S.D. Top Court doesn’t See ‘Arising Out Of’ or ‘In Course Of’ for Tech’s Side Hustle Detour

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Although an employer was fine with employees taking personal stops on business trips, such latitude for self-care did not extend to doing work for other employers. Simply Research subscribers have access to the full text of the decision.

Case

Terveen v. South Dakota Department of Transportation, No. 27097-a-DG (S.D. 03/04/2015)

What Happened

A journey transportation technician for the South Dakota Department of Transportation was on a business trip when he was injured in a car accident. After the accident, the technician's Blackberry was recovered, and it was on a website showing a repossession order. Along with his DOT job, the technician occasionally worked for another employer repossessing vehicles.

To repossess a vehicle, the technician would have had to have an order for repossession and a truck from the other employer's office, but at the time of the accident, the technician was in possession of neither.

There was no DOT policy prohibiting employees from making stops along their travel routes, and DOT allowed its employees to engage in certain personal activities during their work-related trips.

The technician applied for workers' compensation benefits, and the Department of Labor determined that he sustained an injury arising out of and in the course of his employment. The DOT appealed, and the circuit reversed the decision. The technician appealed to the South Dakota Supreme Court, arguing that the circuit court erred in holding that his accident and resulting injuries did not arise out of and in the course of his employment with the DOT.

Rule of Law

In South Dakota, an injury arises out of employment if:

(1) The employment contributes to causing the injury.

(2) The activity is one in which the employee might reasonably engage.

(3) The activity brings about the disability upon which compensation is based.

An employee is acting "in the course of employment" when the employee is doing something that is either naturally or incidentally related to his employment or which he is either expressly or impliedly authorized to do by the contract or nature of employment.

What the South Dakota Supreme Court Said

The South Dakota Supreme Court ruled that the technician's injury did not arise out of his employment.

"While DOT had condoned deviations in the form of personal trips to see family or friends and shopping trips ... , DOT has not authorized trips to further employment for another employer, as is likely in this case," the court wrote. "It should not be reasonably expected for an employee to engage in activities to promote another employer and have the first employer be liable for injuries sustained during that time."

Regarding whether the technician was in the course of employment at the time of the wreck, the court explained that he was not engaging in an activity naturally or incidentally related to his employment with DOT.

"The purpose of [the technician's] detour was not incidental to his employment with DOT as the trip was not related to self-care activities," the court wrote.

Likewise, although DOT allowed employees to make personal errands while working, DOT did not authorize employees to deviate from their work to serve the interest of another employer, the court explained.

The court rejected the technician's argument that because he was returning to the route he was on for work, that he was acting in the course of his employment.

According to the court, an employee who makes a personal side trip must "get back on the beam" before being deemed to have resumed the business trip.

Thus, the court found that the technician's deviation was not insubstantial and he had failed to resume his business trip and did not meet his burden of proof to show that his injury occurred out of and in the course of his employment.

Verdict: The South Dakota Supreme Court affirmed the circuit court's denial of judgment.

Takeaway

Going down a dead-end road on a task for another employer won't count as "arising out of" or occurring "in the course" of employment under South Dakota workers' compensation law.

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