Mulready v. University Research Corp.

RODOWSKY, Judge. While attending a seminar in Canada on behalf of her employer, the petitioner, Patricia Mulready (Mulready), was injured when she slipped in her hotel bathtub. This case presents the issue of whether her injury is compensable under the Workers’ Compensation Act (the Act), Maryland Code (1991, 1999 Repl.Vol.), Title 9 of the Labor and Employment Article. 1 We shall hold that the injury is compensable, as explained below. The Workers’ Compensation Commission (the Commission) determined that Mulready sustained a compensable injury.

The employer, University Research Corporation, and insurer, Hartford Underwriters Insurance Company (collectively “Employer”), sought review by the Circuit Court for Montgomery County where both sides moved for summary judgment. In its cross-motion, the Employer stipulated to the facts set forth by Mulready in her motion. They are: “On May 31, 1995, while on a seminar in Canada with the Employer, the Claimant, Patricia Mulready, slipped in a bathtub at a hotel. “Ms. Mulready was a dissemination coordinator and worked long hours at the seminar in her position. The hotel was paid for by the Employer, selected by the Employer, and she was told to be at that particular hotel.

On May 31, 1995, there was a meeting at ten o’clock a.m. to be attended ⁵⁴ by many people in close quarters in a conference room. She was to take an active part in that meeting. She got up early, and was working on her preparation for the meeting. “At about nine o’clock a.m., she went to take a shower in order to be presentable, and she slipped in the bathtub. At her home, there was a bath mat to prevent slippage, soap dish and ceramic in the wall, and a towel rack also ceramic in the wall.

These are the things she could have grabbed on to. The Canadian bathtub was very slippery and did not have any of these items on the wall, nor did it have a bath mat or the sandy strips that are found in other bathtubs to prevent slippage.” The circuit court granted the Employer’s motion and reversed the award. Mulready appealed to the Court of Special Appeals which affirmed the circuit court’s judgment. Mulready v. University Research Corp., 128 Md.App. 392 , 738 A.2d 331 (1999).

Relying on Klein v. Terra Chemicals International, Inc., 14 Md.App. 172 , 286 A.2d 568 , cert. denied, 265 Md. 740 (1972), described infra, the court held that the requisite “ ‘causal connection between the conditions under which the work is required to be performed and the ensuing injury1 ” was lacking because “there was no unusual or extraordinary condition of [Mulready’s] employment that caused her to bathe or to expose herself to the hazards of bathing differently than most people concerned about their appearance and hygiene.” Mulready, 128 Md.App. at 396, 397 , 738 A.2d at 333 , 334 (quoting Klein, 14 Md.App. at 176 , 286 A.2d at 570 ). This Court issued a writ of certiorari. Mulready v. University Research Corp., 357 Md. 233 , 743 A.2d 245 (2000). The parties agree that Mulready was acting in the course of her employment at the time of injury.

The issue before us is whether the injury was one “that arises out of’ her employment. § 9-101(b)(1). Thus, the employer disagrees with the rule stated in 2 A. Larson & L.K. Larson, Larson’s Workers’ ⁵⁵ Compensation Law § 25.01, at 1-2 (2000) (Larson’s), which reads: “Employees whose work entails travel away from the employer’s premises are held in the majority of jurisdictions to be within the course of their employment continuously during the trip, except when a distinct departure on a personal errand is shown. Thus, injuries arising out of the necessity of sleeping in hotels or eating in restaurants away from home are usually held compensable.” (Footnote omitted). An early attempt in Maryland to flesh out the “arising out of’ concept is found in Weston-Dodson Co. v. Carl, 156 Md. 535 , 144 A. 708 (1929).

There the claimant, a salesman, after meeting in his home with his employer’s credit manager, was struck by a car in the street outside of the home while the claimant was walking with the credit manager to the latter’s car. This Court held that the issue of accidental injury presented a question of fact and, accordingly, affirmed a judgment entered on a jury verdict in favor of the claimant. The Court in Weston-Dodson found that courts generally had accepted the language of a Massachusetts case, reading in part: “ ‘[A]n injury ... “arises out of’ the employment when there is apparent to the rational mind, upon consideration of all the circumstances, a causal connection between the conditions under which the work is required to be performed and the resulting injury. Under this test, if the injury can be seen to have followed as a natural incident of the work and to have been contemplated by a reasonable person familiar with the whole situation as a result of the exposure occasioned by the employment, then it arises “out of’ the employment.

But it excludes an injury which cannot fairly be traced to the employment as a contributing proximate cause, and which comes from a hazard to which the workman would have been equally exposed apart from the employment.’ ” Id. at 538 , 144 A. at 709 (quoting In re Employers’ Liab. Assurance Corp., 215 Mass. 497 , 102 N.E. 697 (1913) (McNicol’s Case)). ⁵⁶ Weston-Dodson was decided at a time when the Act specifically listed so-called extra hazardous employments, and salesmen had been added to that list. A motion for reconsideration was filed by the employer in Weston-Dodson pointing out that the employer had requested an instruction that the verdict must be for the employer “if it should be found that [the claimant’s] injury came from a danger which was not peculiar to his work, but common to all persons who might have occasion to use the roads____” Id. at 541, 144 A. at 710 . In response to that motion the Court said that, since the claimant was acting in the course of his employment and was injured in an ordinary street accident, the injury was compensable because the amendment adding salesmen to the Act “necessarily included, 'within the risks covered, dangers of traffic accidents which might equally be incurred by others on the roads, without relation to their employment.” Id.

An “arising out of’ issue was also presented in Knoche v. Cox, 282 Md. 447 , 385 A.2d 1179 (1978), where the Court held, as a matter of law, that a dental hygienist’s fatal injury arose out of her employment. She had been killed when the dentist for whom she worked accidentally fired a gun that he had been showing to a patient. The bullet passed through a wall and struck the hygienist as she was cleaning up dental powder spilled on the floor. Id. at 449 , 385 A.2d at 1180 .

Surveying Maryland cases on the meaning of “arising out of,” the Court explained that “ ‘it is not necessary that there should exist a direct, active, or physical connection between the act causing the accident and the employment, but it is sufficient if the accident ... arises directly out of circumstances which the servant had to encounter because of his special exposure to the risks that, although external, were incidental to his employment.’ ” Id. at 456 , 385 A.2d at 1183 (quoting Boteler v. Gardiner-Buick Co., 164 Md. 478, 482 , 165 A. 611, 613 (1933)). Answers to the questions “[w]hy [the dentist] had the pistol in his office, why he was handling it at that particular time, the knowledge or lack of knowledge of [the hygienist] of the pistol’s presence in the office, [and the dentist’s] admitted ⁵⁷ negligence in its discharge” were immaterial. Id. at 456-57, 385 A.2d at 1184 . Instead, the relevant facts were that the hygienist “had not stepped aside from her employment; she was not guilty of any deviation from her duties; she was exposed to the injury she suffered by reason of her employment.” Id. at 457 , 385 A.2d at 1184 .

Thus, Knoche indicates that the term “arises out of’ requires, not that the performance of an employment-related task be the direct or physical cause of the injury, but, more broadly, that the injury be incidental to the employment, such that it was by reason of the employment that the employee was exposed to the risk resulting in the injury. See also Sica v. Retail Credit Co., 245 Md. 606 , 227 A.2d 33 (1967) (injuries sustained by diving into shallow water during an employer-sponsored outing held compensable). As noted, the Court of Special Appeals in the instant case relied on Klein, 14 Md.App. 172 , 286 A.2d 568 , in affirming summary judgment in favor of the Employer. In this Court, the Employer likewise bottoms its argument on Klein .

Mul-ready, on the other hand, looks to out-of-state cases holding that injuries suffered by employees in hotels while traveling on business are compensable. The employee in Klein worked as a consultant for a chemical company. His job included attending, at the employer’s expense, conferences and conventions in order to develop business. One evening during a conference Klein was dining in a public restaurant with representatives of two potential customers.

Klein choked on his food, suffered cardio-respira-tory arrest, and died. The workers’ compensation claim came to the Court of Special Appeals on an appeal from a judgment, rendered as a matter of law by a circuit court, which reversed a Commission award. Klein affirmed that reversal. The Court of Special Appeals held that the injury lacked the requisite causal connection to Klein’s employment.

This was because the “risk he encountered in the public restaurant of choking on a piece of meat was no greater or different in degree because of his employment than the risk experienced ⁵⁸ by all persons engaged in the process of eating a meal, whether in a restaurant or at home,” despite the fact that “his employment necessitated his eating in a public restaurant.” Id. at 176-77 , 286 A.2d at 570-71 . The court rejected the argument that, because traveling “create[s] ... the necessity of eating in public restaurants,” Klein’s injury was compensable. Id. at 177 , 286 A.2d at 571 . The court reasoned that: “To accept such generalizations would be to ignore the clear and meaningful distinction between the essential factors of ‘arising out of and ‘in the course of employment, and to accord traveling employees more favorable treatment than other employees.

More than that, it would do violence to the general proposition that workmen, like other members of the general public, are not insured against the common perils of life.” Id. at 177-78 , 286 A.2d at 571 . On this basis, the Klein court rejected a test used in other jurisdictions and proposed by the employee according to which “an injury is compensable if it would not have happened but for the fact that the conditions or obligations of the employment placed the workman in the position where he was injured.” Id. at 179 , 286 A.2d at 572 . According to the Klein court, this rejected test encompassed only the requirement that an injury occur in the course of employment, whereas exposure to some risk that is not “common to the public” is necessary to satisfy the requirement that the injury arise out of employment. Id.

Finally, the court rejected the applicability of cases such as Weston-Dodson, 156 Md. 535 , 144 A. 708 , in which injuries suffered by salesmen in car accidents were held to arise out of their employment. The Klein court believed the rationale of such cases to be that these employees “are overexposed or exposed to a peculiar and abnormal degree to traffic hazards distinct from and beyond that to which the general public is exposed.” Klein, 14 Md.App. at 178 , 286 A.2d at 571 . Applying Klein to the instant case, the Court of Special Appeals likewise determined that “there was no unusual or ⁵⁹ extraordinary condition of [Mulready’s] employment that caused her to bathe or to expose herself to the hazards of bathing differently than most people concerned about their appearance and hygiene.” Mulready, 128 Md.App. at 397 , 738 A.2d at 334 . The court likewise rejected out-of-state cases cited by Mulready and holding that bathtub injuries suffered by traveling employees arise out of employment, on the ground that “[t]he courts in those decisions, in essence, treated the concept of ‘arising out of essentially the same as the concept of ‘in the course of.’ The courts required only that, in the course of work, the claimant was brought within range of the particular peril.

As discussed in Klein , in our view, that is not the law of Maryland.” Id. at 398, 738 A.2d at 334 . Klein is contrary to the majority, “traveling employee” rule. See Larson’s § 25.01, quoted supra. Larson’s adds, however, that “[t]he greatest difficulty arises when the question is whether a traveling employee should receive compensation for injuries due to slipping in the bathtub in a hotel, cutting oneself with a razor, or being hurt while getting a haircut or calling for one’s laundry.” Id. § 25.04, at 6.

In our view the difficulty arises because there are, in general, two tests for determining “arising out of’ causation. We shall refer to them by the terminology used in Olinger Construction Co. v. Mosbey, 427 N.E.2d 910 (Ind.Ct.App.1981), namely, the positional-risk test and the increased risk test. The increased risk test requires that “the employee be exposed to a quantitatively greater degree of risk than the general public.” Id. at 913 . Under the positional-risk test, “an injury arises out of employment if it would not have occurred if the employee’s job had not required him to be in the place where he was injured.” Id.

In Olinger Construction Co., an employee of a construction company was staying in a motel adjacent to the job site which was some 150 miles from the employee’s home. The employee was stabbed to death in his motel room by a former co-worker who had been fired four ⁶⁰ days before. The Indiana court noted that previous decisions in that state had adopted the positional-risk test, although not explicitly under that name, such that “the rule in Indiana [is] that an accident which befalls a traveling employee arises out of the employment if the employee is at the place where the accident occurs because of his employment.” Id. at 914 . On the basis that Mosbey was a traveling employee who was required to stay in a motel and that he was there in order to discharge his duties, the court, over a dissent, 2 affirmed the award of compensation. 3 In Wiseman v. Industrial Accident Commission, 46 Cal.2d 570 , 297 P.2d 649 (1956) (in bank), the employee was a bank vice president who traveled to New York on business at the bank’s expense.

The employee and a “woman, not his wife but registered as such” died in a fire caused by careless