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Robertson v. Cardi Corp.5/31/2005
control by the employer of the route taken by the employee and whether the risk to which the employee is exposed is common to the general public.
In DiLibero, the employee was a laborer working on the construction of a water system along several miles of public highway. A large portion of the highway was closed to public traffic because different parts of the highway were in different stages of construction. The employee finished his work shift and was walking through the construction site on his way home when he fell in a trench. The path traveled by the employee was the only way to exit the section of highway where he was working.
The Rhode Island Supreme Court affirmed the trial justice who granted the employee's petition for workers' compensation benefits. The court noted that the employee was at a place where the employer would reasonably expect him to be because the accident occurred in an area controlled by the employer which was near the place the employee was actually working. In addition, the employee was fulfilling the duties of his employment or doing something incidental thereto because ". . . he was promptly going home, without deviation, along the only available route by which he could leave the premises where he had actually been working and which were under the control of the respondent. The accident therefore was clearly in the course of the employment. . . ." Id. at 517, 9 A.2d at 851.
In further explaining why the injury sustained by the employee in DiLibero was an exception to the "going and coming" rule, the Court stated:
"The petitioner's employment called for actual work in this area and in or upon this highway. The extent of the area or field of employment found by the trial justice to be under the respondent's control was reasonably defined and not unreasonably extended.
The causative danger or hazard was not common to the public generally, as stated in many of the cases cited, but was one peculiar to the nature of the petitioner's employment, which then called for him to be in and upon the highways of this particular area, which was obstructed." Id. at 517, 9 A.2d at 851.
In the present case before the Appellate Division, the employer clearly did not have control over the northbound left lane of Route 95. There were apparently some warning signs indicating the area of construction, but this certainly does not rise to the level of having control of the travel lane. Furthermore, the hazard of traveling in the high speed lane, or anywhere on the highway, is a danger and hazard to the public in general. The fact that the employee must travel on the public highway and slow down and exit the highway at some point is not such a unique risk or danger associated only with his employment that would warrant an exception to the general rule regarding traveling to and from work.
In order to qualify for workers' compensation benefits, an accident while traveling on the public highways generally should be at the direction, express or implied, of the employer, or bestow some benefit on the employer beyond the mere fact of the employee's arrival at the workplace. Travel to work for the simple purpose of arriving at work cannot be considered fulfilling one's job duties or performing some task incidental to those duties or the conditions under which those duties are to be performed.
In a rare exception to the "going and coming" rule, the Rhode Island Supreme Court granted benefits to a visiting nurse who was severely injured in a motor vehicle accident while traveling from one (1) client's home to another. The employee was not paid for travel time or reimbursed for any travel expenses. However, the Court
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