Wednesday, March 4, 2009

Be a Hero on Your Own Time

No good deed goes unpunished. Especially if you work in Arkansas.

McDonald’s employee Nigel Haskett took action when he noticed a woman getting smacked in the face in the Arkansas store where he was working. Video captured him throwing the attacker out of the store. Outside the attacker took a gun out of his car and shot Haskett three times in the chest and stomach.

Haskett lived. The judge who sentenced the attacker called him a hero. McDonald's got the benefit of the goodwill and public relations bonanza. What did Nigel get? Medical bills totalling $300,000. His claim was denied by the managers of the McDonald's own-risk insurance trust. They say it did not arise out of and in the course of his employment because rescuing customers is not part of his regular duties.

The case is plodding its way through the Arkansas workers' comp system, and Haskett hopes he will prevail after a long legal battle.

If this had happened to Nigel in Oklahoma, would his claim be compensable? Probably not.

Only a few cases address whether emergency acts outside the worker's regular duties are within the course and scope of employment. Compensable injuries may arise from emergencies if the worker is injured while 1) protecting the employer's property from harm; 2) protecting passengers on a public conveyance; or 3) helping a coworker, even one hired by another company but working with the claimant on the same job site.

But, Nigel would fare no better in Oklahoma under the 1972 decision in White v. Milk Producers, Inc., 1972 OK 48, 496 P.2d 1172. Alma White was injured while assisting someone injured in an automobile accident in the parking lot of the shopping center where the she worked (parking lots are part of the business premises). Her place of injury was in front of a store adjoining the store where she worked. The Supreme Court held that this was solely a volunteer act, having nothing to do with employment or with the furtherance of the her employer's interests, and a denial of benefits was sustained. The Supreme Court praised claimant for being a good citizen, but denied the claim because she was acting as a volunteer.

This case needs to be reexamined in light of the 1985 amendments that permit claims that arise from acts that are not "purely personal." The actions of good samaritans are the ultimate selfless, not personal or "purely personal," acts. The question should be whether such acts have a connection to the business of the employer.

Florida is one of the states that allows deviation from scope of employment when "such deviation or act is in response to an emergency and designed to save life or property."

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