Calvo v. Montgomery Co. , 459 Md. 315 ( 2018 )

Rina Calvo v. Montgomery County, Maryland, No. 48, September Term, 2017, Opinion by
Adkins, J.
WORKERS’ COMPENSATION — TRAVELING EMPLOYEE: An employee who
was required to report from her home to a different work site was not a traveling employee
under Mulready v. Univ. Research Corp., 360 Md. 51 (2000), because traveling employee
status generally applies to employees who are injured on premises where the employee is
staying to carry out the employer’s business.
WORKERS’ COMPENSATION — GOING AND COMING RULE — SPECIAL
MISSION OR ERRAND EXCEPTION: Determining whether an employee’s journey
is sufficiently special to satisfy the special mission or errand exception to the going and
coming rule requires consideration of: (1) the relative regularity or unusualness of the
particular journey in the context of the employee’s normal duties; (2) the relative
onerousness of the journey in comparison to the service to be performed at the end of the
journey and other circumstances of the journey including the length and time of the
journey, and whether the employee usually worked at that time; and (3) the suddenness
with which the employee was called to work, or whether the call was made with an element
of urgency.
WORKERS’ COMPENSATION — GOING AND COMING RULE — SPECIAL
MISSION OR ERRAND EXCEPTION — SUMMARY JUDGMENT: Employer’s
motion for summary judgment should not have been granted because employee’s claim
was not barred by the going and coming rule when the employee was required to attend an
annual mandatory training on a day she did not typically work, the training was held at a
different location than her usual work site, and the training was not regular in the context
of her ordinary duties. From these facts, a trier of fact could reasonably infer that the
special mission exception applied.
Circuit Court for Montgomery County
Case No.: 412413V
Argued: February 5, 2018
IN THE COURT OF APPEALS
OF MARYLAND
No. 48
September Term, 2017
RINA CALVO
v.
MONTGOMERY COUNTY, MARYLAND
Barbera, C.J.
Greene
Adkins
McDonald
Watts
Hotten
Getty,
JJ.
Opinion by Adkins, J.
Barbera, C.J., Greene, and Getty, JJ., dissent.
Filed: May 21, 2018
“Each case involving the going and coming rule and its exceptions must turn on its
own particular facts.” Alitalia Linee Aeree Italiane v. Tornillo, 329 Md. 40, 46 (1993).
Rina Calvo was injured in a car accident while driving from her home to a mandatory work
training on a Saturday—normally her day off. We consider whether the Circuit Court for
Montgomery County should have granted summary judgment in judicial review
proceedings of an order of the Workers’ Compensation Commission (“Commission”). In
so doing, we shed light on a complicated and factually-intensive exception to the going and
coming rule: the special mission or errand doctrine.
FACTS AND LEGAL PROCEEDINGS
Calvo has been employed by Montgomery County (“County”) as a bus driver for
approximately 20 years. Her regular work schedule is Monday through Friday, and she is
based at the Silver Spring Depot. On May 6, 2015, Calvo received a letter notifying her
that she was scheduled to attend an “important mandatory training” set for Saturday, May
16, 2015, at the Gaithersburg Depot. The notice stated that Calvo was not required to be
in uniform to attend the “customer service class,”1 and that the training was set to run from
8:00 a.m. to 4:30 p.m. The County required all employees to attend this training annually.
En route to the training, Calvo was rear-ended by another car while waiting at a traffic
light.
The subject line of the training notice refers to the “WE Care Scheduled Training,”
1
and the notice refers to it as “the customer service class.” During her testimony before the
Commission, Calvo stated that it was “a mandatory class for the ADA” and a “customer
service training.” There is no other information in the record regarding the nature and
content of the training.
Calvo filed a claim with the Commission, seeking compensation for injuries
sustained in the rear-end collision. At the Commission hearing on October 30, 2015, Calvo
testified about her injury, as well as the mandatory nature of the training. She believed that
if she missed the training she would probably get suspended or be prevented from going
back to work “full duty.”2 Before the Commission, the parties argued the applicability of
the special mission exception. The Commission awarded compensation after finding that
Calvo “sustained an accidental injury arising out of and in the course of employment . . . .”
The County sought judicial review of the Commission’s Order in the Circuit Court
for Montgomery County, and requested a jury trial. Shortly thereafter, the County filed a
motion for summary judgment on grounds that the “going and coming rule” prohibited
recovery—because accidental injuries sustained while going to or coming from work do
not ordinarily arise out of and in the course of employment, and none of the exceptions to
the rule applied. Calvo opposed the Motion, maintaining that compensation was proper
under the special mission exception, or because she was a traveling employee. After a
hearing, the Court granted the County’s motion.
The Court concluded that as a matter of law, Calvo’s accident fell within the going
and coming rule, and that Calvo was not a traveling employee. The Court considered that
Calvo was not compensated for her travel, it was an “annual, regular training” that was
“part and parcel of her job,” and it was not “out of the ordinary.” It found that the training
was “bus driver stuff,” which involved “go[ing] over the rules of the road,” and that the
2
Calvo made up her missed training in October 2015.
2
change in location, work on a day off, and the difference in distance did not bring Calvo’s
case within the special mission exception.
In an unreported opinion, the Court of Special Appeals affirmed the Circuit Court’s
grant of summary judgment Calvo v. Montgomery Cty., No. 1036, 2017 WL 2666161, at
*8 (Md. Ct. Spec. App. June 21, 2017). The intermediate appellate court agreed that there
was no dispute of material fact and concluded that the going and coming rule controlled.
Id. at *4, 6.
We granted certiorari to resolve the following question:3
3
Calvo presented the following questions, which we have consolidated and
rephrased:
1. Where the Claimant/Petitioner prevailed before the Workers’
Compensation Commission and a determination by the
Commission is statutorily “presumed to be correct,” and where
the appellate courts have held that whether an injury “arose out
of and in the course of employment” constitutes a question of
fact, should the granting of summary judgment against the
Petitioner be overturned and the appeal allowed to be heard by
a fact finder?
2. Did the lower court commit error when it summarily found,
without submitting it to a fact finder, that, the “special errand”
exception to the “going and coming” rule cannot even be
considered, notwithstanding that Petitioner was on her way to
a different assignment, at a different work site, on her off day,
at the direction of her Employer, and in the furtherance of her
Employer’s business, especially where 3 judicial/quasi-judicial
bodies reached 3 different conclusions on the issue of whether
the claim “arose out of and in the course of employment”?
3. Whether, given that Maryland case law holds that an injury is
compensable when it occurs in a place the employee would not
have been “but for” her employment and/or while engaged in
an activity “incidental” to her employment, and Ms. Calvo was
3
Did the Circuit Court err in concluding as a matter of law
that Calvo’s injury did not arise out of and in the course of
her employment, and granting summary judgment?
Our answer is yes.
STANDARD OF REVIEW
Maryland Rule 2-501(a) permits a party to seek summary judgment at any time “on
the ground that there is no genuine dispute as to any material fact and that the party is
entitled to judgment as a matter of law.” In reviewing a summary judgment motion, a court
should not attempt to resolve factual issues, but only determine if there is a dispute of
material fact sufficient to try the case. Baltimore Cty. v. Kelly, 391 Md. 64, 73 (2006).
Even if “the relevant facts are undisputed, ‘if those facts are susceptible to inferences
supporting the position of the party opposing summary judgment, then a grant of summary
judgment is improper.’” Ashton v. Brown, 339 Md. 70, 79–80 (1995) (quoting Clea v.
Mayor & City Council of Baltimore, 312 Md. 662, 677 (1988)). We review a grant of
summary judgment without deference, and construe the facts, and any reasonable
inferences that may be drawn from them, in the light most favorable to the non-moving
party. Rockwood Cas. Co. v. Uninsured Emp’rs’ Fund, 385 Md. 99, 106 (2005).
involved in an accident only because she was travelling to
training at the direction of, and for the benefit of, her Employer,
did the lower courts err in finding, as a matter of law, that
Petitioner’s claim was not “in the course of” her employment?
(Emphasis in original).
4
DISCUSSION
The Workers’ Compensation Act (“Act”) is intended to protect workers and their
families through compensation for a loss of earning capacity due to workers’ injuries that
arise out of and in the course of employment. See Howard Cty. Ass’n for Retarded Citizens,
Inc. v. Walls, 288 Md. 526, 531 (1980). The Act “is to be construed as liberally in favor
of injured employees as its provisions will permit in order to effectuate its benevolent
purposes as remedial social legislation.” Tornillo, 329 Md. at 48; Roberts v. Montgomery
Cty., 436 Md. 591, 603 (2014).
Maryland Code (1991, 2016 Repl. Vol.), § 9-501 of the Labor and Employment
Article (“LE”) provides that “each employer of a covered employee shall provide
compensation in accordance with this title to . . . the covered employee for an accidental
personal injury sustained by the covered employee . . . .” An “accidental personal injury”
is an “accidental injury that arises out of and in the course of employment[.]” LE § 9-
101(b).
LE § 9-737 permits a party to seek judicial review of Commission orders in circuit
court. A party may request review on the record before the Commission, which we have
described as similar to “judicial review of the final action of most state administrative
agencies . . . .” Kelly, 391 Md. at 67. Alternatively, a party may select a “new evidentiary
hearing and decision before a jury . . . .” Id. at 67–68; LE § 9-745(d). The latter is what
the County requested, and so our review is “much like” that due a motion for summary
judgment following “an original civil complaint brought in a circuit court.” Id.
5
Regardless of the method of appeal, the Commission’s decision is “presumed to be
prima facie correct[,]” and “the party challenging the decision has the burden of proof.”
LE § 9-745(b). To prevail in judicial review, the appellant must overcome the statutory
presumption. Kelly, 391 Md. at 76; LE § 9-745(b)(1). After the Commission issues an
award to a claimant, “the burden of proof, which was borne by the claimant before the
Commission, switches to the employer before the circuit court.” Kelly, 391 Md. at 75–76.
A successful claimant has no burden of production in judicial review—the Commission’s
decision may serve as the claimant’s prima facie case. Id. at 76 (citing General Motors
Corp. v. Bark, 79 Md. App. 68, 80 (1989)).
The parties raise perennial questions about the fact/law dichotomy inherent in
review of summary judgments. Calvo contends that whether an accident arose out of and
in the course of employment, the special mission exception, and her status as a traveling
employee are questions of fact. Calvo maintains that summary judgment was improper
because the County did not offer additional evidence in its motion for summary judgment,
and the Commission’s factual determinations are presumed correct. She relies on Kelly,
391 Md. at 80, for the proposition that a circuit court may not enter summary judgment
against a claimant who prevailed before the Commission.
The County argues that summary judgment was proper because there is no material
dispute of fact, the going and coming rule bars compensation as a matter of law, and the
facts do not permit any other inferences. The County does not disagree that the
Commission’s decision is presumed prima facie correct but maintains that the presumption
only applies if the issue on appeal is a question of fact, not of law. The County agrees that
6
an agency’s interpretation of a statute it administers receives deference but observes that a
court may always consider whether the agency made an error of law.
LE § 9-745(b)(1) provides that the Commission’s decisions are presumed correct,
but the presumption “does not extend to questions of law.” Wal Mart Stores, Inc. v.
Holmes, 416 Md. 346, 357 (2010); Beyer v. Decker, 159 Md. 289, 291 (1930). Although
the Commission is entitled to deference in its interpretation of the statute it administers, we
may still consider whether its legal conclusions were erroneous. Holmes, 416 Md. at 359;
W.M. Schlosser Co. v. Uninsured Emp’rs’ Fund, 414 Md. 195, 204 (2010).
The question of whether evidence before the Commission is legally sufficient to
support its decision is a question of law. Moore v. Clarke, 171 Md. 39, 45 (1936). When
the Commission’s decision involves “consideration of conflicting evidence as to essential
facts, or the deduction of permissible but diverse inferences therefrom, its solution of such
conflict is presumed to be correct . . . .” Id. If the undisputed facts do not permit a
conclusion, or any permissible inferences consistent with the Commission’s award, the
case will be resolved solely as a question of law. Id. at 46; see also Hygeia Ice & Coal Co.
v. Schaeffer, 152 Md. 231, 235 (1927).
Cases involving the going and coming rule and its exceptions hinge on the specific
facts of each case. Tornillo, 329 Md. at 46; see also Reisinger-Siehler Co. v. Perry, 165
Md. 191, 198 (1933) (“The question, therefore, whether a case is an exception to the
general rule, depends upon its own particular facts.”). But, as we explained in Harrison v.
Cent. Constr. Corp., 135 Md. 170, 180 (1919):
7
[t]he question as to whether an injury arose out of or in the
course of employment is ordinarily, like negligence or
probable cause, a mixed question of law and fact; but when the
facts have been ascertained and agreed upon by the parties, or
are undisputed and there is no dispute as to the inferences to be
drawn from the facts, the question becomes one of law and may
be decided by the Court.
Contrary to Calvo’s arguments, Kelly does not establish that summary judgment is
never permissible against a prevailing claimant during judicial review of a Commission
decision. See 391 Md. at 77–78. In Kelly, the employer sought judicial review of a
Commission Order that awarded compensation after finding that a car accident at work
aggravated an employee’s old injury. Id. at 69–70. In circuit court, the employer moved
for summary judgment, arguing that the case presented a complex medical question and
the employee failed to provide sufficient medical evidence connecting his need for
treatment with the car accident. Id. at 72. The employee maintained that a factual dispute
over causation existed and opposed summary judgment on the basis of the Commission
record and the presumption of correctness. The Circuit Court granted summary judgment.
Id. at 72–73.
We determined that summary judgment was improper. The prevailing employee
was entitled to rely on the Commission’s determination of causation, and the employer was
required to produce evidence establishing the lack of causation because, as the losing party,
it bore the burdens of proof and production at summary judgment. Id. at 77. We held that
there was sufficient evidence before the Commission to support the conclusion that the car
accident aggravated the employee’s old injury. Id. at 80. We explained that “‘[t]he general
rule in Workmen’s Compensation cases is that where there is any evidence from which a
8
rational conclusion may be drawn, as opposed to the theory of prayer for a directed verdict,
the trial court must leave to the jury all considerations as to the weight and value of such
evidence.’” Id. (quoting Jewel Tea Co. v. Blamble, 227 Md. 1, 4 (1961) (emphasis in
original)).
Kelly teaches us that summary judgment is improper against a prevailing party when
the moving party does not carry its burden, or if there is any evidence that can rationally
permit the Commission’s factual determination. Id. With these principles in mind, we turn
to the question of whether the Circuit Court improperly granted summary judgment for the
County.
Arises Out Of And In The Course Of Employment
A claimant who seeks compensation must prove that the injury “both arose out of
and in the course of the employment.” Montgomery Cty. v. Wade, 345 Md. 1, 9 (1997)
(emphasis in original). “‘Arises out of’ refers to the causal connection between the
employment and injury.” Livering v. Richardson’s Rest., 374 Md. 566, 574 (2003). We
have adopted the positional risk test to determine if an injury arose out of employment. Id.
at 575. Under this test, “‘[a]n injury arises out of the employment if it would not have
occurred but for the fact that the conditions and obligations of the employment placed [the
employee] in the position where he [or she] was injured.’” Id. (quoting A. Larson,
Workers’ Compensation Law § 3.05 (2002)) (emphasis in original).
In analyzing whether the injury occurred “in the course of employment” we consider
“the time, place, and circumstances of the accident in relation to the employment.” Id. at
576–77. “An injury is in the course of employment ‘when it occurs during the period of
9
employment where the employee reasonably may be in performance of his or her duties
and while fulfilling those duties or engaged in something incident thereto.’” Id. at 577
(quoting Wade, 345 Md. at 11).
To determine whether Calvo’s injury arose out of her employment, we consider
whether Calvo would have been injured but for her employer’s requirement that she attend
the Saturday training. Id. The Circuit Court found that Calvo’s injury did not arise out of
her employment. The Court of Special Appeals applied the positional risk test, observing
that the parties do not dispute that the travel was “sufficiently work-related” and that but
for Calvo’s obligation to attend the training, she would not have been traveling the route.
Calvo, 2016 WL 2666161, at *6. The parties do not dispute that Calvo ordinarily did not
work on Saturdays, and that the training was mandatory. But for the County’s requirement
that she attend, Calvo would not have been driving when and where she was injured.
Therefore, under the positional risk test, Calvo satisfies the “arises out of” requirement.
Livering, 374 Md. at 575; see also 1 Clifford B. Sobin, Maryland Workers’ Compensation
§ 6:1, at 158 (2017 ed.).
Whether Calvo’s injury occurred in the course of her employment depends on the
time, place, and circumstances of her injury relative to her employment. Livering, 374 Md.
at 576–77. To fall within the Act, her injury must have occurred during her employment
when she was in the performance of her duties or doing something incident to those duties.
Id. at 577; Wade, 345 Md. at 11. The parties do not dispute that Calvo was traveling from
her home to the Gaithersburg Bus Depot for training when she was injured. Rather, they
dispute the legal character of this journey.
10
The County contends that the going and coming rule controls. Under this rule,
employees’ injuries sustained while going to or coming from work are not ordinarily in the
course of employment. Roberts, 436 Md. at 606; Tornillo, 329 Md. at 44. Such injuries
are not usually compensable because employees are responsible for ensuring their presence
at work, and during the commute, they generally face the same hazards as other commuters.
Roberts, 436 Md. at 606. Thus, the risks are not usually “directly attributable to a person’s
particular employment.” Morris v. Bd. of Educ. of Prince George’s Cty., 339 Md. 374,
380 (1995). Applying this rule, the County reasons that Calvo should not receive
compensation because she was traveling to work. We have, however, recognized several
exceptions to the going and coming rule.4 See Tornillo, 329 Md. at 44.
4
We have enumerated these exceptions in Board of Cty. Comm’rs for Frederick
Cty. v. Vache, 349 Md. 526, 532 (1998):
1. Thus, where the employer furnishes the employee free
transportation to and from work, the employee is deemed to be
on duty, and an injury sustained by the employee during such
transportation arises out of and in the course of employment.
2. Compensation may also be properly awarded where the
employee is injured while traveling along or across a public
road between two portions of the employer’s premises. 3. The
“proximity” exception allows compensation for an injury
sustained off-premises, but while the employee is exposed to a
peculiar or abnormal degree to a danger which is annexed as a
risk incident to the employment. 4. Injuries incurred while the
employee travels to or from work in performing a special
mission or errand for the employer are likewise compensable.
(Cleaned up). We have also recognized the “dual purpose” doctrine. See Montgomery Cty.
v. Wade, 345 Md. 1, 13 (1997).
11
Calvo offers two reasons for why the Circuit Court should not have granted
summary judgment. First, she argues that the special mission or errand exception to the
going and coming rule applies, and therefore her injury arose out of and in the course of
her employment. She also contends that she was a traveling employee. Because applying
the traveling employee rule would bar the applicability of the going and coming rule, we
address this argument first.5
The Traveling Employee
Calvo argues that whether she was a traveling employee is a material question of
fact. She contends that the Circuit Court erred in determining that the nature of her journey
did not make her travel incidental to her employment. Calvo maintains that if she was
indeed a traveling employee, then the going and coming rule would not apply at all, and
the positional risk test applies to determine whether her injury occurred in the course of her
employment. The County contends that the going and coming rule applies, and that Calvo
was not a traveling employee because she was on her way to work, rather than staying at a
different site for work, traveling between work sites, or on her employer’s premises.
A traveling employee is “an employee who is required to travel away from . . . [an]
employer’s premises in order to perform his [or her] job.” Gravette v. Visual Aids Elecs.,
216 Md. App. 686, 686–87 (2014). The seminal traveling employee case in Maryland is
Mulready v. Univ. Research Corp., 360 Md. 51 (2000). There, an employee for an
5
The Court of Special Appeals decided that the going and coming rule controlled
and did not address the applicability of the traveling employee rule and the positional risk
test. Calvo v. Montgomery Cty., No. 1036, 2017 WL 2666161, at *5 (Md. Ct. Spec. App.
June 21, 2017).
12
American company was on a business trip in Canada when she slipped and fell in her hotel
shower. Id. at 53–54. The parties agreed that Mulready was acting in the course of her
employment at the time of her injury. We considered whether Mulready’s injuries arose
out of her employment. Id. at 54–55. We adopted the positional risk test and reasoned that
Mulready should receive compensation because her injury arose from an activity that was
“reasonably incidental” to travel required by her employer. Id. at 66. We explained:
Absent facts indicating a distinct departure by the employee on
a personal errand that would not be in the contemplation of the
parties, an injury to a traveling employee generally is
compensable so long as it occurred as a result of an activity
reasonably incidental to the travel that the employer required.
Thus even injuries suffered by traveling employees as a result
of common perils of everyday life or as a result of purportedly
personal acts generally are compensable. Inasmuch as, under
ordinary circumstances, a traveling employee’s eating and
bathing are reasonably incidental to the travel required by the
employer, injuries resulting from these acts are compensable.
Id.
Although Calvo argues that her status as a traveling employee is a factual question,
we fail to see any support for that theory. The traveling employee rule applies to situations
in which “the employee suffered the injury on premises, distant from the employee’s
home where the employee was staying in order to carry out the employer’s business.” Id.
at 61–62 (emphasis added); see also Gravette, 216 Md. App. at 692–93. The requirement
that Calvo report from her home to a different, but not very distant, work location does not
transform her into a traveling employee. Her injury did not occur on the premises of a
different location where her employer required her to stay to perform work functions.
Calvo simply does not qualify as a traveling employee under applicable legal standards.
13
Calvo argues that two of our other cases, Livering v. Richardson’s Rest., 374 Md.
566 (2003), and Roberts v. Montgomery Cty., 436 Md. 591 (2014), provide a basis to
conclude that her injury occurred in the course of her employment because travel to the
training was incident to her employment. In Livering, 374 Md. at 580–81, we held that an
employee’s injury arose out of and in the course of her employment when—while on her
day off—she was injured at the restaurant where she worked while checking her schedule.
In that instance, Livering’s visit to restaurant on her day off was an effort to accommodate
her employer’s practice of frequently changing the work schedule. Livering had no phone,
so she confirmed her schedule by either visiting the restaurant or calling in from elsewhere.
Id. We applied the positional risk test to determine that Livering’s injury arose out of her
employment. Id. at 575–76. Relying on cases “involving off-duty or post-termination
injuries sustained while on-premises to collect wages or personal property[,]” id. at 577–
79, we determined that Livering’s injury was compensable because checking her schedule
was incident to her employment and she was injured on her employer’s premises. Id. at
580.
In Roberts, 436 Md. at 606, we considered whether to apply the going and coming
rule or the positional risk test to determine if a firefighter’s injury arose out of and in the
course of his employment. Roberts was a firefighter on light duty who had been
temporarily assigned to a station different from his regular duty station. Id. at 595–96. He
was injured during his shift while traveling from one site, where he had been engaged in
physical training, to his regular duty station to pick up his mail. Id. at 596–97. We
determined that the positional risk test controlled whether Roberts’s injury arose out of and
14
in the course of his employment because he was “en route from a work-related activity to
a site where he was to engage in a work-related act,” and his employer was aware that
Roberts routinely picked up his mail. Id. at 607. Because this travel was incident to his
employment, the going and coming rule did not apply. Id. at 607 & n.15.
Calvo’s reliance on these cases is misplaced, as both Roberts and Livering are
materially distinct from the present circumstances. The County employed Calvo as a bus
driver, required her to attend training at a different work site, and Calvo was injured while
driving from her home to the site. Unlike the claimant in Livering, Calvo was not on her
employer’s premises engaging in an activity incident to her employment like checking her
schedule, picking up a paycheck, or collecting tools. See 374 Md. at 579–80. And the
facts do not show that Calvo was traveling between work-related sites, on duty, or
compensated for her trip. See Roberts, 436 Md. at 607. The Circuit Court did not err in
granting summary judgment for the County on the question of whether Calvo was a
traveling employee.
Calvo has better luck with her next argument—that the special mission or errand
exception to the going and coming rule applies to this case.
The Special Mission Exception
We have recognized the special mission exception since Reisinger-Siehler Co. v.
Perry, 165 Md. 191 (1933). See Director of Fin. for the City of Baltimore v. Alford, 270
Md. 355, 360 (1973). “[A] journey not normally covered under the Act . . . ‘may be
brought within the course of employment by the fact that the trouble and time of making
the journey, or the special inconvenience, hazard, or urgency of making it in the particular
15
circumstances, is itself sufficiently substantial to be viewed as an integral part of the service
itself.’” Wade, 345 Md. at 15 (quoting 1 Arthur Larson, The Law of Workmen’s
Compensation § 16.11 (1996)). The rule “provides that an employee is acting in the course
of employment when travelling on a special mission or errand at the request of the
employer and in furtherance of the employer’s business, even if the journey is one that is
to or from the workplace.” Barnes v. Children’s Hosp., 109 Md. App. 543, 555–56 (1996).
The applicability of the exception turns on the particular facts of the case. Reisinger-
Siehler, 165 Md. at 198.
To support her theory that the special mission or errand exception applies, Calvo
points out that she was required to attend a mandatory training on a day she did not
normally work, the training was infrequent and distinct from her normal role as a bus
driver, and her attendance benefitted the County. The County argues that although Calvo
was traveling to a different location and on a different day, she was attending a routine
annual training, she was not compensated for her travel, there was no element of urgency,
and no hazards out of the ordinary. Therefore, the County reasons, the special mission
exception should not apply, and the going and coming rule bars compensation.
The Court of Special Appeals provided a thorough analysis of how a trip may fit
within the special mission exception in Barnes, 109 Md. App. at 557–59. Barnes was the
hospital’s director of computer and information systems. She worked Monday through
Friday, from 8:30 a.m. to 4:30 p.m., and was also “on call” at all times. She regularly
received calls during her off hours, and although she usually resolved issues by phone,
occasionally she would have to go in to address a problem. Id. at 551. One Saturday, the
16
hospital comptroller contacted Barnes while she was on a shopping trip with family
members and asked her to come in and complete the monthly accounts receivable report,
which was due that day. Barnes intended to drive her family home before heading to work,
but realized she needed gasoline to reach the hospital. While en route to drop her family
off, Barnes stopped to get gas, slipped on a puddle of oil and fell, sustaining injuries. Id.
The Commission determined that Barnes’s injury did not arise out of and in the course of
her employment, and the Circuit Court affirmed the decision after a bench trial. Id. at 550.
The Court of Special Appeals reversed. It explained that whether a mission is
sufficiently “special” to fall within the exception requires the analysis of multiple factors.
Id. at 557. First, a court should consider the “‘relative regularity or unusualness of the
particular journey.’” Id. (quoting 1 Arthur Larson & Lex K. Larson, The Law of
Workmen’s Compensation § 16.13, at 4-208.24 (1992)). If the trip is “‘relatively regular’
in the context of the employee’s normal duties,” then there is a “‘strong presumption’” that
the going and coming rule applies. Id. (quoting 1 Larson & Larson, supra at § 16.13, at 4-
208.24, 4-208.26).
Second, a court examines “‘the relative onerousness of the journey compared with
the service to be performed at the end of the journey.’” Id. at 558 (quoting 1 Larson &
Larson, supra, at § 16.13, at 4-208.26). This analysis looks to the relationship between the
journey and the service to be performed. Traveling a long distance to perform a minor
service, supports application of the mission exception because it appears that the journey
is part of the service. Whether a journey is onerous may also depend on the length of the
17
journey and the circumstances under which it is made, such as time of day, whether it is a
regularly scheduled work day, or travel conditions. Id.
Finally, “the ‘suddenness’ of the call to work or whether it was made under an
‘element of urgency’ are also relevant factors.” Id. (quoting 1 Larson & Larson, supra, at
§ 16.13, at 4-208.26, § 16.16, at 4-208.39). This factor may support a conclusion that the
mission was special, but is not dispositive. Id. at 558–59.
The Court of Special Appeals applied the “usualness” and “onerousness” tests to
the facts of Barnes’s case, concluding that her trip was a special mission. Id. at 559. Barnes
was asked to come in on a day she did not normally work, and there was no evidence that
Barnes made regular trips in to work on Saturday. Id. at 559–60. Thus, the Court
explained, Barnes’s trip was “irregular or unusual in the context of her duties.” Id. at 560.
Barnes’s trip was clearly in furtherance of the hospital’s business interests, and it was
onerous because she came in on her day off. Id. Although preparing the report was a
routine task, the Court considered that there was an element of urgency because the report
was due that day, the employee who usually did the task was absent, and the hospital asked
Barnes to come in on her day off to specially complete it. Id. at 560–61.
The Barnes Court rejected the hospital’s argument that the routine nature of the task
barred application of the special mission exception because the exception “contemplates
situations in which either the journey or the mission is special, not simply where the task
to be performed is special.” Id. at 561–62 (emphasis in original). Relying on cases from
other jurisdictions, the Court explained that the exception applies because the employee
makes a special trip at the employer’s request, even if the task itself is normal in relation
18
to the employee’s duties. Id. at 562–64. Thus, Barnes’s journey to the hospital was a
special mission.6
On the other hand, Mayor & City Council of Baltimore v. Jakelski, 45 Md. App. 7(1980), illustrates when the special mission exception does not apply. Jakelski was a police
officer who made regularly scheduled appearances in court once a month to testify about
the traffic citations he had issued. Id. at 8. Jakelski got into a car accident while driving
to court. He had been scheduled to appear at 2:00 p.m., and after testifying, report to his
regular shift beginning at 3:30 p.m. Id. The Court of Special Appeals determined that
Jakelski’s trip was not a special mission. Id. at 11. Jakelski was required to regularly
testify in traffic court as part of his job, and the journey was not irregular or unusual. Id.
at 12. The Court observed that “if the court appearance had been an isolated obligation,
the journey to testify might well have been a special errand or mission,” but because it was
a “regular duty, periodically to be performed,” the exception did not apply, and the going
and coming rule barred compensation. Id. at 13.
Considering these cases, as well as other Maryland precedent, the first requirement
of the exception is that employer must require the employee carry out the special mission.
See Alford, 270 Md. at 363–64; Reisinger-Siehler, 165 Md. at 192–93; Coats & Clark’s
Sales Corp. v. Stewart, 39 Md. App. 10, 13 (1978); see also Huffman v. Koppers Co., Inc.,
94 Md. App. 180, 187 (1992) (“Employees feel obligated to go on the special mission
6
The Court of Special Appeals concluded that Barnes’s anticipated detour to obtain
gasoline and drop off her family also fell within the special mission exception because the
journeys were reasonably related to business purposes. Barnes v. Children’s Hosp., 109
Md. App. 543, 565–68 (1996).
19
because of the apparent underlying implication that if they do not go, their employment
may be jeopardized.”). The parties do not dispute that the County required Calvo to attend
the training because of her employment. The fact that the training was mandatory, as the
training notice states, suggests that Calvo’s attendance benefitted her employer.
Applying Barnes and Jakelski, the question of whether Calvo was on a special
mission hinges on two factors: (1) the regularity or unusualness of the journey in the
context of Calvo’s normal duties, and (2) the onerousness of the journey. See Barnes, 109
Md. App. at 559–60; Jakelski, 45 Md. App. at 11–13; see also 2 Arthur Larson, Lex K.
Larson & Thomas Robinson, Larson’s Workers’ Compensation Law § 14.05[3], at 14–10–
14-11 (Matthew Bender rev. ed. 2017).
Here, the parties do not dispute that the customer service training took place
annually. Calvo points out that her training took place much less frequently than Jakelski’s
court appearances. The County maintains that Jakelski is dispositive because the required
training occurred with regularity—annually—and the factors in Barnes do not support
Calvo’s position. We are not persuaded. Jakelski is an uneasy fit as precedent here. Once
per month does not readily compare with once per year when we consider that the material
question at hand is the regularity or unusualness of Calvo’s journey in the context of her
normal duties. Barnes, 109 Md. App. at 557.
The mandatory nature of the training does not mean it was regular in relation to her
employment. The Commission considered the following facts: (1) Calvo regularly drove
20
a bus Monday through Friday;7 (2) her regular trip to work was to the Silver Spring Bus
Depot; (3) she was assigned to attend training on a Saturday, when she did not work; and
(4) the training took place at a different location than her usual work site.
With regard to regularity or unusualness, we consider the journey to the training in
the context of Calvo’s normal duties. Journeys made daily, at regular intervals, or that are
part of the employee’s regular duties weigh against application of the special mission
exception. See 2 Larson, supra, at § 14.05[3], at 14-10; Barnes, 109 Md. App. at 557;
Jakelski, 45 Md. App. at 11.
Determining regularity or unusualness requires heavy reliance on the particular facts
and the inferences that may be drawn from those facts. For example, Jakelski’s trips to
court were regularly scheduled and part of his ordinary duties as a police officer. Jakelski,
45 Md. App. at 12. On the other hand, Barnes’s trip took place on a day she did not
normally work. While she was on call during her off hours, Barnes usually addressed
problems by phone, and only infrequently went in to work. Barnes, 109 Md. App. at 560.
The Court’s determination that Barnes’s trip was not regular in the context of her duties
focused on the journey, not the task to be performed. Id. at 564. In reaching this
conclusion, the Barnes Court relied on cases from other jurisdictions that had awarded
7
During oral argument, the County speculated that Calvo’s schedule could “change
at any time” because “bus routes change.” The special mission exception requires that the
employee have “identifiable time and space limits on the employment . . . .” 2 Arthur
Larson, Lex K. Larson & Thomas Robinson, Larson’s Workers’ Compensation Law
§ 14.05[1], at 14-5 (Matthew Bender rev. ed. 2017). It is uncontroverted from the record
that Calvo had fixed temporal and spatial limits on her employment. We do not find the
argument that her employer could change her schedule persuasive.
21
compensation under the special mission exception to employees who performed tasks
“within the scope of their ordinary duties” when the employee made an unusual journey to
perform the task at a time when the employee did not typically work.8 Id. at 562–64.
Like Barnes, and unlike Jakelski, Calvo was required to work on a day she did not
normally work. See id. at 551. That the task might have been part of her employment is
not dispositive—Barnes’s duties occasionally required her to come in to work during her
off hours. Id. at 560. Special mission cases from other jurisdictions support this
conclusion. See Johnson v. Fairbanks Clinic, 647 P.2d 592, 596 (Alaska 1982) (pre-
surgical meeting); Eady v. Med. Pers. Pool, 377 So. 2d 693, 695 (Fla. 1979) (nursing
duties); Brown v. City of Wheeling, 569 S.E.2d 197, 200 (W. Va. 2002) (mandatory
training). Although the record shows that Calvo attended the other trainings, there is no
evidence whether the past trainings took place on her day off, or whether she was regularly
required to journey to different worksites for training. Applying the law to the facts, we
conclude that it would not have been unreasonable for a jury to conclude that Calvo’s travel
8
See, e.g., Johnson v. Fairbanks Clinic, 647 P.2d 592 (Alaska 1982) (compensation
to doctor who made an unusual weekend trip to work to discuss an upcoming surgery with
a patient); Eady v. Med. Pers. Pool, 377 So. 2d 693 (Fla. 1979) (compensation awarded to
nurse who made a trip to a patient’s home at her employer’s behest after a full shift earlier
in the day); Kyle v. Greene High Sch., 226 N.W. 71 (Iowa 1929) (compensation awarded
to school janitor who was asked to come in after work to fix lights for the high school
basketball game); Jonas v. Lillyblad, 137 N.W.2d 370 (Minn. 1965) (affirming
compensation to janitor who went to work outside his regular hours to turn on and off the
furnace); Bengston v. Greening, 41 N.W.2d 185 (Minn. 1950) (awarded compensation to
bookkeeper who worked on weekdays and was asked to come in on a Saturday to gather
records for the accountant preparing her employer’s tax return); Hughes v. N.Y. Tel. Co.,
472 N.Y.S.2d 513 (N.Y. App. Div. 1984) (compensation awarded to line foreman who was
called in while off duty to check on a report of a broken telephone pole).
22
to a different location for training—on a day she did not normally work—was sufficiently
irregular or unusual to justify a fact-finder’s conclusion that she met that criteria for the
exception.
Like regularity, analysis of the onerousness factor is fact-intensive. See 2 Larson,
supra, at § 14.05[3], at 14-10–11. In support of her argument that onerousness is a factual
question to be decided by the jury, Calvo avers that the County never established the
difference in distance between Calvo’s usual work journey and her journey to the assigned
training. She contends that the Circuit Court improperly engaged in fact finding in deciding
that the training was insufficiently remote to support the special mission exception. The
County responds that it was proper for the Circuit Court to rely on the length of the journey
in evaluating the applicability of the special mission exception, and nothing about Calvo’s
commute rendered it onerous.
To determine whether a journey is onerous, a court examines the “relative
onerousness of the journey compared with the service to be performed at the end of the
journey.” Id. at 14-10; see also Barnes, 109 Md. App. at 558. This inquiry considers
whether the journey itself is an element of the service, which may be assessed by looking
to the task performed compared with the trip. See Barnes, 109 Md. App. at 558; 2 Larson,
supra, at § 14.05[3], at 14-10–11; see also Reisinger-Siehler, 165 Md. at 198–99 (nature
of employment suggests implied agreement that travel was part of duties). We also
consider the circumstances of the journey, such as “the time of day, whether it is a regular
workday, or the conditions of travel.” Barnes, 109 Md. App. at 558; see also 2 Larson,
supra, at § 14.05[3], at 14-11. But if the “terms of employment” clearly contemplated that
23
the employee would regularly have to make the journey at that time, then that factor does
not support onerousness. 2 Larson, supra, at § 14.05[3], at 14-11.
Barnes, 109 Md. App. at 558, is the primary Maryland case to directly consider the
onerousness of a journey. There, the Court of Special Appeals determined that Barnes’s
journey—even to her usual place of employment—was “sufficiently onerous” because she
had to report in on a day she did not expect to work. Id. at 560. Other Maryland cases
have peripherally addressed onerousness. In Reisinger-Siehler, 165 Md. at 198–99, we
determined that compensation was appropriate under the special mission exception when
the employee’s regular duties created an implied agreement that travel was part of his
duties. This decision rested in part on the fact that the employee was constantly on call,
and the work he might be required to do when called in after his usual hours might only
occupy a few minutes of time. Id. In Jakelski, 45 Md. App. at 13–14, the Court of Special
Appeals determined that the exception did not apply when Jakelski was traveling to “the
courthouse where he was regularly compelled to attend on a monthly basis . . . .” Further,
Jakelski was already scheduled to work a shift that would begin after his court appearance.
Id. at 8.
Other jurisdictions consider similar factors to conclude that a journey is onerous. In
Eady, 377 So. 2d at 696, the Supreme Court of Florida explained that the analysis centers
on “the relative burden of the journey on the employee” in comparison with “the extent of
the task to be performed in the context of the employee’s duties.” Other factors in assessing
the employee’s burden include “[t]he suddenness of the assignment from the employer, the
time and length of the journey, and any special circumstances . . . .” Id.; see also Johnson,
24
647 P.2d at 594; State v. Indus. Comm’n of Utah, 685 P.2d 1051, 1055 (Utah 1984); Schell
v. Blue Bell, Inc., 637 P.2d 914, 917 (Okla. Civ. App. 1981).
Maryland precedent, and that of other jurisdictions demonstrates that onerousness
requires a consideration of all the facts and circumstances of the journey. We think
appropriate factors include the burden of the journey in comparison with the task to be
completed, suddenness, urgency, the length and time of the journey, as well as whether the
employee was required to work on a day that she did not normally work. See Reisinger-
Siehler, 165 Md. at 198–99; Barnes, 109 Md. App. at 558; Eady, 377 So. 2d at 696; 2
Larson, supra, at § 14.05[3], at 14-11.
The undisputed facts relating to onerousness in this case are: (1) Calvo was required
to attend a mandatory work training on a day she did not typically work; and (2) she was
required to go to a different location than her usual worksite.9 We observe that in Barnes,
109 Md. App. at 560, the Court of Special Appeals found onerousness because Barnes was
required to go to work on her day off. This factor brings Calvo’s case closer to Barnes,
id., than Jakelski, 45 Md. App. at 8. See also Fairchild Space Co. v. Baroffio, 77 Md. App.
494, 501 (1989) (no special mission if the only special element is that the employee was
required to come in earlier than usual).
9
The County is correct that the length of the journey is relevant to onerousness. See
Barnes, 109 Md. App. at 558; 2 Larson, supra, at § 14.05[3], at 14-10–11. But it is not
dispositive. We also observe that in its motion for summary judgment, and during the
hearing, the County did not offer any information about the length of the journey, other
than to point out that the training notice provides directions from the Silver Spring Depot
to the Gaithersburg Depot.
25
The Circuit Court concluded that the County’s requirement that Calvo attend the
training on her day off was “of no moment.” The Court of Special Appeals likewise
ignored this factor, stating that there was no evidence to support onerousness other than
the change in worksite. Calvo, 2016 WL 2666161, at *7. Both Courts erred in this respect.
Barnes and authority from other jurisdictions support application of the special mission
exception when the employee was called in to perform a task on a day the employee did
not ordinarily work.10
With regard to the burden of the journey in comparison with the task to be
performed, the facts show that Calvo was required to spend a full day in training after her
journey in. So clearly, this case does not fit within the rule that an arduous journey to
complete a relatively negligible task may be a means of reaching onerousness. See 2
Larson, supra, at § 14.05[3], at 14-10–11. But there is more than one way to qualify as a
special mission, and here, the most important factor is that Calvo was required to attend
the work-related function on a day she did not normally work.
The County is correct that cases addressing the special mission exception have
considered urgency and suddenness in applying the mission. See Reisinger-Siehler, 165
Md. at 198; Alford, 270 Md. at 363; Barnes, 109 Md. App. at 560–61. It is undisputed that
Calvo, unlike Alford or Barnes, was given 10 days’ notice of the training, rather than
suddenly being called in to work. But, as the Court of Special Appeals correctly pointed
out, urgency is a sometimes sufficient, but not necessary condition that can transform a trip
10
See supra note 8 (listing cases).
26
into a special mission. Calvo, 2016 WL 2666161, at *7; see also 2 Larson, supra,
§ 14.05[5], at 14-13. As such, we do not find the County’s argument about urgency
persuasive.
The County also contends that Calvo was not exposed to any special hazards by
being required to attend the training on her day off at a different location. In Baroffio, 77
Md. App. at 501 n.5, the Court of Special Appeals observed that 1 Larson, Workmen’s
Compensation Law, § 16.11, at 4-154–4-157 (1985), supports application of the special
mission exception “if the employee is required to report to work so early or remain so late
that hazards are created or magnified . . . .” Larson’s Workers’ Compensation Law cites
cases suggesting that extended hours of work may support application of the exception
when extraordinary demands of employment substantially increase the hazards of the
commute. See 2 Larson, supra, at § 14.05[4], at 14-11–12. But other Maryland cases
addressing the special mission exception have not treated this as a necessary condition, and
we decline to do so today. See Reisinger-Siehler, 165 Md. at 198–99; Alford, 270 Md. at
364; Barnes, 109 Md. App. at 564.
Our conclusion that an employer-assigned training at a different location may rise
to the level of a special mission is supported by cases from other jurisdictions. See McLin
v. Indus. Specialty Contractors, Inc., 851 So. 2d 1135, 1142 (La. 2003) (employee
attending an off-site mandatory safety meeting after work hours); Edens v. New Mexico
Health & Soc. Servs. Dep’t, 547 P.2d 65, 68 (N.M. 1976) (employees required to attend
special meeting in other city); Brown, 569 S.E.2d at 203 (employee required to attend
training at different location).
27
Our review of the facts and the law lead us to conclude—in this admittedly close
case—that the evidence created permissible inferences from which the jury could have
rationally concluded that the special mission exception applied.11 Accordingly, the Circuit
Court erred in granting summary judgment against Calvo on the grounds that the special
mission exception did not apply. Kelly, 391 Md. at 80; Jewel Tea Co. v. Blamble, 227 Md.
1, 4 (1961); Moore, 175 Md. at 45.
CONCLUSION
The Circuit Court did not err in its conclusion that the going and coming rule, rather
than the traveling employee doctrine, controlled Calvo’s case. But because the undisputed
facts permit a reasonable conclusion that the special mission exception to the going and
coming rule applies, the Circuit Court erred in granting summary judgment against Calvo.
JUDGMENT OF THE COURT OF
SPECIAL APPEALS REVERSED. CASE
REMANDED TO THAT COURT WITH
INSTRUCTIONS TO REVERSE THE
JUDGMENT OF THE CIRCUIT COURT
FOR MONTGOMERY COUNTY AND
REMAND THE CASE TO THAT COURT
FOR TRIAL. COSTS IN THIS COURT
AND THE COURT OF SPECIAL APPEALS
TO BE PAID BY THE RESPONDENT.
11
Calvo did not file a cross-motion for summary judgment. Accordingly, because
we conclude the grant of summary judgment was improper, the appropriate remedy is a
remand to the Circuit Court for a trial before a jury, who can decide whether, under the
facts of this case, Calvo’s injury is compensable.
28
Circuit Court for Montgomery County
Case No. 412413V
Argued: February 5, 2018
IN THE COURT OF APPEALS
OF MARYLAND
No. 48
September Term, 2017
RINA CALVO
v.
MONTGOMERY COUNTY,
MARYLAND
Barbera, C.J.
Greene
Adkins
McDonald
Watts
Hotten
Getty
JJ.
Dissenting Opinion by Greene, J., which
Barbera, C.J. and Getty, J., join.
Filed: May 21, 2018
I respectfully dissent.
The Maryland Workers’ Compensation Act (“Act”) benefits persons who suffer “an
accidental injury that arises out of and in the course of employment.” Maryland Code,
Labor and Employment Article, § 9-101(b)(1). Generally, the Act excludes compensation
benefits for injuries that occur when an employee is going to or coming from the workplace.
When the “going and coming” rule applies, compensation benefits are denied because the
injuries do not “arise out of and in the course of employment.” Board of Cnty. Comm’rs
for Frederick Cnty. v. Vache, 349 Md. 526, 531, 709 A.2d 155, 158 (1998); see also Alitalia
Linee Aeree Italiane v. Tornillo, 329 Md. 40, 44, 617 A.2d 572, 574 (1993). The rationale
of the “going and coming” rule is rooted in the idea that “the Act does not protect
employees against the common perils of life and the dangers of ordinary commuting are
dangers that are common to all people.” Barnes v. Children’s Hosp., 109 Md. App. 543,
555, 675 A.2d 558, 564 (1996) (internal citations omitted). We have, of course, recognized
several exceptions to the “going and coming” rule. As we explained in Vache, several
exceptions to this general rule include:
1. [W]here the employer furnishes the employee free transportation to and
from work, the employee is deemed to be on duty, and an injury sustained by
the employee during such transportation arises out of and in the course of
employment. 2. Compensation may also be properly awarded where the
employee is injured while traveling along or across a public road between
two portions of the employer’s premises. 3. The “proximity” exception
allows compensation for an injury sustained off-premises, but while the
employee is exposed to a peculiar or abnormal degree to a danger which is
annexed as a risk incident to the employment. 4. Injuries incurred while the
employee travels to or from work in performing a special mission or errand
for the employer are likewise compensable.
349 Md. at 532, 709 A.2d at 158. (Emphasis added) (internal citations omitted). In the
present case, we are concerned with the last exception, the special mission or errand rule.
The special mission rule has been explained as follows:
When an employee, having identifiable time and space limits on the
employment, makes an off-premises journey which would normally not be
covered under the usual going and coming rule, the journey may be brought
within the course of employment by the fact that the trouble and time of
making the journey, or the special inconvenience, hazard or urgency of
making it in the particular circumstances, is itself sufficiently substantial to
be viewed as an integral part of the service itself.
Larson’s Workers’ Compensation Law, § 14.05 at 14-5 (2017) (footnotes omitted).
Additionally, the rule has been framed in terms of the “special degree of urgency or
inconvenience[:]”
[w]hen the making of the journey, or the special degree of urgency or
inconvenience under which the journey is made, is of such a character that
the journey itself constitutes a substantial part of the service that the
employee is rendering, an employee is considered to be acting in the course
of employment.
See Barnes, 109 Md. App. at 556, 675 A.2d at 564 (citing Arthur Larson & Lex K. Larson,
The Law of Workmen’s Compensation, § 16.00 (1992)).
Despite the difficult task of precisely defining a “special mission,” the Court of
Special Appeals has distilled the special mission rule into three factors that, when taken
together, tend to suggest whether “a mission is sufficiently ‘special’ to be brought within
the ambit of the rule.” Barnes, 109 Md. App. at 557, 675 A.2d at 565. Those factors
include: (1) the relative regularity of the journey in the context of the employee’s normal
duties; (2) the onerousness of the journey in light of the service the employee must perform
2
at the workplace; and (3) the suddenness, or element of urgency, of the call to work. See
id. at 557-59, 675 A.2d. at 565.
The first factor considers whether the journey is “relatively regular.” If, “in the
context of the employee’s normal duties,” the journey is relatively regular then there is a
“‘strong presumption’ that the trip is not special and instead falls within the normal going
and coming rule.” Id. at 557, 675 A.2d at 565. The second factor weighs the onerousness
of the journey in tandem with the service to be performed at the conclusion of the journey.
A service that is of little consequence but requires a long or onerous journey is more likely
a special mission. See id. at 558, 675 A.2d at 565. Finally, the third factor examines “the
‘suddenness’ of the call to work or whether it was made under an ‘element of urgency’[.]”
Id. For example, a court may consider whether the “employee must drop everything and
travel to the workplace.” Id.
In this case, the material facts relevant to the application of the special mission rule
are not in dispute. Ms. Calvo was injured while traveling from her home to a required
work-related training on a Saturday, she suffered injuries as a result of an accident that
occurred while she was traveling to the training, and she filed a claim under the Act. When
measured against the three Barnes factors, and taken together as a whole, the undisputed
facts do not tend to suggest that Ms. Calvo’s “mission [wa]s sufficiently ‘special’ to be
brought within the ambit of the rule.” Id. at 557, 675 A.2d at 565. In my view, Ms. Calvo’s
journey was not sufficiently irregular, onerous, or unusual to constitute a “special mission.”
3
a. Regularity
With respect to the first factor relating to the relative regularity of her journey in the
context of Ms. Calvo’s normal duties, the parties do not dispute that:
• The travel to the scheduled training was sufficiently work-related.
• But for Ms. Calvo’s obligation to attend the training, she would not
have been in route that day.
• The County mandated that Ms. Calvo attend the training as part of her
employment.
• The training occurred on an annual basis.
• Ms. Calvo has attended the training in previous years.
In the case of Mayor and City Council of Baltimore v. Jakelski, the Court of Special
Appeals concluded that a police officer’s monthly appearances in traffic court were not
sufficiently special for the officer to recover for injuries sustained in an accident on his
way to traffic court to testify. 45 Md. App. 7, 11-14, 410 A.2d 1116, 1119-20 (1980), cert.
denied, 287 Md. 753 (1980). The intermediate appellate court explained that the officer’s
court appearance was not “an isolated obligation” but was “a regular duty” that was
performed “periodically.” Id. at 13, 410 A.2d at 1120. The court did not define regular or
periodic for purposes of the special mission rule, noting only that the officer “was regularly
compelled to attend [court] on a monthly basis.” Id. at 14, 410 A.2d at 1120.
The Majority Opinion in the present case concludes that Jakelski is “an uneasy fit
as precedent here.” Maj. Slip Op. at 20. The analysis of the Majority Opinion turns on the
rationale that the once per month court appearances in Jakelski are incompatible with the
once per year training for Ms. Calvo. Given the language used by the Jakelski court to
describe the officer’s court appearances—“[not] an isolated obligation”, “regular duty,”
“periodically”—it cannot be said that the rule’s application depends on one rigid temporal
4
definition, e.g. monthly. See Jakelski, 45 Md. App. at 13, 410 A.2d at 1120. An annual
obligation is as periodic as a monthly or weekly obligation. See Merriam Webster
Collegiate Dictionary 862 (10th ed. 2001) (defining “periodic” as “occurring or recurring
at regular intervals”). Ms. Calvo could anticipate, indeed even expect, that she would have
to attend mandatory training on an annual basis, just as the officer in Jakelski could
anticipate that he would appear in traffic court on a regular basis. That Ms. Calvo’s journey
took place only once per calendar year does not, by itself, transform the nature of the
journey into an irregular, unpredictable, or special mission.
b. Onerousness of the journey in light of the service to be performed
With respect to the second factor involving “the onerousness of the journey in light
of the service the employee must perform at the workplace[,]” the parties do not dispute
that:
• Ms. Calvo regularly worked Monday through Friday.
• Ms. Calvo was required to attend the training on a Saturday.
• Ms. Calvo’s regular work site was the Silver Spring Bus Depot.
• Gaithersburg, the location of the training, was a different location than
Silver Spring, her usual work site.
• The training was related to customer service.
In Barnes, the Court of Special Appeals determined that the special mission rule
applied where an employee had been called into her workplace on a Saturday to complete
an accounting report that was due that day. 109 Md. App. 543, 675 A.2d 558 (1996). There
was no evidence of “the frequency with which Barnes made weekend trips to the Hospital
or the circumstances under which such trips were made.” Id. at 560, 675 A.2d at 566
(footnote omitted). Moreover, there was no evidence that the employee “regularly made
5
weekend trips to the Hospital.” Id. at 559, 675 A.2d at 566. In analyzing the second factor,
the intermediate appellate court concluded that the trip was “sufficiently onerous” based
on numerous considerations, including that the journey “required Barnes to report to the
office on a day on which she did not expect to work” and “she was engaged in a personal
matter at the time she was paged.” Id. at 560, 675 A.2d at 566.
The Majority Opinion zeroes in on the fact that Ms. Calvo, as was also true in
Barnes, “was required to work on a day she did not normally work.” Maj. Slip Op. at 22-
23. According to the Majority Opinion’s analysis of Barnes, the intermediate appellate
court “found onerousness because Barnes was required to go to work on her day off.” Id.
at 25. That characterization, however, imprecisely narrows the scope of the Barnes
analysis. The intermediate appellate court considered more than the fact that the
employee’s trip was on a day that “was not a normally scheduled work day.” It also
weighed the regularity of her making weekend trips to the hospital, the unusualness of
being contacted during off-hours as well as the frequency and circumstances under which
she made weekend trips to the hospital. See Barnes, 109 Md. App. at 559-60, 675 A.2d at
566.
Nevertheless, even if the Majority only focused on the onerousness factor in the
instant case, it would come up short. There were no facts—other than it was not a normally
scheduled work day— to indicate that Ms. Calvo’s journey to the training worksite on a
Saturday was onerous in terms of its length, the distance the employee had to travel, the
travel conditions, or “the circumstances under which it [wa]s made, i.e. the time of day,
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whether it [wa]s a regular workday, or the conditions of travel” See Barnes, 109 Md. App.
at 558, 675 A.2d at 565.
Moreover, the undisputed facts of this case do not warrant the conclusion that the
journey in light of the service to be performed, i.e. participation in training to improve the
employer’s customer service, constituted a substantial part of the service that Ms. Calvo
rendered to her employer. The relationship between Ms. Calvo’s journey and the service
to be performed is illustrated by the hypothetical in Barnes: “if a janitor [who] walks five
blocks to spend two hours working at a church in the evening, it would be difficult to
conclude that the journey is a significant part of the total service.” 109 Md. App. at 558,
675 A.2d at 565. The record before us is devoid of facts that would explain the onerousness
of the journey in light of the service to be performed, such as:
• Travel conditions on the day of the journey,
• Time of day of the journey as compared to usual work obligation,
• Weather conditions on the day of the journey,
• Difference in the distance between Ms. Calvo’s usual work site and the
training work site, or
• Whether the employer had directed the employee’s course of travel.
I am persuaded by the reasoning of Carberry v. State, Div. of State Police, 652 A.2d 232(N.J. Sup. Ct. 1995), which rejected the application of the special mission rule in a case
involving an officer who was injured while returning from the physician’s office. The
officer’s employer had directed him to obtain a medical clearance from a physician prior
to returning to work. Id. at 234. The New Jersey intermediate appellate court recognized
that although the employer directed the officer to obtain the clearance prior to returning to
full-time duty, the employer “did not dictate, nor did it have any control over the course of
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petitioner’s travel, or manner by which he was transported to [the doctor’s] office.” Id. at
236. Similarly, in the present case, the employer directed that Ms. Calvo obtain the
required training. In no way can it be said that the employer had any control Ms. Calvo’s
travel, or manner of travel to the training site.
c. Suddenness, or element of urgency
With respect to the third factor of “suddenness, or element of urgency,” the parties
do not dispute that:
• Ms. Calvo was given 10 days of advance notice of the training.
• Ms. Calvo attended a make-up training session later that year.
When this Court first recognized the special mission rule in Reisinger-Siehler Co.
v. Perry, we applied the rule in a case where an employee was called to investigate unusual
activity at his workplace between the hour of 11 and 12 o’clock at night. 165 Md. 191,
193, 167 A. 51 (1933). Upon completing his duties at the store and while returning home,
the employee suffered injuries after being struck by a vehicle. Id. at 193, 167 A. at 51.
There, our rationale was based on the premise that the employee had been called
unexpectedly to his workplace at midnight to check on an unusual circumstance. Given
these circumstances, we concluded that the journey was a special mission on behalf of the
employer.
Likewise, in Barnes, the Court of Special Appeals considered the urgency factor of
the employee who was called into work on a Saturday. There, the intermediate appellate
court noted that the employee who usually ran the accounting report was not available,
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thus, making Barnes’s trip necessary. 109 Md. App. at 560-61, 675 A.2d at 566. The
Court of Special Appeals properly focused on the nature of the journey as one that was
unexpected, unusual, and urgent, and, therefore, correctly determined that the journey was
a special mission on behalf of her employer.
In the instant case, the Majority Opinion disregards any consideration of urgency,
or lack thereof, in its analysis. See Maj. Slip Op. at 26-27. By doing so, the Majority
Opinion gives short shrift to the import of this factor in the Barnes analysis. Significantly,
the Court of Special Appeals, in Barnes, observed, “the fact that Barnes was called on a
Saturday and instructed to report to the Hospital indicates that the task was . . . obviously
urgent . . . because the employee who usually did the work was not available.” 109 Md.
App. at 560-61, 675 A.2d at 566. In Ms. Calvo’s case, there was no evidence of an
emergency situation, much less evidence that the training was an urgent matter. The instant
case stands in strong contrast to the Reisinger-Siehler Co. case, as well, because “the
employee rushed to a store at which he was employed after hearing a report of a possible
break-in.” Barnes, 109 Md. App. at 558, 675 A.2d at 565. In this way, Ms. Calvo’s journey
differs from the employees’ journeys in both Barnes and Reisinger-Siehler Co. Ms.
Calvo’s journey, however, is on similar footing as the officer’s journey in Carberry. The
Superior Court of New Jersey in that case observed that the officer endured “no such
‘enhanced exposure to hazard” on his journey and concluded that “the inconvenience in
making the trip to [the doctor’s] office was not ‘sufficiently substantial to be viewed as an
integral part of the service itself.’” 652 A.2d at 236-37 (quoting Larson, § 16.11 at 4-204).
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Although I agree with the intermediate appellate court that “an emergency is not
always needed for there to be a special mission[,]” see Dir. of Fin. for City of Baltimore v.
Alford, 270 Md. 355, 311 A.2d 412 (1973), evidence of an urgency was entirely lacking
from the record in the present case. Thus, I depart from the Majority’s wholesale exclusion
of any consideration of urgency in its analysis of the facts before us. The urgency factor,
or lack thereof, is relevant and informs the analysis of an employee’s journey as much as
the other factors. It is undisputed that Ms. Calvo was given 10 days of advance notice of
the date scheduled for training. Moreover, when Ms. Calvo was not able to attend the first
training, she attended a training session held later that same year.
As the Majority Opinion explains, and I agree, where “the facts have been
ascertained and agreed upon by the parties, or are undisputed and there is no dispute as to
the inferences to be drawn from the facts, the question becomes one of law and may be
decided by the Court.” Harrison v. Cent. Constr. Co., 135 Md. 170, 180, 108 A. 878(1919). Where there are facts, or inferences drawn therefrom, that are relevant to the
regularity, onerousness, or urgency of the journey that are in dispute, the question of
whether the special mission rule applies is appropriate for the jury. Cf. Whitehead v.
Safeway Steel Products, Inc., 304 Md. 67, 75, 497 A.2d 803, 807 (1985) (“[T]he question
as to whether the injury occurred out of or in the course of employment is ordinarily, like
negligence or want of probable cause, a mixed question of law and fact[.]” (quoting
Harrison, 135 Md. at 180, 108 A. at 878)). Here, there are no facts in dispute, and no
dispute as to the inference to be drawn from the facts. The Circuit Court, therefore,
properly decided the question of law. See Bogatsky v. Swerdlin, 152 Md. 18, 22, 135 A.
10416, 418 (1926) (“[I]f the facts are conceded or undisputed, there is no issue of fact to be
submitted to the jury[.]”).
Accordingly, the Circuit Court did not err in granting summary judgment as the
special mission exception did not apply. The County was entitled to judgment in its favor
as a matter of law, as there was no genuine dispute as to any material fact. Therefore, I
would affirm the judgment of the Court of Special Appeals.
Chief Judge Barbera and Judge Getty have authorized me to state that they join in
this dissenting opinion.
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