Nebraska Deputy’s Fatal Injuries in Auto Accident Not Compensable

Deputy Was on Cell Phone Exchanging Shift-Change Information at Time of Crash

A deputy sheriff’s death in an automobile accident did not arise out of and in the course of his employment in spite of the fact that, at the time of the accident, he was on his cell phone exchanging shift-change information with another officer who had just come on duty, held a Nebraska appellate court, in Coughlin v County of Colfax, 27 Neb. App. 41, 2019 Neb. App. LEXIS 97 (Apr. 2, 2019). The court stressed that while the exchange of information between the two officers was expected by the employer, the manner of that exchange was not so controlled; the deputies used the cell phones for their own convenience. Other options existed, indicated the court.

Background

While Coughlin was driving home from work one morning in January 2016, he had a cell phone conversation with another deputy whose shift had just begun. The conversation took place about 5 minutes after Coughlin clocked out from his 12-hour shift. During that conversation, the left front side of Coughlin’s vehicle hit a deer carcass that was lying on the highway. Coughlin’s vehicle dragged the carcass for about 70 feet before he lost control. Another vehicle driving in the opposite lane of traffic collided with the driver’s side of Coughlin’s vehicle, and the collision caused Coughlin’s death.

Coughlin’s brother filed a workers’ compensation claim, alleging that the death occurred in the course and scope of Coughlin’s employment. The Workers’ Compensation Court dismissed the claim, essentially finding the claim was barred by the going and coming rule and that the course and scope of employment had not been expanded by the cell phone conversation, in spite of its work-relatedness.

Going and Coming Rule

The appellate court initially acknowledged the importance of the going and coming rule—that injuries sustained commuting to or from the workplace did not arise out of and in the course of the employment for workers with a fixed place of employment. Here, Coughlin’s brother contended that Coughlin did not have such a fixed place of employment, as he was a deputy who spent most of his work day patrolling the county.

Fixed Place of Employment

The court disagreed. Indeed, Coughlin had a fixed place of employment. His patrol car was located at the Department’s garage at the county courthouse. Coughlin drove his personal vehicle to the garage to retrieve his patrol car and returned it to the garage at the completion of his shift. He could not clock in or out of work without exchanging his personal vehicle for the patrol car. After the accident, other officers observed Coughlin’s bulletproof vest, “badge of authority,” weapon, and handcuffs in the backseat of his personal vehicle, indicating that Coughlin had left his place of employment and was off duty.

Employer-Created Condition?

The court acknowledged that the claim could still be established if an employer-created condition rendered the going and coming rule inapplicable. The relevant question in the case is whether Coughlin’s use of his cell phone to communicate shift-change information while he was driving home was an employer-created condition. The court noted that the record showed that although the Department expected Coughlin to exchange shift-change information, it did not prescribe any one way of doing so. Therefore, Coughlin’s use of his cell phone while driving home after his shift to convey that information was not an employer-created condition.

The court added that the Department did not instruct deputies to use their cell phones while driving to exchange shift-change information. In fact, the Department’s policy prohibited employees from using their cell phones while driving a county-owned vehicle and instructed them to pull over while engaging in a telephone conversation.

Summarizing its findings, the court concluded that compensation court’s conclusion that Coughlin had a fixed place of employment at the time of his accident was not clearly erroneous. Further, the court was not clearly erroneous in finding that Coughlin’s use of his cell phone to exchange shift-change information while driving home after work was not an employer-created condition. The claim was accordingly barred by the going and coming rule.