dissenting.
I respectfully disagree with the majority's conclusion that Knoy's motion to dismiss was properly denied, and therefore dissent.
The erux of the matter in this case is whether the clean-up event organized by Gemtron was such that the injury suffered by Cary while working there may be deemed to have occurred in the seope and course of his employment. The parties and the members of this court all agree that the resolution of this case turns upon our supreme court's decision in Noble v. Zimmerman, 287 Ind. 556, 146 N.E.2d 828 (1957), and our subsequent decisions in Ski World, Inc. v. Fife, 489 N.E.2d 72 (Ind.Ct.App.1986) and Weldy v. Kline, 616 N.E.2d 398 (Ind.Ct.App.1993). Those cases set forth the parameters of the meaning of "arises out of employment" and "in the course of employment" in this context. Both components, of course, are prerequisites to the ruling Knoy seeks, i.e., that the Worker's Compensation Act applies and the trial court is without jurisdiction to preside over this tort action. The majority concludes, after reviewing Noble, Ski World, and Weldy, that Cary's injuries neither arose out of his employment at Gemtron nor occurred in the course of his employment there. My reading of those cases leads me to the opposite conclusion.
In a nutshell, the majority concludes on the first component that Cary's injuries did not arise out of his employment because Gemtron employee attendance at the clean-up was "voluntary", as opposed to "expected." Skip op. at 577. I cannot find in Noble, Ski World, and Weldy a discussion that sheds light on the distinction between "voluntary" and "expected" in this context. Indeed, it appears to me that the line between the two is not a bright one and that the difference is one of degree. As I read them, all three of the cases involve injuries that, as here, occurred during an activity or event that could not in any sense have been described as compulsory.
In Noble, the ultimately fatal injury occurred while the decedent was diving into a lake following a business meeting. Although attendance at the business meeting was described as having been more or less mandatory, the recreational activities that followed, including swimming in the lake, were not. In Ski World, a ski resort employee was injured while tubing at an after-hours party at the resort. Interestingly, attendance at that party was not mandatory, but the court stated that it was "encouraged and therefore presumably expected[.]" Ski World, Inc. v. Fife, 489 N.E.2d at 77. The blurring of the lines was most obvious in Weldy v. Kline, 616 N.E.2d at 405, where the court stated, "Attendance was voluntary, but encouraged[.]"
After reviewing the aforementioned precedent, I am unable to read the instant facts in such a way as to draw a meaningful distinction that would explain why the injuries in those cases arose out of the employment, but Cary's did not. True, attendance at the clean-up was voluntary in the sense that the failure to attend would not have subjected Cary to the threat of sanctions or reprisals. The same can be said of the after-hours, employer activities in Ski World and Weldy, however. In those cases, we interpreted the employer's activities as encouraging attendance. Such "encouragement" was deemed sufficient to satisfy the "arise out of" requirement.
In the instant case, Gemtron posted notices on its bulletin boards announcing the clean-up activity and inviting its employees to participate. Moreover, it supplied the employees with work gloves and other equipment, and provided food and bever*580ages to those who attended as well. I cannot say whether these inducements, considered in a vacuum, would constitute "encouragement". This question does not arise in a vacuum, however, but rather in the context of the holdings in Noble, Ski World, and Weldy. It is clear to me that applying the same principles here as were applied in those cases, especially with respect to the latter two cases, leads to the same conclusion we reached in those cases, i.e., that the after-hours activity arose out of the employment.
In the second part of its analysis, the majority concludes that Gemtron's motive in promoting the clean-up activity was merely altruistic in nature ("a desire to clean up the environment in the areas where it operated", slip op. at 578) and not "a matter of business", Weldy v. Kline, 616 N.E.2d at 404, such as would confer coverage under the Worker's Compensation Act, I believe that evidence of the requisite business motive in the instant case is just as compelling as was the evidence that led the courts to conclude such motivation was present in Ski World and Weldy. In Wel-dy, the court found a business motivation based partially upon the facts that attendance was voluntary but encouraged, that the employer supplied food, and the purpose of the party was to generate good will among the employees and to otherwise benefit the employer. The court concluded that these cireunmstances demonstrated a clear nexus between the work activities and the recreational activities that caused the employee's death. In Ski World, the court concluded that a business motivation existed where the employer encouraged its employees to attend the party and provided refreshments.
In the instant case, there was evidence that the clean-up was part of Gemtron's Customer Oriented Master Plan, which outlined the company's goals in a variety of areas. One such goal was to "[plartici-pate with applicable local environmental groups or activities." Transcript at 9. Although Gemtron's motivation in conceiving and implementing such a plan may well have been partially altruistic, surely it cannot be argued that it was not also in its best business interests to be involved in such local community projects. In my view, Gemtron's concerted effort to publicize its clean-up project in the local media underscores the fact that one of the main purposes of the activity was to enhance its image and reputation in the community of which it was a citizen. Fostering good will with the public was certainly in Gemtron's best business interests.
In summary, Gemtron encouraged its employees to attend the clean-up activities, provided gloves for them, and also provided food and beverages to those who showed up to work. Gemtron's sponsorship of and participation in the event served its best business interests by enhancing its image and thereby fostering a good relationship with the local community. These facts are sufficient to establish that there was a direct nexus between Cary's employer, Gemtron, and the event at which Cary was injured so as to render Cary's activities there within the seope and course of his employment. Thus, Cary's exclusive remedy lay in the Worker's Compensation Act, and the trial court did not have subject matter jurisdiction over Cary's complaint. I would reverse and remand with instructions to grant Knoy's motion and dismiss Cary's action.