Skinner v. Ogallala Public School District No. 1

Stephan, J.,

concurring.

I am in full agreement with the majority opinion, but I write separately to address the issue raised by the dissent. While it may seem incongruous to hold that Skinner, an employee of the District, is not subject to the Nebraska Workers’ Compensation Act even though her presence on school property at the time of her injury was at least in part for the benefit of the school, thus giving her the status of an invitee, I am satisfied that this is a *407correct application of established legal principles to the unique facts of this case.

Under the Nebraska Workers’ Compensation Act, a compensable injury is one “arising out of and in the course of’ employment. Neb. Rev. Stat. § 48-101 (Reissue 1998); Torres v. Aulick Leasing, 258 Neb. 859, 606 N.W.2d 98 (2000). The two phrases “arising out of’ and “in the course of’ in § 48-101 are conjunctive; in order to recover, a claimant must establish by a preponderance of the evidence that both conditions exist. Logsdon v. ISCO Co., 260 Neb. 624, 618 N.W.2d 667 (2000); Cox v. Fagen Inc., 249 Neb. 677, 545 N.W.2d 80 (1996). The “arising out of’ employment requirement is primarily concerned with causation of an injury. Id. The “in the course of’ requirement, the requirement at issue in this case, tests the “ ‘work connection as to time, place, and activity; that is, it demands that the injury be shown to have arisen within the time and space boundaries of the employment, and in the course of an activity whose purpose is related to the employment.’ ” (Emphasis supplied.) Id. at 682, 545 N.W.2d at 85, quoting Moore v. The Sisk Co., 216 Neb. 451, 343 N.W.2d 767 (1984). As the dissent notes, an injury is said to arise in the course of the employment when it takes place within the period of the employment, at a place where the employee reasonably may be, and while the employee is fulfilling work duties or engaged in doing something incidental thereto. 1 Arthur Larson & Lex K. Larson, Larson’s Workers’ Compensation Law § 12.00 (2001).

At the time of her injury, Skinner was assisting another school employee, her husband, with an activity directly related to his job duties. As the majority notes, her activities were therefore of some benefit to the District, and the trial court’s finding that she occupied the status of an invitee is not clearly erroneous. The dissent argues, however, that this invitee status precludes Skinner from falling outside the provisions of the Nebraska Workers’ Compensation Act. Specifically, the dissent contends that Skinner’s actions occurred in the course of her employment because teachers routinely help other teachers and the activity Skinner was assisting was not a matter entirely personal to her husband.

I agree that the return of the band property was not a matter personal to Skinner’s husband. It is precisely because she was *408assisting him in the performance of a task related to his job duties that her actions were of benefit to the District so as to confer upon her the status of an invitee. However, the fact that Skinner’s actions benefited the District does not automatically lead to the conclusion that her injury occurred “in the course of’ her employment. When asked in her deposition about her practice of assisting other teachers, Skinner testified as follows:

Q Okay. Teachers are usually fairly close-knit and help one another on a regular basis; is that right?
A I don’t think I could answer that.
Q Well, the teachers you know?
A Not all of them.
Q How about you? Do you feel that you go out of your way to help other teachers?
A Yes, I do.
Q Okay. And that’s what you were doing on July 16, 1996?
A I was helping my husband.
Q Okay. Who was a teacher — a fellow teacher?
A Who taught at the high school building, yes.
Q Okay. You would help him the same way you would have helped any other teacher; is that correct?
A Not at that time of day on July 16th, no.
Q You’ve never turned down another teacher during your 30 years, though, have you?
A Not if I was at the building prior to. I wouldn’t go there specifically to help them do that.

The evidence in this case thus establishes that it was not incidental to Skinner’s employment to assist other teachers at times when Skinner was not present at the school building in conjunction with her own duties. Furthermore, the record establishes that Skinner came to the school building on the evening of her injury solely for the personal reason of expediting preparations for a family vacation. Thus, although I recognize that the job duties of teachers do not fit neatly within precise boundaries, the evidence in this case clearly demonstrates that Skinner’s actions in assisting her husband were not incidental to her employment and were so removed from the time and space boundaries of that employment so as to not occur “in the course of’ her employment. Compare Cox v. *409Fagen Inc., 249 Neb. 677, 545 N.W.2d 80 (1996) (determining employee’s injury sustained while putting on coveralls during work hours occurred in course of employment).

In summary, because Skinner’s activities in the school building immediately prior to her injury were of some benefit to the District as the owner of the premises, she occupied the status of an invitee under the law then in effect. However, because the evidence presented reveals that Skinner’s injury occurred at a time when she was acting in a purely personal capacity, the injury did not occur “in the course of’ her employment.