When Favors Feel Like Obligations: A Closer Look at the Special-Mission Exemption to the Going-and-Coming Rule

To determine whether an injury is compensable under the New Jersey Workers’ Compensation Act, the court must find that the injury arose out of and occurred in the course of employment, among other factors. In New Jersey, the “going-and-coming” rule governs and generally states that compensable accidents occur at the place of employment. There are few exceptions to this rule which allow for an employee’s off-site injury to be compensable, and they are extremely fact-specific.

In Gregory Van Sciver v. Jersey Mech. Contractors, Inc., 2022 WL 16936881 (N.J. Super. Ct. App. Div. Nov. 15, 2022), the Appellate Division held that an employee met the “special-mission” exception to the going-and-coming rule when he was injured by an explosion in his personal vehicle. Mr. Van Sciver was a pipe fitter and truck driver for his employer. On September 29, 2020, Van Scriver was instructed to exchange two empty tanks that hold acetylene gas (B-Tanks) for full ones, deliver one of the full B-Tanks to a jobsite in Livingston, and deliver paychecks to a jobsite located in Bordentown.

While in Bordentown, a jobsite foreman asked Van Sciver about his B-Tank delivery, but it was not on the employee’s list of tasks, so he returned to the main jobsite to ask his supervisor. Later that day, Van Sciver (acting on his own initiative) decided to deliver a full B-Tank to Bordentown using his personal vehicle since he would pass by Bordentown on his way home. However, the employee did not stop at the Bordentown jobsite that night because it was too late in the day.

The next morning, the employee forgot to drop off the B-Tank in Bordentown. As he was driving his personal vehicle to work, the company’s project manager/estimator asked him for a ride to work. Van Sciver agreed. However, he heard a hissing noise from his vehicle while driving to the company executive’s house. When Van Sciver opened the rear hatch of his vehicle to investigate the sound, the B-Tank exploded and significantly injured him. He required numerous surgeries and extensive medical treatment after an eight-day coma, traumatic brain injuries, and the loss of use of one eye.

At trial, all parties agreed that Van Sciver was not instructed to use his personal vehicle to deliver the B-Tank. In fact, the employer and the union agreement both instructed Van Sciver to NOT use personal vehicles for company business. Furthermore, the parties agreed that Van Sciver was trained to not store B-Tanks in confined places, such as his vehicle’s hatchback.

Nonetheless, the trial judge found that: (1) the employee placed the B-Tank in his personal vehicle with the sole intent and motive to deliver it to the Bordentown jobsite; (2) the tank was a “workplace instrumentality” of the employer; (3) the employee’s work responsibilities required him to be away from the main facility; (4) before the accident, the company’s executive asked the employee to pick him up for work; (5) the employee was en route to pick up the company’s executive when the accident occurred; and (6) the employee had an “objectively reasonable basis in fact for believing that… he was in essence ‘compelled’ to say yes to picking up” the project manager/estimator because of his high-level position at the company.

Thus, the trial judge found that Van Sciver was completing work-related duties when the injury occurred. It held that he was entitled to compensation under the “special-mission” exception of the going-and-coming rule on two grounds: (1) the employee was on a special mission delivering the B-Tank to Bordentown and the mission had not ended before the accident, and (2) the employee was engaged in a special mission for the company when he was driving to pick up the executive.

The company appealed the trial judge’s decision. The Appellate Division affirmed the trial judge’s decision, stating that Van Sciver met the special-mission exception when he attempted to pick up the company’s high-level officer. The Appellate Division noted that the Workers’ Compensation Act requires employers to compensate employees for accidental injuries arising out of and in the course of employment and occurring away from the place of employment if the employee is engaged in duties directed by the employer (i.e. the special-mission exception).

The company argued that Van Sciver was not directed by the employer to pick up the company’s executive because he could have declined. However, the Appellate Division reiterated that indirect pressure on an employee can be as powerful as an explicit order, indicating that implied direction from high-level officers can expand an employee’s job duties.

Finally, the company argued that the trial court’s legal determinations were not supported by the facts. In its review, the Appellate Division noted that they do not re-determine the factual findings of the trial judge, but they determine whether the trial judge’s findings had sufficient credible evidence. Thus, once a trial judge makes a factual determination, it can be quite difficult to change such a finding on appeal.

It is clear that “special-mission” cases are heavily fact-specific. Employers must quickly investigate how an accident occurred, what the employee was asked to do, and the employee’s job responsibilities. Just as the court considered an executive’s request for a ride to work as an extension of the employee’s job duties, other requests could impact an employee in the same manner. Thus, employers must be careful not to blur the line between an employee’s professional responsibilities and personal favors.

*Lela is an associate in our Roseland, New Jersey, office. She can be reached at 973.618.4191 or lneke@mdwcg.com.

_{Defense Digest, Vol. 29, No. 1, March 2023, is prepared by Marshall Dennehey to provide information on recent legal developments of interest to our readers. This publication is not intended to provide legal advice for a specific situation or to create an attorney-client relationship. ATTORNEY ADVERTISING pursuant to New York RPC 7.1. © 2023 Marshall Dennehey. All Rights Reserved. This article may not be reprinted without the express written permission of our firm. For reprints, contact tamontemuro@mdwcg.com.}