3) for hearing and
reporting to the Supreme Court findings of fact and conclusions of law.
Upon reference, the Panel concluded that the trial court’s grant of summary judgment to the
employer was error. We granted the employer’s motion for review filed pursuant to Tenn. Code
Ann. § 50-6-225(e)(5).
Tennessee Code Annotated requires that for death to be compensable under workers’
compensation laws, it must have happened by accident arising out of and occurring in the course of
employment. Tenn. Code Ann. § 50-6-103(a)(1999). Here, the employee drowned in the pool of
the hotel in which he had lodged while working at an out-of-state job site. Thus, the sole issue is
whether the employee’s death is compensable under the provision of the workers’ compensation
statutes. Because we conclude, for the reasons discussed herein, that because there are disputed
issues of material fact as to whether the employee’s death is compensable, we vacate the trial court’s
grant of summary judgment to the employer and remand the cause for further proceedings consistent
with this opinion.
Ordinarily, our review of this matter would be de novo upon the record of the trial court,
accompanied by a presumption of correctness of the finding, unless the evidence preponderates
against the findings of the trial court. Tenn. Code Ann. § 50-6-225(e)(2)(1999). When, however,
the grant of summary judgment in a workers’ compensation is appealed, the issue is not reviewable
de novo. Rather, review is controlled by the standard provided for summary judgment disposition
pursuant to Tenn. R. Civ. P. 56. Thus, our review here is on the record without any presumption
that the findings of the trial court are correct.
As we stated in Carvell v. Bottoms, 900 S.W.2d 23, 26 (Tenn. 1995):
The standards governing an appellate court's review of a trial court's
action on a motion for summary judgment are well settled. Since our
inquiry involves purely a question of law, no presumption of
correctness attaches to the trial court's judgment, and our task is
confined to reviewing the record to determine whether the
requirements of Tenn.R.Civ.P. 56 have been met. Cowden v. Sovran
Bank/Central South, 816 S.W.2d 741, 744 (Tenn. 1991).
The standards governing the assessment of evidence in the summary judgment context are
also well established. Courts must view the evidence in the light most favorable to the non-moving
party and must also draw all reasonable inferences in favor of the non-moving party. Byrd v. Hall,
847 S.W.2d 208, 210-11 (Tenn. 1993). Courts should grant summary judgment only when both the
facts and the inferences to be drawn from the facts permit a reasonable person to reach only one
conclusion. Carvell, 900 S.W.2d at 26 (citing Byrd, 847 S.W.2d at 210-11).
Viewing the evidence in a light most favorable to the non-moving party (here, the employee)
and drawing all reasonable inferences favorable to them, the salient facts of record show that Donald
Eugene King was employed by Glen Hatchett Carpet Services, a Memphis-based business. King,
with other employees, had been sent to Rutland, Vermont, by their employer to lay carpet at a
Rutland motel. While in Rutland, King and the other employees were lodged at the Days Inn at the
employer’s expense. While off-duty, at approximately 10 p.m. on June 23, 1996, King drowned in
the Days Inn pool. The record does not include other details surrounding his death.
-2-
The plaintiffs sought funeral expenses and benefits for King’s minor son. The employer filed
a motion for summary judgment in which it asserted that King’s death neither arose out of nor
occurred in the course of his employment and that, therefore, his death was not compensable under
the workers’ compensation statutes. The trial court agreed and entered summary judgment in favor
of the employer.
To resolve this issue, we must examine the circumstances surrounding King’s employment
status and his death.1 Employees working away from the regular job site are usually described as
“traveling employees,” and the crucial question is whether, under the circumstances, the death arose
out of and in the course of the employment. While not a matter of first impression, a review of
Tennessee cases produces no clear rule.
An observation by Lord Wrenbury in Herbert v. Foxx & Co., Ltd., is appropriate here. He
wrote:
The few and seemingly simple words “arising out of and in the course
of the employment” have been the fruitful (or fruitless) source of a
mass of decisions turning upon nice distinctions and supported by
refinements so subtle as to leave the mind of the reader in a maze of
confusion. From their number counsel can, in most cases, cite what
seems to be an authority for resolving in his favour, on whichever
side he may be, the question in dispute.
[1916] 1 App. Cas. 405, 419 (appeal taken from Yorkshire).
Commenting on Lord Wrenbury’s view, Justice Hamilton S. Burnett, in Jackson v. Clark &
Fay, Inc., stated in dissent that: “[w]e think that this statement is without a doubt one of the most
truthful that can be found anywhere in the law books. Anyone who makes any search and study of
the decisions will find the statement true without question.” 197 Tenn. 135, 148, 270 S.W.2d, 389,
395 (1954) (Burnett, J., dissenting).
In the following cases, the Court found that the traveling employee’s injury or death arose
out of and in the course of the employment: Pool v. Metric Constructors Inc., 681 S.W.2d 543
(Tenn. 1984) (Tennessee employee injured in vehicle accident returning home after having worked
in Mississippi); Watson v. United States Fire Ins. Co., 577 S.W.2d 668 (Tenn. 1979) (East
Tennessee-based employee injured in vehicle accident en route to training program in West
Tennessee); West Tennessee Nix-A-Mite Sys., Inc. v. Funderburk, 208 Tenn. 381, 346 S.W.2d 250
(1961) (employee killed in vehicle accident after having deviated from usual route for personal
1
Obviously, if an employee was working at an actual job site at the time of his or her injury
or death, the question of whether the injury or death “arose out of and in the course of the
employment” would be elementary. It is for this reason that “traveling employee” cases typically
involve injury or death occurring at a place other than at the actual job site.
-3-
reasons); Gregory v. Porter, 204 Tenn. 582, 322 S.W.2d 591 (1959) (employee killed in vehicle
accident returning home from out-of-town trip on employer’s business); Carter v. Hodges, 175 Tenn.
96, 132 S.W.2d 211 (1939) (Tennessee employee killed in hotel fire in Georgia while on business
of employer); Employer’s Liability Assurance Corp. v. Warren, 172 Tenn. 403, 112 S.W.2d 837
(1938) (employee’s fall from hotel’s second-story porch caused fatal injuries).
In contrast, the Court found in the following cases that the traveling employee’s injury or
death did not arise out of and in the course of the employment: Isabell v. Ren Corp., No. 01S01-
9301-CV-00003, 1993 WL 835552, at *1 (Tenn. Aug. 26, 1993) (Tennessee employee working in
Florida injured knee when she slipped and fell leaving restaurant after dinner); Smith v. Royal Globe
Ins. Co., Inc., 551 S.W.2d 679 (Tenn. 1977) (Tennessee employee injured in vehicle accident
returning home from Virginia job site); Knox v. Batson, 217 Tenn. 620, 399 S.W.2d 765 (1966)
(employee working away from home killed by “lethal gas” in motel room); Timmerman v. Kerr
Glass Mfg. Co., 203 Tenn. 543, 314 S.W.2d 31 (1958) (Tennessee employee killed on weekend trip
en route from Kentucky job site to Memphis); Jackson v. Clark & Fay, Inc., 197 Tenn. 135, 270
S.W.2d 389 (1954) (Tennessee employee working in Arkansas killed by tornado while riding in
employer’s truck from job site to motel); Underwood Typewriter Co. v. Sullivan, 196 Tenn. 238,
265 S.W.2d 549 (Tenn. 1954) (Tennessee employee training in Oklahoma killed in vehicle accident
on day off); Lumbermen’s Mut. Cas. Co. v. Dedmon, 196 Tenn. 94, 264 S.W.2d 567 (1954)
(Knoxville-based employee, who had finished a customer visit in Morristown, killed as he crossed
street after leaving a fishing tackle shop); Thornton v. RCA Serv., Inc., Co., 188 Tenn. 644, 221
S.W.2d 954 (1949) (employee stopped for lunch at highway restaurant between Norris and Knoxville
and was killed by “a stranger who was insane, or drunk ‘or otherwise irresponsible.’”).
In other jurisdictions, courts tend to look more closely at the nature of the activity involved.
Thus, while approving the use of an all-terrain vehicle as reasonable recreational activity for a
traveling employee, the court rejected compensability where the vehicle had been operated
recklessly. See, e.g,. Jensen v. Indus. Comm’n, 711 N.E.2d 1129 (Ill. App. Ct. 1999), appeal denied
720 N.E.2d 1093 (Ill. 1999). Similarly, depending upon the particular facts, the employee’s activity
was held to be a “distinct departure” or “deviation” from the employment, thereby relieving the
employer of liability. See, e.g., Silver Eng’g Works, Inc. v. Simmons, 505 P.2d 966 (Colo. 1973)
(en banc) (employee’s trip to beach where he drowned was deviation from his employment); Volk
v. Int’l Harvester Co., 106 N.W.2d 649 (Iowa 1960) (employee’s trip to neighboring town for social
visit constituted deviation from employment); Buczynski v. Indus. Comm’n of Utah, 934 P.2d 1169
(Utah Ct. App. 1997) (employee’s weekend social visit to town 150 miles from convention site prior
to convention’s start was “personal diversion” and injury in hotel hot tub was not compensable);
Carr v. Workmens’ Compensation Appeal Bd., 671 A.2d 780 (Pa. Commw. Ct. 1995) (employee’s
35-mile trip from the work site to Boston to go sightseeing and drinking was personal trip and not
part of employment) .
As stated in 2 Arthur Larson & Les K. Larson, Arthur Larson’s Workers’ Compensation
Laws, § 25.00 (1998), the majority rule is that “[a]n employee whose work entails travel away from
the employer’s premises is generally considered to be within the course of his or her employment
continuously during the trip, except when there is a distinct departure on a personal errand.”
-4-
We think the majority rule furnishes the proper analysis for determining the compensability
of injury or death of traveling employees. Therefore, in order to clarify the law in this state
regarding traveling employees, we now adopt the majority rule and hold that a traveling employee
is generally considered to be in the course of his or her employment continuously during the duration
of the entire trip, except when there is a distinct departure on a personal errand. Thus, under the rule
we today adopt, the injury or death of a traveling employee occurring while reasonably engaged in
a reasonable recreational or social activity arises out of and in the course of the employment.2
As we stated in Orman v. Williams Sonoma, Inc., “an injury arises out of and is in the course
and scope of employment if it has a rational connection to the work and occurs while the employee
is engaged in the duties of his employment.” 803 S.W.2d 672, 676 (Tenn. 1991 (citation omitted).
Because an employee who travels on the business of the employer is considered to be within the
course of his or her employment continuously during the trip, reasonable recreational activities
properly undertaken by the employee during the trip are rationally connected to the work.3 Thus,
injury or death occurring during a reasonable recreational activity arises out of and in the course of
the employment.
Under the rule adopted above and in light of the facts in the record, we conclude that the trial
court erred in granting summary judgment to the employer. Accordingly, we reverse the trial court’s
judgment and remand the case for further proceedings consistent with this opinion.4
The costs are taxed to the defendants, Glen Hatchett d/b/a Hatchett Brothers and Associates
of Fidelity & Casualty of New York.
2
We decline to adopt the “reasonable and foreseeable” standard used in some jurisdictions.
“Foreseeability” is typically a tort law concept; as we have previously stated, “[c]oncepts of
‘proximate cause’ or ‘foreseeability’ as utilized in the law of torts do not necessarily govern or define
coverage under the workers’ compensation statutes.” Jordan v. United Methodist Urban Ministries,
Inc., 740 S.W.2d 411 (Tenn. 1987).
3
But cf. Tucker v. Acme Boot Co., Inc., 856 S.W.2d 703 (Tenn. 1993); Jordan, 740 S.W.2d
at 412. While Tucker and Jordan also involved recreational activities of employees, those cases
pertain to non-traveling employees and are inapposite. Our holding in the pending case is not
intended to supplant or modify the principles applied to non-traveling employees under Tucker.
4
Our holding that the trial court erred in granting summary judgment should not be
interpreted as a factual finding by this Court that the death of King arose out of and in the course of
his employment. We express no opinion as to the ultimate result to be reached in this case after
remand.
-5-