Alabama: Court Reverses Award of Benefits to Truck Driver Bitten by Rattlesnake
As a father of three sons and a daughter–they’re all grown now–I’ve had more than one occasion to repeat to myself a favorite line spoken by another dad, this one a father who appears in a wonderful Southern novel by Ferrol Sams, Run With the Horsemen (Penguin Books, 1984). While plowing a field, the man’s 14-year old son has just done something dangerous that he never should have tried–touch the backside of a mule with a lit match. Quick to respond, the startled mule tore through the field, wrecking part of the crop and a good plow. The boy’s father turns to his own father–also a witness to the spectacle–and says, “There are just so many things I haven’t told him yet not to do.”
I wonder if the employer of an Alabama log-truck driver thought that same thing when he heard about an almost fatal injury to the driver several years ago. In that case [Mercy Logging v. Odom, 2012 Ala. Civ. App. LEXIS 198 (July 27, 2012)], an Alabama appellate court recently reversed an award of workers’ compensation benefits to a log-truck driver who sustained severe injuries when he was bitten multiple times by a rattlesnake that he and other workers had attempted to capture. The incident almost resulted in the driver’s death and incurred more than $300,000 in medical expenses.
The driver’s duties included trimming, binding, and flagging loads and delivering the loads to timber and paper mills. He and a crew of loggers had worked all day and, at quitting time, they gathered various work-related materials and headed back in a company-provided vehicle to where they had parked their personal vehicles. Along the way, they saw a rattlesnake on the paved road. The foreman driving the truck initially swerved in an attempt to run over and kill the snake, but one of the workers yelled, “let’s catch it.” The foreman veered so as to miss the snake and stopped the truck down the road a bit. The workers exited the vehicle and approached the snake. As the driver attempted to grasp the 6-ft. snake and put it into a bucket, it lashed out at him, biting him multiple times on both hands.
The driver was airlifted to a hospital, where he was hospitalized for approximately six weeks. He lay in a coma for the first two weeks and remained in an intensive-care unit for 35 of the 40 days that he was hospitalized. After being discharged, he required extensive physical therapy and never returned to work.
He filed a complaint seeking benefits under the Alabama Workers’ Compensation Act. Following a bench trial, the trial court entered a judgment determining that the driver’s injuries were compensable. It found that the driver was permanently and totally disabled and awarded him benefits under the Act. It further found that he had incurred reasonable and necessary medical expenses of $310,994.57, for which the employer was liable. The employer appealed, contending the injuries did not arise out of and in the course of the employment.
Alabama is one of the few states who treat the “arising out of and in the course the employment” requirement as two, not one, tests. The court spilt a substantial amount of ink on the course of employment side of the equation, noting that in as much as the driver and other workers were riding in a company vehicle at or near the time of the incident, the ordinary going and coming rule did not apply.
The court examined a special Alabama requirement: Was the driver “reasonably fulfilling the duties of his employment or engaged in doing something incident to it at the time of the injury? The court acknowledged here that the course of the employment was not limited solely to the services for which the employee was retained, but included any act expressly or implicitly authorized by the employer. Because the foreman abandoned his plan to run over the snake and kill it and, instead, stopped the labor truck and pulled off the road after two employees expressed a desire to catch the snake, the court indicated it could be inferred that the employer impliedly consented to the snake-catching activity. The court stated, however, that the implied-consent rationale was limited by the requirement that, “although the employer may have implicitly authorized an activity, if the employer receives no direct or indirect economic benefit from the activity, it does not become part of the employment.”
The driver’s counsel argued to the trial court and also on appeal that removing the poisonous snake from the roadway (whether by catching it or killing it) furthered the economic objectives of the employer because snakes were an occupational hazard to loggers in the woods. It was noted that the snake on the roadway was several hundred yards from (and “facing” in the direction of) the job site where the employer’s loggers would be working the following morning. The appellate court wasn’t sold on the argument, however, noting that the suggestion that the driver’s snake-catching activity was tantamount to safeguarding the job site assumed that, unless it was caught and removed from the roadway, the same snake would likely have been present on the job site 12 hours later when the logging crew arrived. The court questioned whether an activity that produced such a speculative and remote benefit to the employer fell within the indirect-benefit rule.
Further, the court indicated that for purposes of the economic-benefit rule, catching a poisonous snake was no different from killing the snake; either action would result in the removal of a potential hazard from the employer’s job site. Even assuming that the employer’s job site was potentially benefited as a consequence of the driver’s ridding the area of one dangerous snake, that potential benefit appeared to be outweighed by the potential detriment to the employer that could (and did, in this case) result from losing the services of a valued employee who might have been seriously injured while trying to catch the snake.
Although the court entertained some doubt about the correctness of the trial court’s conclusion that Odom’s snake-catching activity occurred “in the course of” his employment, it assumed, without deciding, that it did so occur and proceeded to address whether that activity “arose out of” the driver’s employment.
The court observed that the snake on the roadway posed no risk – occupational or otherwise – to the driver so long as he remained in the vehicle in which he was riding. The court continued that once the driver voluntarily exited the vehicle and attempted to catch the snake, the risk that caused his injury was personal to him and not “sufficiently related to [his] employment to be considered an occupational hazard. The hazard that the driver encountered was not peculiar to loggers; it was one that would be shared by any passing motorist who, after having spied a snake on the roadway, exited his or her vehicle and undertook to catch the snake.
As this was a personal risk, and not one that arose from the employment, the claim should have been denied, indicated the court.