In McCann v. Hatchett, 19 S.W.3d 218 (Tenn. 2000), the Tennessee Supreme Court considered whether the death by drowning of a traveling employee was compensable.
Donald King was employed by a company that was based in Memphis, Tennessee. Mr. King, and some other employees were sent by their employer to lay carpet at a motel in Rutland, Vermont. Id. at 220. While in Rutland, Mr. King, at his employer's expense, stayed at a Days Inn motel. Id.
While off duty, at approximately 10 p.m., Mr. King drowned in the Days Inn pool. Id.
The exact circumstances of Mr. King's death were not disclosed in the opinion.
A representative of Mr. King's estate sought workers' compensation benefits for Mr. King's son plus reimbursement of funeral expenses. The employer filed a summary judgment motion contending that the drowning death was not compensable because it did not arise out of or in the course of King's employment. Id.
The McCann court, in rejecting the employer's argument, commenced its analysis by reviewing previous Tennessee cases, viz:
In the following cases, the Court found that the traveling employee's injury or death arose out of and in the course of the employment: Pool v. Metric Constructors, Inc., 681 S.W.2d 543 (Tenn. 1984) (Tennessee employee injured in vehicle accident returning home after having worked in Mississippi); Watson v. United States Fire Ins. Co., 577 S.W.2d 668 (Tenn.1979) (East Tennessee-based employee injured in vehicle accident en route to training program in West Tennessee); West Tennessee Nix-A-Mite Sys., Inc. v. Funderburk , 208 Tenn. 381, 346 S.W.2d 250 (1961) (employee killed in vehicle accident after having deviated from usual route for personal reasons); Gregory v. Porter, 204 Tenn. 582, 322 S.W.2d 591 (1959) (employee killed in vehicle accident returning home from out-of-town trip on employer's business); Carter v. Hodges, 175 Tenn. 96,132 S.W.2d 211 (1939) (Tennessee employee killed in hotel fire in Georgia while on business of employer); Employers' Liability Assurance Corp. v. Warren, 172 Tenn. 403, 112 S.W.2d 837 (1938) (employee's fall from hotel's second-story porch caused fatal injuries).
In contrast, the Court found in the following cases that the traveling employee's injury or death did not arise out of and in the course of the employment: Isabell v. Ren, Corp., No. 01S01-9301-CV-00003, 1993 WL 835552 (Tenn. Aug 26, 1993) (Tennessee employee working in Florida injured knee when she slipped and fell leaving restaurant after dinner); Smith v. Royal Globe Ins. Co., Inc., 551 S.W.2d 679 (Tenn.1977) (Tennessee employee injured in vehicle accident returning home from Virginia job site); Knox v. Batson, 217 Tenn. 620, 399 S.W.2d 765 (1966) (employee working away from home killed by "lethal gas" in motel room); Timmerman v. Kerr Glass Mfg. Co., 203 Tenn. 543, 314 S.W.2d 31 (1958) (Tennessee employee killed on weekend trip en route from Kentucky job site to Memphis); Jackson v. Clark & Fay, Inc., 197 Tenn. 135, 270 S.W.2d 389 (1954) (Tennessee employee working in Arkansas killed by tornado while riding in employer's truck from job site to motel); Underwood Typewriter Co. v. Sullivan, 196 Tenn. 238, 265 S.W.2d 549 (Tenn. 1954) (Tennessee employee training in Oklahoma killed in vehicle accident on day off); Lumbermen's Mut. Cas. Co. v. Dedmon, 196 Tenn. 94, 264 S.W.2d 567 (1954) (Knoxville-based employee, who had finished a customer visit in Morristown, killed as he crossed street after leaving a fishing tackle shop); Thornton v. RCA Serv. Co., Inc., 188 Tenn. 644, 221 S.W.2d 954 (1949) (employee stopped for lunch at highway restaurant between Norris and Knoxville and was killed by "a stranger who was insane, or drunk 'or otherwise irresponsible.'"). (Id. at 220-21.)
The Tennessee Supreme Court next examined several out-of-state cases, viz:
In other jurisdictions, courts tend to look more closely at the nature of the activity involved. Thus, while approving the use of an all-terrain vehicle as reasonable recreational activity for a traveling employee, the court rejected compensability where the vehicle had been operated recklessly. See, e.g., Jensen v. Indus. Comm'n, 305 Ill.App.3d 274, 238 Ill.Dec. 468, 711 N.E.2d 1129 (1999), appeal denied 185 Ill. 2d 628, 242 Ill. Dec. 138, 720 N.E.2d 1093 (1999). Similarly, depending upon the particular facts, the employee's activity was held to be a "distinct departure" or "deviation" from the employment, thereby relieving the employer of liability. See, e.g., Silver Eng'g Works, Inc. v. Simmons, 180 Colo. 309, 505 P.2d 966 (1973) (en banc) (employee's trip to beach where he drowned was deviation from his employment); Volk v. Int'l Harvester Co., 252 Iowa 298, 106 N.W.2d 649 (1960) (employee's trip to neighboring town for social visit constituted deviation from employment); Buczynski v. Indus. Comm'n of Utah, 934 P.2d 1169 (Utah Ct.App. 1997) (employee's weekend social visit to town 150 miles from convention site prior to convention's start was "personal diversion" and injury in hotel hot tub was not compensable); Carr v. Workmen's Compensation Appeal Bd., 671 A.2d 780 (Pa.Commw.Ct.1995) (employee's 35-mile trip from the work site to Boston to go sightseeing and drinking was personal trip and not part of employment).
As stated in 2 Arthur Larson & Les K. Larson, Arthur Larson's Workers' Compensation Laws, §25.00 (1998), the majority rule is that "an employee whose work entails travel away from the employer's premises is generally considered to be within the course of his or her employment continuously during the trip, except when there is a distinct departure on a personal errand." (Id. at 221.)