Tell-Tale Web Page on Employee’s Blackberry Spells Doom for South Dakota Comp Claim

An employee’s injuries sustained in a one-car auto accident while he drove down a dead-end road some 2.5 miles from his office did not arise out of and in the course of his employment in spite of some evidence that the employer often allowed its employees to attend to personal matters while on the clock, held the Supreme Court of South Dakota in Terveen v. South Dak. Dep’t of Transp., 2015 S.D. 10 (March 4, 2015). The employee worked as a journey transportation technician for the Department of Transportation and testified that he could not remember why he had driven down the road prior to the accident. The Court was unconvinced by the employee’s argument that the ten-minute detour was insubstantial, considering he had traveled 840 miles to and from Yankton, South Dakota that day on Department business.

The employee also argued that given the Department’s practice of allowing its employees to take personal side trips during work-related travel, the deviation should not be considered substantial enough to remove the employe from the course and scope of the employment. The Court acknowledged that the employer did allow such diversions, but indicated the instant case was different.

Quoting Larson’s Workers’ Compensation Law extensively, the Court held the employee was not engaged in work-related travel at the time of the accident. The employee had introduced no evidence that he had been engaged in any personal comfort activities at the time of the accident; indeed, he had no explanation at all for his presence on the dead-end road. Alternatively, the employer introduced evidence that the employee also worked part-time for a vehicle repossession firm, that the employee’s personal Blackberry was recovered after the accident, and that it showed that just before the accident, the employee had accessed a website showing an automobile repossession order for a vehicle located on the same dead-end road.

The Court determined that the employee was not engaged in any activity incidental to his employment with the Department, that he likely had been driving to locate a potential repossession job, and that such activity was not authorized by the Department. While the Department had authorized the employee to make small deviations for his personal needs, it had not consented to deviations that only served the interests of another employer.

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