“Coming and Going” Rule Used to Deny Workers’ Compensation Claim

An Ohio court has denied a workers’ compensation claim by an employee who was injured in a traffic accident while traveling to obtain paintbrushes to use at a job site.

The employee worked for a waterproofing company applying a special paint to newly constructed homes to waterproof the foundations. He received $50 plus mileage reimbursement for each house the employer assigned him to paint, and could typically complete five houses in a single day. His employer supplied the paintbrushes and paint. The employee obtained needed supplies at the headquarters but also stored some paint and paintbrushes at his house. He could also purchase supplies such as paintbrushes when needed and would be reimbursed.

On his day off, when the employee went to the headquarters to pick up his paycheck, his employer let him know that three jobs needed to be done that day. The employee’s brother was with him at the time. He decided to go home to pick up paintbrushes and then drop off his brother on the way to the job site. Before he reached his home to pick up the brushes, however, he was in an auto accident and sustained serious injuries.

The employee filed for and was granted workers’ compensation benefits after the accident, but the employer appealed. The employer lost at every administrative level, including at a hearing before the full Industrial Commission, which ultimately approved the prior allowances. The employer then appealed to the Franklin County Court of Common Pleas and won.

The employee then filed an appeal in the Tenth District Court, which analyzed the “coming and going” rule. According to this rule, an injured worker must prove that he or she was injured in the “course and scope of employment and that the injury arises out of the employment relationship.” The rule is “a tool used to determine whether an injury suffered by an employee in a traffic accident occurs ‘in the course of’ and ‘arises out of’ the employment relationship so as to constitute a compensable injury.”

The coming and going rule applies only to “fixed situs” employees, which are employees whose work location is assigned by the employer. An employee can be considered fixed situs even if the particular job location changes on a weekly or even daily basis. So long as the employee commences his or her substantial employment duties only after arriving at a “specific and identifiable workplace designated by the employer,” the employee will be considered fixed situs.

After determining that the claimant was a fixed situs employee, the court then analyzed whether the coming and going rule would be a bar to an allowance under the facts of the case. The court further determined that because the claimant was not required to store supplies at his house – but rather did so for his own convenience – he was not engaged in “substantial employment duties” when he travelled home to get the supplies. He did not begin his duties until he arrived at the job site. Accordingly, his accident did not occur within the course and scope of and arising out of the employment relationship.

The court also discussed exceptions to the coming and going rule that apply even to fixed situs employees. The “zone of employment” exception would permit an allowance for injury where the employee was injured in an area under the control of the employer, though perhaps not yet engaged in the performance of substantial job duties. A “special hazard” exception applies to employees who would not have been at the location of the injury but for the employment, and the employment itself creates a special risk “distinctive in nature or quantitatively greater than the risk common to the public.” The “special mission” exception applies when the injury is sustained by the employee while performing a special task, service, mission, or errand for his employer, even before or after customary working hours, or on a day on which he does not ordinarily work. Finally, a “totality of the circumstances” exception looks at all of the relevant factors of the accident to determine (1) the proximity of the scene of the accident to the place of employment, (2) the degree of control the employer had over the scene of the accident, and (3) the benefit the employer received from the injured employee’s presence at the scene of the accident.

The Tenth District Court found that none of the exceptions apply and upheld the trials court’s denial of benefits.

If you have an employee who has been injured while traveling to or from a job location, all of the facts must be carefully analyzed to determine whether you are likely to succeed in a challenge asserting the coming and going rule. Please do not hesitate to contact Ennis Britton to assist in that analysis.

Cunningham v. Bone Dry Waterproofing, Inc., 2016-Ohio-3341

Allegations Lead to Title IX Claim against School District

A U.S. District Court in Massachusetts has allowed a legal claim against city and school administrators for peer-on-peer sexual harassment under Title IX. Several of the plaintiff’s other claims were dismissed, but the Title IX harassment claim was allowed to proceed. The case will be pursued in the U.S. District Court.

Title IX of the Education Amendments of 1972 prohibits sex discrimination and harassment in education:

No person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving federal financial assistance.

In Harrington v. City of Attleboro, student Noelle Harrington alleges years of sexual harassment from school bullies and, along with her mother, is suing the school district. Harrington attended Brennan Middle School in Attleboro from 2008 to 2010, where she first experienced harassment from a student who repeatedly called Noelle offensive names related to her sex and to sexual stereotyping. Two other students joined in the name calling as well. The bullying escalated to a physical assault, resulting in bruising, a sprained ankle, and a fractured wrist. The Harringtons had notified school principals, assistant principals, and the school psychologist and were told that the problems would be dealt with. They also contacted the Attleboro Police Department, who said that this was a school issue and did not intervene.

The name calling and comments continued when Noelle went to Attleboro High School in 2010. As a matter of school policy, documentation of the boys’ conduct was not transferred from the middle school. Noelle was placed in classrooms with the same boys, and the harassment continued by them and other students as well. In January 2012 the school prepared a “Safety Plan” for Noelle, giving her the right to report harassment to administrators, to access the nurse “in times of stress,” and to leave class early in order to avoid the students in the hallways. In February 2012, the student who had physically assaulted Noelle in middle school followed her from the library to her home. When her mother told a school administrator, she was told that the school would not address this conduct because it occurred outside of school and off the school property. Also that month students shined a laser pointer into Noelle’s eyes. She went to the nurse, who contacted Noelle’s mother. The Harringtons again contacted the police department and were told that the school police officer would have to handle the complaint. The Harringtons allege that the school police officer failed to respond to their complaint. The Harringtons then informed school administrators that they wanted to transfer Noelle to another school but allege that the school did not assist in placing Noelle elsewhere. When Noelle posted on Facebook about suicide, her mother consulted a crisis team, who instructed Noelle not to return to the high school. Noelle was registered at a treatment center for psychotherapeutic care. Her mother withdrew her from school on March 1, 2012.

Harrington v. City of Attleboro is a Title IX claim on the basis of sexual harassment – which includes sexual stereotyping – in education. To state a claim under Title IX for student-on-student sexual harassment, a plaintiff must show the following elements:

  1. He or she was subject to “severe, pervasive, and objectively offensive” sexual harassment by a peer.
  2. The harassment caused the plaintiff to be deprived of educational opportunities or benefits.
  3. The funding recipient (the school) knew of the harassment.
  4. The harassment took place in school programming or activities.
  5. The school was deliberately indifferent to the harassment such that the response, or lack of a response, was unreasonable given the nature of the known circumstances.

In allowing this claim to proceed, the US District Court acknowledges that the Harringtons have a plausible Title IX claim. Allegations for sex-based discrimination must show that the harassment was because of the person’s sex. The court noted that the students’ conduct was severe, not just “tinged with offensive sexual connotations,” and appears to be based on sexual stereotyping, such as appearance, mannerisms, and sexual preference.

The standard of deliberate indifference is stringent and requires more than allegations that a school should have done more. However, the First Circuit has suggested that a school’s failure to take additional measures after its initial measures were ineffective might constitute deliberate indifference. In Harrington v. City of Attleboro, the district court allowed this Title IX claim because the Harringtons’ allegations suggest that the school “failed to take additional reasonable measures after it learned that its initial remedies were ineffective.”

What This Means to Your District

The standard of deliberate indifference is not simply a standard of doing nothing to prevent discrimination or harassment. A school may take action yet the action not be found reasonable given the known circumstances. As the known circumstances increase and intensify, the action the school takes should increase and intensify accordingly. Ennis Britton attorneys are available for consultation with Title IX issues as with other school-related issues.

Harrington v. City of Attleboro, — F.Supp.3d –, (D. Mass. 2016) 2016 WL 1065804