State v. Okafor ( 2015 )

REPORTED
IN THE COURT OF SPECIAL APPEALS
OF MARYLAND
No. 1691
SEPTEMBER TERM, 2014
STATE OF MARYLAND
v.
OLIVER O. OKAFOR
Eyler, Deborah, S.,
Nazarian,
Moylan, Charles E., Jr.
(Retired, Specially Assigned),
JJ.
Opinion by Eyler, Deborah, S., J.
Filed: October 2, 2015
Oliver O. Okafor, the appellee, is employed as a Trooper First Class by the
Maryland State Police (“MSP”), an agency of the State of Maryland, the appellant. On
January 25, 2013, while in uniform and driving to work in his own car, Trooper Okafor
was involved in an automobile accident and sustained personal injuries.
After Trooper Okafor successfully pursued a claim for benefits against the State
before the Workers’ Compensation Commission (“Commission”), the State brought an
action for judicial review in the Circuit Court for Baltimore County. It filed a motion for
summary judgment, which was denied. The case was tried to a jury, which found that
Trooper Okafor had sustained an accidental injury arising out of and in the course of his
employment. Judgment was entered, and the State filed a timely motion for judgment
notwithstanding the verdict or new trial. The court denied the motion and this appeal
followed.
The State presents two questions for review, which we have combined and
rephrased as follows:
Did the circuit court err by declining to rule as a matter of law that Trooper
Okafor’s accidental injury did not arise out of and in the course of his
employment?1
1
The questions as framed by the State are:
I. Did the Circuit Court err in denying summary judgment to the
Employer and by affirming the decision of the Commission dated
July 15, 2013, which found that Claimant sustained an accidental
injury arising out of and in the course of his employment?
II. Did the Circuit Court err in denying judgment notwithstanding the
verdict to the Employer and by affirming the decision of the
(Continued…)
For the reasons to follow, we shall affirm the judgment of the circuit court.
FACTS AND PROCEEDINGS
At the relevant time, Trooper Okafor was working at the Forestville barrack, in
Prince George’s County, and was living in Great Mills, St. Mary’s County, 50 miles
away.
It is the policy of the MSP to assign each Trooper a patrol car to use during work
hours and also when off duty, including when driving to and from work. On January 24,
2013, the day before the accident, Trooper Okafor was working the 2 p.m. to midnight
shift. He drove his patrol car to work and used it during work. Late in the shift, it began
to experience engine problems. He drove it to the College Park barrack, which houses
the repair facility for all patrol cars belonging to the MSP. Repair facility workers
determined that Trooper Okafor’s patrol car needed to be left there for repair.
Trooper Okafor routinely kept his personal vehicle, a 2008 Nissan Sentra, at the
College Park barrack. By the time he dropped his patrol car off it was the end of his shift.
He drove his Sentra home.
The next day, January 25, 2013, Trooper Okafor again was scheduled to work the
2 p.m. to midnight shift, at the Forestville barrack. He got up and dressed in his uniform,
complete with service revolver, baton, hand radio, handcuffs, badge, and all required
(…continued)
Commission dated July 15, 2013, which found that Claimant
sustained an accidental injury arising out of and in the course of his
employment?
2
medals and insignia. He left home in his Sentra and began the drive to the Forestville
barrack. The Sentra was not fitted with a police radio, sirens, or any other police
equipment. Trooper Okafor’s hand radio, which he wore on his shoulder, had a limited
range of communication.
Trooper Okafor was running late for work. At 1:53 p.m., his Sentra was clipped
by another vehicle; the impact caused Trooper Okafor to lose control of the Sentra, which
left the roadway and collided with a tree. The site of the accident was about 35 miles
from the Forestville barrack. Trooper Okafor sustained injuries and was transported to a
hospital for treatment.
On February 20, 2013, Trooper Okafor filed a claim for benefits with the
Commission. The State filed contesting issues. A hearing was held on May 22, 2013.
On July 15, 2013, the Commission issued an order that, as relevant, found that Trooper
Okafor had sustained an accidental injury arising out of and in the course of his
employment and that his claim was not barred by the “going and coming rule.” The
Commission awarded Trooper Okafor temporary total disability benefits and medical
expenses.
As noted, the State brought an action for judicial review challenging the award.
After the parties engaged in discovery, the State filed a motion for summary judgment,
which was denied. A jury trial was held on July 30, 2014. Two witnesses testified:
Trooper Okafor and Lieutenant Roland Butler, who at the time of the accident was
Trooper Okafor’s supervisor.
3
Trooper Okafor, called adversely by the State, testified about the events as we
have recounted them. He stated that, when he dropped his patrol car off at the College
Park barrack for repair on January 24, 2013, it was almost midnight and there were no
other patrol cars available at that location for him to use.
Trooper Okafor explained that when he is driving his own car, as opposed to a
patrol car, he may arrest anyone he sees committing a felony, and he may stop and render
aid if he happens upon an accident or other situation in which people need help. He may
not make traffic stops, write tickets, or pursue vehicles in a chase.
Lieutenant Butler also was called by the State. His testimony largely was
consistent with Trooper Okafor’s. He agreed that a Trooper driving his personal vehicle
is not permitted to exercise police powers except to make an arrest upon witnessing a
felony or to render aid. He acknowledged that when a Trooper who is off duty but in
uniform and driving his personal vehicle gets out of his vehicle, for instance to stop at a
convenience store, he is a “billboard” for the Maryland State Police and, “in a sense,” is
providing a service to the citizens of Maryland. He stated that a Trooper driving his own
vehicle to work is not entitled to reimbursement for the cost of gasoline.
Lieutenant Butler did not testify that there was a patrol car available for Trooper
Okafor to take upon turning his patrol car in at the College Park barrack late at night on
January 24, 2013. He stated, however, that Troopers who turn their patrol cars in for
repair often will contact other Troopers who are off duty or on vacation to borrow one of
their patrol cars. He estimated that there were nine Troopers in the area of the College
Park barrack from whom Trooper Okafor could have borrowed a patrol car that night.
4
At the close of the State’s case, both parties moved for judgment. The court
denied the motions. Trooper Okafor then incorporated his own testimony and that of
Lieutenant Butler into his case, moved the Commission’s order into evidence, and rested.
The State renewed its motion for judgment, but the court reserved ruling on it.
By special verdict, the jurors found that Trooper Okafor had sustained an
accidental injury arising out of and in the course of his employment. As noted, after
judgment was entered affirming the Commission’s order in favor of Trooper Okafor, the
State filed a motion for judgment notwithstanding the verdict or for new trial, which was
denied.
DISCUSSION
(A)
Under the Maryland Workers’ Compensation Act (“the Act”), “[w]hen [an
employee] seeks compensation for an accidental personal injury under [Md. Code (1999,
2008 Repl. Vol.), section 9-101(b)(1) of the Labor and Employment Article (“LE”)] and
[LE section 9-501], he or she must demonstrate that it both arose out of and in the course
of the employment.” Montgomery Cty. v. Wade, 345 Md. 1, 9 (1997) (emphasis in
original).
“An injury arises out of employment when it results from some obligation,
condition, or incident of employment.” Livering v. Richardson’s Restaurant, 374 Md.
566, 574 (2003). Thus, “[a]rising out of” refers “to the causal connection between the
employment and the injury” sustained. Roberts v. Montgomery Cty., 436 Md. 591, 604
(2014). See also Arthur Larson, Workers’ Compensation Law § 3.05 (2015) (“An injury
5
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.”) (emphasis in original). An injury does not arise out of the
employment if, absent additional facts, “the causative hazard is a common peril to which
the public-at-large is exposed, not just the [employee.]” Richard Gilbert et al., Maryland
Workers’ Compensation Handbook § 5.04 (4th ed. 2013) (citations omitted).
Whether an injury occurred “in the course of” employment is a function of the
“time, place, and circumstances of the accident in relation to the employment.” Roberts,
436 Md. at 604; Livering, 374 Md. at 577. An injury occurs in the course of employment
when it happens “during the period of employment at a place where the employee
reasonably may be in performance of his or her duties and while fulfilling those duties or
engaged in something incident thereto.” Wade, 345 Md. at 11. In deciding whether an
injury occurred in the course of employment, “the entire sphere and period of
employment may be considered and also whether the employee has placed himself
outside his employment, and, if so, how far.” Knoche v. Cox, 282 Md. 447, 454 (1978)
(citations omitted). This is a fact-specific inquiry. Md. Cas. Co. v. Ins. Co. of N. Am.,
248 Md. 704, 708 (1968).
Maryland case law is clear that an injury sustained by an employee while
commuting to or from work is “not considered to arise out of and in the course of
employment” and therefore is not compensable. Roberts, 436 Md. at 606; Morris v. Bd.
of Educ. of Prince George’s Cty., 339 Md. 374, 379 (1995); see also Rumple v. The
Henry H. Meyer Co., Inc., 208 Md. 350, 357 (1955). This settled law is known as the
6
“going and coming rule.” Its premise is that “hazards encountered by an employee while
commuting to work are common to all workers, no matter what their job, and hence, such
risks cannot be directly attributable to a person’s particular employment.” Morris, 339
Md. at 380.
Over the years, the Maryland appellate courts have recognized several exceptions
to the going and coming rule. In Board of County Commissioners v. Vache, 349 Md.
526, 532 (1998), the Court of Appeals identified four primary exceptions. We shall
discuss two of them–the free transportation and the special errand exceptions–infra. The
other two are the proximity exception and an exception for employee travel on a public
street between two areas of the employer’s premises.2 Additionally, there is the “own
conveyance exception,” which applies when the employer requires the employee to
furnish his or her own vehicle for work, see Morris, 339 Md. at 383; the “employer
conveyance exception,” which applies when the employer controls the means of
transportation the employee uses to drive to and from work, see Watson v. Grimm, 200
Md. 461 (1952); and the “dual purpose exception,” which we also shall discuss infra.
Outside the ambit of the going and coming rule and its exceptions, the Court of
Appeals has held that injuries sustained by an off duty police officer driving an assigned
patrol car on a personal errand arise out of and in the course of employment when the
2
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.” Vache, at 532 (citing Pariser Bakery v.
Koontz, 239 Md. 586, 591 (1965)).
7
primary purpose of driving the patrol car is to benefit the employer police department.
Wade, 345 Md. 14.
(B)
The State contends the undisputed material facts entitled it to judgment as a matter
of law, and therefore the court should have granted his motion for summary judgment, his
motion for judgment at the close of the evidence, or his motion for judgment
notwithstanding the verdict. See Md. Rules 2-501, 2-519, and 2-532. It argues that
Trooper Okafor was driving to work in his own car when the accident happened, so under
the going and coming rule his injuries were not compensable, and none of the exceptions
to that rule applied. And, because Trooper Okafor did not exercise his police powers
during the ride, either by stopping a felony in progress or rendering aid, his drive to work
was not for the benefit of the MSP, and consequently the Wade case does not support a
finding that his injuries arose out of and in the course of his employment.
In the factual portion of his brief, Trooper Okafor mentions that all of the
exceptions to the going and coming rule applied. His argument focuses on Wade,
however. He maintains that because he could have taken action, albeit limited, to
exercise his police powers during the drive to work, and he was in uniform, he was acting
to the benefit of the MSP, and therefore his injuries were compensable. He emphasizes,
moreover, that the Commission’s decision that his injuries arose out of and in the course
of his employment was in evidence, and for that reason that issue was not subject to
decision as a matter of law.
8
(C)
The State relies heavily on Mayor and City Council of Baltimore v. Jakelski, 45
Md. App. 7 (1980), to support its arguments on appeal. We believe that reliance to be
misplaced. Before explaining why, we must discuss the free transportation exception to
the going and coming rule.
The free transportation exception first was recognized by the Court of Appeals in
Harrison v. Central Construction Co., 135 Md. 170 (1919). There, the employer
contracted with its employees to provide free train transportation from Baltimore City,
where they lived, to its construction site in northeastern Baltimore County, where they
worked. One day, the employee in question was injured when he was attempting to get
on the free train. He applied to the Commission for compensation, unsuccessfully. The
circuit court upheld the denial.
The Court of Appeals reversed, holding that the going and coming rule did not
preclude the employee from receiving benefits. The Court explained:
[W]here the workman is employed to work at a certain place, and as a part
of his contract of employment there is an agreement that his employer shall
furnish him free transportation to or from his work the period of service
continues during the time of transportation, and if an injury occurs during
the course of transportation it is held to have arisen out of and in the course
of the employment.
135 Md. at 177-78.
In Ryan v. Kasakeris, 38 Md. App. 317 (1977), this Court comprehensively
analyzed the body of free transportation cases that developed after Harrison. The issue
in Ryan was whether injuries a cleaning lady suffered while crossing the street from her
9
bus stop to the house of the family who employed her were compensable. When the
cleaning lady first was employed by the family, the wife drove her to and from work
every work day. That arrangement later became unmanageable because it conflicted with
the wife’s child care responsibilities. To accommodate the family, the arrangement was
changed so the cleaning lady would ride the bus to and from work and the family would
pay for her bus transportation.
We gleaned from our analysis of the free transportation exception cases that the
terms of the employment contract dictate whether the exception will apply. We
explained:
[A]n injury occurring while an employee is on his way to or from work,
which otherwise would be noncompensable as being the result of normal
hazards unconnected with the employment, becomes compensable only if,
under the terms of the employment, the employer is under some obligation
to provide the transportation to the employee. It is that underlying
obligation which brings the travel within the scope of the employment.
Where that obligation exists, the method of carrying it out becomes
irrelevant; but where it does not exist, there is no coverage under this
exception.
38 Md. App. at 328–29 (emphasis added). We cautioned that the employer’s mere
reimbursement of the employee’s transportation expenses is not, in and of itself,
sufficient to extend coverage to the period of travel to and from work; rather, there must
be an obligation under the employment agreement for the employer to furnish
transportation to and from work. The contractual obligation may be performed by paying
for transportation costs, but payment of those costs without such an underlying obligation
does not trigger the free transportation exception.
10
In light of the employment agreement between the cleaning lady and her employer
family, we held that the free transportation exception applied. From the outset, the
family had agreed to provide the cleaning lady with transportation to and from work as
part of her employment. The mode of transportation only was changed from car to bus
for the family’s convenience. The family’s payment for bus fare was not merely a
reimbursement but was the means by which it performed its contractual obligation to
provide the cleaning lady free transportation.
We concluded, moreover, that the fact that the cleaning lady was injured after she
got off the bus and while she was walking from the bus stop to the family’s house did not
take her injuries out of the free transportation exception.
The very rationale of the “free transportation” doctrine is that the travel is
part of the employment, that the day’s employment therefore commences
when the employee starts on the course of his journey, and that the
employee is performing his job-related duties while in transit. Upon that
premise, at least from the time [the cleaning lady] stepped on the bus, she
was in the course of her day’s employment. That being so, [the cleaning
lady], during the course of her walk from the bus stop to the [family’s]
home, was “at a place where (s)he reasonably may be in the performance of
(her) duties.” If she was working for [the family] while she was riding the
bus, she was also working for [the family] when crossing the street.
Id. at 333-34 (quoting Pariser Bakery v. Koontz, 239 Md. 586, 590 (1965)) (footnotes
omitted).
In Maryland Casualty. Co. v. Lorkovic, 100 Md. App. 333 (1994), we were faced
with the question whether the going and coming rule precluded the employee from
receiving workers’ compensation benefits for injuries he sustained in an automobile
accident while he was driving his own car from the airport to his house after a business
11
trip. The evidence showed that it was the employer’s policy to pay all the travel expenses
the employee incurred while he was on business trips, including airfare and mileage to
and from his home and the airport. We concluded that this policy and the employer’s
history of making these payments was “a sufficient ‘custom of the employer’ to infer that
[the employer] agreed to provide transportation for [the employee] at the time of his
accident.” Id. at 356 (quoting Watson, 200 Md. at 470). Therefore, the employer’s
injuries were compensable under the free transportation exception to the going and
coming rule.
We return to Jakelski, which, as noted, the State maintains fully supports its
position that Trooper Okafor’s injuries were not compensable, as a matter of law. In that
case, an officer employed by the Baltimore City Police Department (“BPD”) regularly
appeared in court once a month, in the morning, to testify about citations he had issued.
On those mornings, he dressed in his uniform and drove to the courthouse in his own car.
Upon arriving, he “punched” a time clock, and was paid starting at that time. Id. at 8.
On the day in question, the officer was driving to the courthouse to testify when he
was injured in an automobile accident. He filed a claim for benefits with the
Commission. The Commission denied the claim, ruling that because the officer’s injuries
were sustained before he “punched” in at the courthouse they did not arise out of and in
the course of his employment. The circuit court reversed (although it is not clear on what
grounds).
On appeal to this Court, the BPD argued that the going and coming rule precluded
an award of compensation. The officer responded that the “special errand” exception to
12
that rule applied. That exception, first recognized in Reisinger-Siehler Co. v. Perry, 165
Md. 191 (1933), is as follows:
When an employee, having identifiable time and space limits on his
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.
Jakelski, 45 Md. App. at 10 (citations omitted). In cases involving police officer
employees, the existence of an emergency situation, the obligation to report, and the
period of time the obligation to report lasts are relevant to whether the officer is on a
special errand. Dir. of Fin. v. Alford, 270 Md. 355, 363 (1973). If an officer is under no
special duty to report, injuries sustained while preparing for a regularly scheduled shift
are not compensable. See Police Comm’r v. King, 219 Md. 127 (1959) (holding that
beneficiaries of police officer who sustained a fatal wound when his service weapon
accidentally discharged while he was getting dressed for work were not entitled to
compensation).
We held in Jakelski that the special errand exception did not apply. Focusing our
analysis on the police officer’s status while he was in transit to the courthouse, not after
he would have arrived at the courthouse, we observed that, “[l]ike most of us, [the
officer’s] employment commenced only after he arrived, not while he was on his way
there” and hence his injuries did not arise out of and in the course of his employment.
Jakelski, 45 Md. App. at 13. We made clear that police officers do not enjoy unfettered
coverage under the Act simply because they are considered “on duty” 24-hours a day.
13
Jakelski does not support the State’s position in this case. To be sure, Trooper
Okafor was driving to work when the accident happened, so the going and coming rule
was implicated, and there was no evidence that he was on a special errand, within the
meaning of the special errand exception. The holding in Jakelski would support a similar
holding here that the special errand exception did not apply. It does not support a
conclusion that no other exception to the going and coming rule would apply in this case,
however.
There is a significant distinction between Jakelski and this case that is relevant to
the free transportation exception to the going and coming rule. In Jakelski, there was no
evidence of any agreement by the BPD to furnish its officers free transportation to and
from work. On the day of the accident, the officer was driving his own vehicle to work,
as he always did. Here, by contrast, it was undisputed that the MSP followed a policy of
assigning patrol cars to Troopers for them to use at work and also to drive to and from
work. The MSP paid for these patrol cars and supplied the gasoline necessary to drive
them. So, contrary to the State’s argument, the holding in Jakelski does not dictate that
whenever a law enforcement officer suffers injuries while driving his personal vehicle to
work, the going and coming rule applies. Rather, it leaves open the question whether the
free transportation exception to that rule may apply in some circumstances to a uniformed
police officer injured while driving his personal vehicle to work.
As noted, Trooper Okafor makes mention of the exceptions to the going and
coming rule in his brief, but relies primarily upon Wade, 345 Md. 1, to support his
position that his injuries were compensable. In Wade, an officer employed by the
14
Montgomery County Police Department (“MCPD”) was driving her patrol car when she
was injured in an automobile accident. She was not on duty. In fact, she was off duty,
dressed in street clothes, and running a personal errand.
The evidence showed that the MCPD had adopted a comprehensive program, with
a multitude of restrictions and guidelines, by which “its officers were permitted to use
their patrol cruisers as personal vehicles when not on regularly scheduled duty.” 345 Md.
at 10. Among other things, officers participating in the program were required to carry a
handgun, handcuffs, and credentials while off-duty; equip their patrol cars with “items
such as flares, a fire extinguisher, a nightstick, a tactical duty helmet, and a traffic vest
and gloves”; monitor their police radios and make traffic stops if not doing so would
“reflect unfavorably on the department”; respond to certain types of calls or incidents
brought to their attention in specified ways; and complete post-incident and monthly
activity reports. Id. at 6–7. They did not receive overtime pay for the first two hours
spent responding to a call or incident. They only could take their patrol cars outside the
county with special permission; they could not use them for transportation to secondary
employment or to further political activity; and they were prohibited from placing
bumper stickers on them. A participating officer who failed to follow the restrictions and
guidelines would face, “at minimum, expulsion from the program.” Id. at 13.
The MCPD’s purpose in adopting the program was to “provide the highest level of
police service to the community by providing greater police visibility . . . and by
enhancing the responsiveness of both on-duty and off-duty officers to calls for service.”
Id. at 6. Thus, the program provided a benefit to the MCPD.
15
The officer in question was a participant in the program and, when the accident
happened, was driving her patrol car in accordance with the program’s restrictions and
guidelines. She filed a claim with the Commission, which found that she had sustained
an injury “arising out of and in the course of employment” and awarded her
compensation. A jury in the circuit court affirmed the Commission’s decision, and, in an
unreported opinion, this Court affirmed.
The Court of Appeals granted the County’s petition for a writ of certiorari to
decide whether “by virtue of the benefits the County receives from the program, injuries
sustained by the participating officers are compensable as arising out of and in the course
of the employment within the meaning of the . . . Act.” Id. at 7–8. The Court answered
that question in the affirmative. It reasoned that the officer’s injuries arose out of her
employment because she would not have been driving her patrol car “but for her
employment and consequent participation in the program.” Id. at 11. And, because the
program conferred a privilege on participating officers that advanced the MCPD’s goal of
increasing police presence in the county, and the officer was bound by the requirements
of the program when driving her patrol car, “she may, therefore, properly be considered
to have been operating the [patrol car] under the auspices of the [MCPD] at the time of
the accident and, thus, within the course of her employment.” Id. at 13.
The going and coming rule had no application in Wade because the officer was not
driving to or from work when she was injured. Nevertheless, the MCPD argued that the
reasoning underlying the dual purpose and special errand exceptions to that rule was of
broader application, and militated against a finding that the officer’s injuries arose out of
16
and in the course of her employment. The Court addressed that argument and reached the
opposite conclusion.
The Court explained that the dual purpose exception “brings within its scope trips
that serve both business and personal missions,” id., and applies when “‘[t]he mission for
the employer [is] the major factor or, at least, a concurrent cause of the journey,’” and is
not “‘merely incidental to what the employee was doing for his own benefit.’” Id. at 14
(quoting Atlantic Refining Co. v. Forrestor, 180 Md. 517, 526 (1942)). In other words,
an employee’s injuries arise out of and in the course of his employment when they are
sustained while he is on a trip that has a work and personal purpose, so long as the work
purpose is primary and the personal purpose is incidental. The Wade Court reasoned that
because, as a program participant, the officer had to be ready at any moment to be called
into service “her personal use of the vehicle . . . was incidental to the overriding and
primary business purpose of deploying on the County’s streets an additional marked
police cruiser[.]” Wade, 345 Md. at 15.
Likewise, because, as a program participant, the officer was undertaking duties
and responsibilities “in addition to those expected of a nonparticipating officer” when she
was off duty but driving her patrol car, to the benefit of the MCPD, her status was akin to
being on a special errand or mission for the MCPD at those times. Id. at 17. Thus, “to
the extent that [she] used her [patrol car] while not on regularly scheduled duty, she was,
in effect, working,” and the injuries she sustained in that circumstance arose out of and in
the course of her employment. Id.
17
(D)
The context in which Trooper Okafor sustained his injuries–driving to work–
dictates that we start from the default position that his injuries were not compensable
under the going and coming rule. The Commission found that the going and coming rule
did not preclude compensation, i.e., that, under the circumstances, an exception to the
going and coming rule applied. That decision was in evidence, and the jury was entitled
to consider it and give it weight. The State only would have been entitled to judgment as
a matter of law if there was no reasonable factual basis whatsoever for a rational decision
by the Commission or a jury that an exception to the going and coming rule applied.
Trooper Okafor’s argument based on Wade is, in essence, a dual purpose
exception argument. He posits that, even though he was driving his own vehicle to work
when the accident happened, the purpose of his journey was two-fold: to travel from
home to work (a personal purpose) and to create a police presence on the road, to the
benefit of the MSP (a business purpose). He emphasizes that he could exercise certain
police powers even though he was not driving a patrol car (as we have explained) and
that, because he was wearing his uniform, other drivers who saw him behind the wheel
would be deterred from committing crimes such as speeding or drinking alcohol while
driving. He also points to Lieutenant Butler’s testimony that a uniformed Trooper in
public, outside any vehicle, is a “billboard” for the MSP.
At oral argument, in response to questions from the Court, counsel for both parties
agreed that the police powers that may be exercised by an officer in uniform but in a
private car rather than a patrol car are the same as the police powers that may be
18
exercised by an officer in street clothes and in a private car. In other words, the critical
distinction between when an officer can exercise full police powers, as opposed to limited
police powers, is his presence in a patrol car. Thus, in regard to exercising police powers,
it made no difference whether Trooper Okafor was wearing his uniform.
We do not doubt that some drivers and passengers, upon seeing a uniformed law
enforcement officer behind the wheel of an ordinary vehicle, would be inclined not to
speed or to commit a crime in plain sight. At most, this is a marginal increase in police
presence, altogether unlike the increase in police presence accomplished by adding patrol
cars to the roads. Police cruisers are immediately identifiable as police presence and are
highly visible to a large number of people, which is what makes their presence an
effective deterrent to crime. A uniformed officer driving an ordinary vehicle does not
generate any such level of police presence. Most drivers and passengers on the road will
not notice that a vehicle that is not marked as law enforcement is being driven by a
uniformed officer, unless they are directly next to the officer’s vehicle and happen to look
at it.
In addition, the patrol vehicle program in Wade benefitted the MCPD beyond the
deterrent effect of an increase in police presence. The participating officers were armed,
their patrol cars were fully equipped, and they were expected to exercise broad police
powers at all times when driving their patrol cars. The officers were effectively on duty,
even when they were off duty. Even when on private errands, the police officers
participating in the program were acting primarily for the benefit of the MCPD. The
same cannot be said here. As mentioned, any benefit to the MSP from Trooper Okafor
19
wearing his uniform while driving his own vehicle was slight. The primary purpose of
his trip was to get to work, not to advance the law enforcement crime fighting goals of
the MSP. The dual purpose exception did not apply.
We conclude, however, that the evidence readily could support a finding that the
free transportation exception applied. As explained, that exception arises from the
employment agreement, specifically, from an agreement by the employer to furnish free
transportation to the employee to and from work. The agreement can be express or
implied by custom. Here, it was undisputed that the MSP’s policy and custom was to
furnish its Troopers patrol cars to drive to and from work. The MSP paid for the patrol
cars, for their upkeep, and for the gasoline needed to drive them. A rational finder of fact
could conclude from that evidence that the terms of Trooper Okafor’s employment
agreement with the MSP included the provision of free transportation to and from work,
by means of a patrol car furnished and paid for by the MSP.
Of course, in this case, although the MSP furnished Trooper Okafor free
transportation to and from work, he was not making use of it when he was injured. His
free transportation—his patrol car—was out of service due to engine problems and was
being repaired at the MSP repair facility. The State maintains that, because Trooper
Okafor was driving his own car instead of the patrol car provided by the MSP, he was in
the same position as the police officer in Jakelski. This argument overlooks the evidence
of an agreement to provide free transportation in this case and is inconsistent with this
Court’s holding in Ryan.
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Ryan and the other free transportation exception cases establish that when an
employer has obligated itself to provide an employee free transportation to and from
work the employee’s work day starts when his commute to work starts (and ends when
his commute home ends). Consequently, an accidental personal injury suffered by the
employee during his commute arises out of and in the course of his employment, and the
going and coming rule does not apply. Moreover, as the holding in Ryan makes clear,
injuries sustained during the employee’s commute arise out of and in the course of
employment even when the free transportation furnished by the employer is not being
used. In Ryan, the free transportation exception applied to the injuries the cleaning lady
sustained when she was not on the bus (her free transportation) but was walking from her
bus stop to her place of employment because her work day started when she began her
commute. It did not matter that she was not making use of her free transportation when
she was injured. What mattered was that her work day already had started.
In the case at bar, the evidence supported a finding that Trooper Okafor’s
employment agreement included free transportation to and from work, and therefore his
work day began when his commute to work began. The agreement did not change from
day to day depending upon whether Trooper Okafor actually used the free transportation
the MSP promised him. The agreement remained constant and governed the start of
Trooper Okafor’s work day. Because Trooper Okafor’s work day started when he left his
house to drive to the Forestville barrack in his Sentra, the injuries he sustained during that
commute arose out of and in the course of his employment. Given the state of the
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evidence, including the Commission’s finding in Trooper Okafor’s favor, the State was
not entitled to judgment in its favor as a matter of law.
JUDGMENT OF THE CIRCUIT COURT
FOR BALTIMORE COUNTYAFFIRMED.
COSTS TO BE PAID THE APPELLANT.
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