Wednesday, July 2, 2008

Personal Comfort Mission: Nature Calls

K-Mart Corporation v. Herring, 2008 OK 75, __ P.3d __, presents the two-pronged question of compensability: can the injured worker show that his injuries occurred "in the course of" and "arose out of" the employment.

On May 12, 2006, K-Mart had an outdoor sale, and Mark Herring volunteered to watch the merchandise overnight while the store was closed. He arrived at 10:45pm, and the night manager instructed him to go to the nearest convenience store if he "had any issues with anything, or needed anything." When he took his station, the store closed and he became the lone employee.

About 3:15 a.m., Herring felt the call of nature. The nearest convenience store was closed, so he drove on to a nearby McDonald's to get a burger and use the restroom. While stopped in the drive-thru a carjacker shot him in the face.

The trial court denied the claim. The three-judge panel reversed with instructions to find claimant was involved in a special task and on a personal comfort mission. The trial court's new finding of compensability was appealed to the COCA which reinstated the denial order. The Supreme Court reversed the COCA and found the claim compensabe.

First issue: in the course of employment. "An employee is in the course of employment if carrying out the employer's purposes or advancing, either directly or indirectly, the employer's interest. An employee's ministration to personal comfort and needs is an incident to the employment because it provides an indirect benefit to the employer. This rationale is the basis of the personal comfort mission rule, which allows recovery for injuries incurred while an employee is ministering to his personal needs during the hours of employment." K-Mart Corporation v. Herring, ¶14, __ P.3d __ (citing Richey v. Commander Mills, Inc., 1974 OK 47, 521 P.2d 805 and City Bus Co. v. Lockhart, 1951 OK 86, 229 P.2d 586}.

In its fact-finding the Supreme Court held at ¶20: "K-Mart created the necessity of Herring having to leave the premises to use the restroom. It knew he would have to leave to attend his personal needs and instructed him to go the nearest convenience store if he had any issues. Since the nearest convenience store was closed, it is not unreasonable that Herring went to another location to take care of his personal comfort needs. Under the unique conditions of his employment, there is evidence in the record that Herring was in the time and space limitations of his employment and was in the course of an activity incident to his employment"

Second issue: arising out of employment. "An injury arises out of the employment when there is a causal connection between the condition under which the work is to be performed and the resulting injury." Id. at ¶21. Being shot by an unknown assailant is a neutral risk (not a purely employment risk and not a purely personal risk). To assess whether a neutral risk arises out of employment, Oklahoma uses the increased-risk test. Did the employment expose the claimant to a risk greater than that to which the general public was exposed?

In this case the Court held that Herring was subjected to a heightened risk of injury. "There is evidence in the record that the employment conditions exposed Herring to more risks of injury from an act of violence than that of the general public because of the time of the employment, the type of employment, and the necessity of going to either a convenience store, fast food establishment, or a similar business to attend his personal needs." Id. at ¶25.

This is a highly readable opinion by Justice Steven W. Taylor that clearly illustrates the primal issue of workers' compensation, whether the injury is work-connected. Other cases involving personal comfort missions can be found on my website.


  1. If the employer told him to stay on-site the entire night. Asked him to bring his food and use some on-site facility for his "disposal"- would/should the decision be the same?

  2. No --- because he wouldn't have been shot in the face by a carjacker! Seriously, the result probably would be the same. If he is attacked or injured by someone trying to steal the sale items, he is on the business premises and compensable unless the attack is purely personal. For more information on break periods and personal comfort missions, see my website under the topics for break periods and personal comfort missions.