State v. Okafor

DEBORAH S. EYLER, J. Oliver O. Okafor, the appellee, is employed as a Trooper First Class by the Maryland State Police (“MSP”), an agency of the State of Maryland, the appellant. On January 25, 2013, while in uniform and driving to work in his own car, Trooper Okafor was involved in an automobile accident and sustained personal injuries. After Trooper Okafor successfully pursued a claim for benefits against the State before the Workers’ Compensation Commission (“Commission”), the State brought an action for judicial review in the Circuit Court for Baltimore County. It filed a motion for summary judgment, which was denied.

The case was tried to a jury, which found that Trooper Okafor had sustained an accidental injury arising out of and in the course of his employment. Judgment was entered, and the State filed a timely motion for judgment notwithstanding the verdict or new trial. The court denied the motion and this appeal followed. The State presents two questions for review, which we have combined and rephrased as follows: Did the circuit court err by declining to rule as a matter of law that Trooper Okafor’s accidental injury did not arise out of and in the course of his employment? 1 ²⁸³ For the reasons to follow, we shall affirm the judgment of the circuit court.

FACTS AND PROCEEDINGS At the relevant time, Trooper Okafor was working at the Forestville barrack, in Prince George’s County, and was living in Great Mills, St. Mary’s County, 50 miles away. It is the policy of the MSP to assign each Trooper a patrol car to use during work hours and also when off duty, including when driving to and from work. On January 24, 2013, the day before the accident, Trooper Okafor was working the 2 p.m. to midnight shift. He drove his patrol car to work and used it during work.

Late in the shift, it began to experience engine problems. He drove it to the College Park barrack, which houses the repair facility for all patrol cars belonging to the MSP. Repair facility workers determined that Trooper Oka-for’s patrol car needed to be left there for repair. Trooper Okafor routinely kept his personal vehicle, a 2008 Nissan Sentra, at the College Park barrack.

By the time he dropped his patrol car off it was the end of his shift. He drove his Sentra home. The next day, January 25, 2013, Trooper Okafor again was scheduled to work the 2 p.m. to midnight shift, at the Forest-ville barrack. He got up and dressed in his uniform, complete with service revolver, baton, hand radio, handcuffs, badge, and all required medals and insignia.

He left home in his Sentra and began the drive to the Forestville barrack. The Sentra was not fitted with a police radio, sirens, or any other police equipment. Trooper Okafor’s hand radio, which he wore on his shoulder, had a limited range of communication. Trooper Okafor was running late for work.

At 1:53 p.m., his Sentra was clipped by another vehicle; the impact caused Trooper Okafor to lose control of the Sentra, which left the roadway and collided with a tree. The site of the accident was ²⁸⁴ about 35 miles from the Forestville barrack. Trooper Okafor sustained injuries and was transported to a hospital for treatment. On February 20, 2013, Trooper Okafor filed a claim for benefits with the Commission.

The State filed contesting issues. A hearing was held on May 22, 2013. On July 15, 2013, the Commission issued an order that, as relevant, found that Trooper Okafor had sustained an accidental injury arising out of and in the course of his employment and that his claim was not barred by the “going and coming rule.” The Commission awarded Trooper Okafor temporary total disability benefits and medical expenses. As noted, the State brought an action for judicial review challenging the award.

After the parties engaged in discovery, the State filed a motion for summary judgment, which was denied. A jury trial was held on July 30, 2014. Two witnesses testified: Trooper Okafor and Lieutenant Roland Butler, who at the time of the accident was Trooper Okafor’s supervisor. Trooper Okafor, called adversely by the State, testified about the events as we have recounted them.

He stated that, when he dropped his patrol car off at the College Park barrack for repair on January 24, 2013, it was almost midnight and there were no other patrol cars available at that location for him to use. Trooper Okafor explained that when he is driving his own car, as opposed to a patrol car, he may arrest anyone he sees committing a felony, and he may stop and render aid if he happens upon an accident or other situation in which people need help. He may not make traffic stops, write tickets, or pursue vehicles in a chase. Lieutenant Butler also was called by the State.

His testimony largely was consistent with Trooper Okafor’s. He agreed that a Trooper driving his personal vehicle is not permitted to exercise police powers except to make an arrest upon witnessing a felony or to render aid. He acknowledged that when a Trooper who is off duty but in uniform and ²⁸⁵ driving his personal vehicle gets out of his vehicle, for instance to stop at a convenience store, he is a “billboard” for the Maryland State Police and, “in a sense,” is providing a service to the citizens of Maryland. He stated that a Trooper driving his own vehicle to work is not entitled to reimbursement for the cost of gasoline.

Lieutenant Butler did not testify that there was a patrol car available for Trooper Okafor to take upon turning his patrol car in at the College Park barrack late at night on January 24, 2013. He stated, however, that Troopers who turn their patrol cars in for repair often will contact other Troopers who are off duty or on vacation to borrow one of their patrol cars. He estimated that there were nine Troopers in the area of the College Park barrack from whom Trooper Okafor could have borrowed a patrol car that night. At the close of the State’s case, both parties moved for judgment.

The court denied the motions. Trooper Okafor then incorporated his own testimony and that of Lieutenant Butler into his case, moved the Commission’s order into evidence, and rested. The State renewed its motion for judgment, but the court reserved ruling on it. By special verdict, the jurors found that Trooper Okafor had sustained an accidental injury arising out of and in the course of his employment.

As noted, after judgment was entered affirming the Commission’s order in favor of Trooper Okafor, the State filed a motion for judgment notwithstanding the verdict or for new trial, which was denied. DISCUSSION (A) Under the Maryland Workers’ Compensation Act (“the Act”), “[w]hen [an employee] seeks compensation for an accidental personal injury under [Md.' Code (1999, 2008 Repl. Vol.), section 9-101(b)(l) of the Labor and Employment Article (“LE”) ] and [LE section 9-501], he or she must demonstrate that it both arose out of and in the course of the ²⁸⁶ employment.” Montgomery Cty. v. Wade, 345 Md. 1, 9 , 690 A.2d 990 (1997) (emphasis in original). “An injury arises out of employment when it results from some obligation, condition, or incident of employment.” Livering v. Richardson’s Restaurant, 374 Md. 566, 574 , 823 A.2d 687 (2003). Thus, “[ajrising out of’ refers “to the causal connection between the employment and the injury” sustained.

Roberts v. Montgomery Cty., 436 Md. 591, 604 , 84 A.3d 87 (2014). See also Arthur Larson, Workers’ Compensation Law § 3.05 (2015) (“An injury arises out of the employment if it would not have occurred but for the fact that the conditions and obligations of the employment placed [the employee] in the position where he or she was injured.”) (emphasis in original). An injury does not arise out of the employment if, absent additional facts, “the causative hazard is a common peril to which the public-at-large is exposed, not just the [employee.]” Richard Gilbert et al., Maryland Workers’ Compensation Handbook § 5.04 (4th ed. 2013) (citations omitted). Whether an injury occurred “in the course of’ employment is a function of the “time, place, and circumstances of the accident in relation to the employment.” Roberts, 436 Md. at 604 , 84 A.3d 87 ; Livering, 374 Md. at 577 , 823 A.2d 687 .

An injury occurs in the course of employment when it happens “during the period of employment at a place where the employee reasonably may be in performance of his or her duties and while fulfilling those duties or engaged in something incident thereto.” Wade, 345 Md. at 11 , 690 A.2d 990 . In deciding whether an injury occurred in the course of employment, “the entire sphere and period of employment may be considered and also whether the employee has placed himself outside his employment, and, if so, how far.” Knoche v. Cox, 282 Md. 447, 454 , 385 A.2d 1179 (1978) (citations omitted). This is a fact-specific inquiry. Md. Cas.

Co. v. Ins. Co. of N. Am., 248 Md. 704, 708 , 238 A.2d 88 (1968). Maryland case law is clear that an injury sustained by an employee while commuting to or from work is “not considered to arise out of and in the course of employment” ²⁸⁷ and therefore is not compensable. Roberts, 436 Md. at 606 , 84 A.3d 87 ; Morris v. Bd. of Educ. of Prince George’s Cty., 339 Md. 374, 379 , 663 A.2d 578 (1995); see also Rumple v. The Henry H. Meyer Co., Inc., 208 Md. 350, 357 , 118 A.2d 486 (1955).

This settled law is known as the “going and coming rule.” Its premise is that “hazards encountered by an employee while commuting to work are common to all workers, no matter what their job, and hence, such risks cannot be directly attributable to a person’s particular employment.” Morris, 339 Md. at 380 , 663 A.2d 578 . Over the years, the Maryland appellate courts have recognized several exceptions to the going and coming rule. In Board of County Commissioners v. Vache, 349 Md. 526, 532 , 709 A.2d 155 (1998), the Court of Appeals identified four primary exceptions. We shall discuss two of them-the free transportation and the special errand exceptions—infra.

The other two are the proximity exception and an exception for employee travel on a public street between two areas of the employer’s premises. 2 Additionally, there is the “own conveyance exception,” which applies when the employer requires the employee to furnish his or her own vehicle for work, see Morris, 339 Md. at 383 , 663 A.2d 578 ; the “employer conveyance exception,” which applies when the employer controls the means of transportation the employee uses to drive to and from work, see Watson v. Grimm, 200 Md. 461 , 90 A.2d 180 (1952); and the “dual purpose exception,” which we also shall discuss infra. Outside the ambit of the going and coming rule and its exceptions, the Court of Appeals has held that injuries sustained by an off duty police officer driving an assigned patrol car on a personal errand arise out of and in the course of employment when the primary purpose of driving the patrol ²⁸⁸ car is to benefit the employer police department. Wade, 345 Md. at 14 , 690 A.2d 990 . (B) The State contends the undisputed material facts entitled it to judgment as a matter of law, and therefore the court should have granted his motion for summary judgment, his motion for judgment at the close of the evidence, or his motion for judgment notwithstanding the verdict.

See Md. Rules 2-501, 2-519, and 2-532. It argues that Trooper Okafor was driving to work in his own car when the accident happened, so under the going and coming rule his injuries were not compensable, and none of the exceptions to that rule applied. And, because Trooper Okafor did not exercise his police powers during the ride, either by stopping a felony in progress or rendering aid, his drive to work was not for the benefit of the MSP, and consequently the Wade case does not support a finding that his injuries arose out of and in the course of his employment. In the factual portion of his brief, Trooper Okafor mentions that all of the exceptions to the going and coming rule applied.

His argument focuses on Wade , however. He maintains that because he could have taken action, albeit limited, to exercise his police powers during the drive to work, and he was in uniform, he was acting to the benefit of the MSP, and therefore his injuries were compensable. He emphasizes, moreover, that the Commission’s decision that his injuries arose out of and in the course of his employment was in evidence, and for that reason that issue was not subject to decision as a matter of law. (C) The State relies heavily on Mayor and City Council of Baltimore v. Jakelski, 45 Md.App. 7 , 410 A.2d 1116 (1980), to support its arguments on appeal.

We believe that reliance to be misplaced. Before explaining why, we must discuss the free transportation exception to the going and coming rule. ²⁸⁹ The free transportation exception first was recognized by the Court of Appeals in Harrison v. Central Construction Co., 135 Md. 170 , 108 A. 874 (1919). There, the employer contracted with its employees to provide free train transportation from Baltimore City, where they lived, to its construction site in northeastern Baltimore County, where they worked. One day, the employee in question was injured when he was attempting to get on the free train.

He applied to the Commission for compensation, unsuccessfully. The circuit court upheld the denial. The Court of Appeals reversed, holding that the going and coming rule did not preclude the employee from receiving benefits. The Court explained: [Wjhere the workman is employed to work at a certain place, and as a part of his contract of employment there is an agreement that his employer shall furnish him free transportation to or from his work the period of service continues during the time of transportation, and if an injury occurs during the course of transportation it is held to have arisen out of and in the course of the employment. 135 Md. at 177-78 , 108 A. 874 .

In Ryan v. Kasakeris, 38 Md.App. 317 , 381 A.2d 294 (1977), this Court comprehensively analyzed the body of free transportation cases that developed after Harrison . The issue in Ryan was whether injuries a cleaning lady suffered while crossing the street from her bus stop to the house of the family who employed her were compensable. When the cleaning lady first was employed by the family, the wife drove her to and from work every work day. That arrangement later became unmanageable because it conflicted with the wife’s child care responsibilities.

To accommodate the family, the arrangement was changed so the cleaning lady would ride the bus to and from work and the family would pay for her bus transportation. We gleaned from our analysis of the free transportation exception cases that the terms of the employment contract dictate whether the exception will apply. We explained: ²⁹⁰ [A]n injury occurring while an employee is on his way to or from work, which otherwise would be noncompensable as being the result of normal hazards unconnected with the employment, becomes compensable only if, under the terms of the employment, the employer is under some obligation to provide the transportation to the employee. It is that underlying obligation which brings the travel within the scope of the employment.

Where that obligation exists, the method of carrying it out becomes irrelevant; but where it does not exist, there is no coverage under this exception. 38 Md.App. at 328-29 , 381 A.2d 294 (emphasis added). We cautioned that the employer’s mere reimbursement of the employee’s transportation expenses is not, in and of itself, sufficient to extend coverage to the period of travel to and from work; rather, there must be an obligation under the employment agreement for the employer to furnish transportation to and from work. The contractual obligation may be performed by paying for transportation costs, but payment of those costs without such an underlying obligation does not trigger the free transportation exception. In light of the employment agreement between the cleaning lady and her employer family, we held that the free transportation exception applied.

From the outset, the family had agreed to provide the cleaning lady with transportation to and from work as part of her employment. The mode of transportation only was changed from car to bus for the family’s convenience. The family’s payment for bus fare was not merely a reimbursement but was the means by which it performed its contractual obligation to provide the cleaning lady free transportation. We concluded, moreover, that the fact that the cleaning lady was injured after she got off the bus and while she was walking from the bus stop to the family’s house did not take her injuries out of the free transportation exception.

The very rationale of the “free transportation” doctrine is that the travel is part of the employment, that the day’s employment therefore commences when the employee starts ²⁹¹ on the course of his journey, and that the employee is performing his job-related duties while in transit. Upon that premise, at least from the time [the cleaning lady] stepped on the bus, she was in the course of her day’s employment. That being so, [the cleaning lady], during the course of her walk from the bus stop to the [family’s] home, was “at a place where (s)he reasonably may be in the performance of (her) duties.” If she was working for [the family] while she was riding the bus, she was also working for [the family] when crossing the street. Id. at 333-34 , 381 A.2d 294 (quoting Pariser Bakery v. Koontz, 239 Md. 586, 590 , 212 A.2d 324 (1965)) (footnotes omitted).

In Maryland Casualty Co. v. Lorkovic, 100 Md.App. 333 , 641 A.2d 924 (1994), we were faced with the question whether the going and coming rule precluded the employee from receiving workers’ compensation benefits for injuries he sustained in an automobile accident while he was driving his own car from the airport to his house after a business trip. The evidence showed that it was the employer’s policy to pay all the travel expenses the employee incurred while he was on business trips, including airfare and mileage to and from his home and the airport. We concluded that this policy and the employer’s history of making these payments was “a sufficient ‘custom of the employer’ to infer that [the employer] agreed to provide transportation for [the employee] at the time of his accident.” Id. at 356 , 641 A.2d 924 (quoting Watson, 200 Md. at 470 , 90 A.2d 180 ). Therefore, the employer’s injuries were compensable under the free transportation exception to the going and coming rule.

We return to Jakelski , which, as noted, the