Marbury v. Industrial Commission , 62 Ohio App. 3d 786 ( 1989 )

I must respectfully dissent from the opinion of the majority. I believe that the injury experienced by Marbury was one suffered in the course of and arising out of her employment.

The majority, construing the facts most favorably for Marbury, has found that she was acting in the course of her employment while on the bus tour. I concur in that conclusion. Marbury was at the Baltimore meeting at the direction and expense of her employer for the purpose of improving her knowledge and skills as a college registrar. There was a direct benefit to her employer as well as to Marbury.

The bus tour was organized by an Ohio association of registrars at the meeting. Though it had recreational and entertainment aspects, the record supports the conclusion that its participants engaged in discussions and exchanges concerning their common field of work. Marbury's immediate supervisor encouraged her to go on the tour. The supervisor's act gave the employer's sanction to Marbury's participation in the tour and it superseded any earlier statements by other employer representatives that bus tours were not a part of her business trip.

I would not follow the analysis of the majority focusing on specific activities of tour participants. Distinctions between typical bus tour activities, such as views of historic sites, rest stops, tourist souvenir shopping, and the like, create distinctions overly fine and not material to a determination of whether they were in the course of or arising out of employment. Marbury's desire to purchase a shirt for her daughter does have a personal purpose. However, any other stop or embarkation from the bus would be much the same.

The question of coverage is more properly resolved by the analysis employed in the line of cases concerning "recreational activities" of employees undertaken at the request or direction of an employer. See, e.g., Ott v. Indus. Comm. (1948), 83 Ohio App. 13, 38 Ohio Op. 127, 82 N.E.2d 137; Miller v. Young (C.P. 1961), 93 Ohio Law. Abs. 68, 25 O.O.2d 268, 193 N.E.2d 558; Beck v.Young (1962), 119 Ohio App. 109, 26 O.O.2d 264, 197 N.E.2d 215; and Columbia Gas of Ohio, Inc. v. Sommer (1974), 44 Ohio App. 2d 69, 73 O.O.2d 60, 335 N.E.2d 743.

In Ott, an industrial employee who suffered a heart attack while playing in an employer-sponsored ball game was found to be covered for his injury and resulting death. The court, in finding that the injury was in the course of and arising from his employment, observed:

"* * * It seems also apparent that both employee and employer received considerations from this activity which was the direct outgrowth of a recreational program which was not only authorized by the corporation, but definitely sponsored by it, and the means of its accomplishment furnished at the expense of the corporation." Ott, supra, 83 Ohio App. at 20, 38 O.O. at 130, 82 N.E.2d at 140.

In the more recent case of Columbia Gas v. Sommer, supra, coverage was found for an employee injured in an after-hours baseball game for employees sponsored by the employer. The court observed that such activities produce improved employee relationships which work to the benefit of employers. The court found that the "business related benefit" alone, though intangible and not immediately measurable, was sufficient to impose upon the company an employment risk incident to the activity, and that the injury therefore arose out of and in the course of employment.

The bus tour was a recreational activity incident to the purpose of Marbury's business trip to Baltimore. It was undertaken at her employer's direction or encouragement. The employer may be expected to realize a benefit from the tour; it exposed Marbury to other persons in her line of work from whom she should be expected to gain knowledge to improve her job skills. It also relieved the tedium of a business meeting and made the whole trip more attractive to and productive for Marbury. Both Marbury and her employer "received considerations from this activity." Ott, supra.

The test for coverage of an injury received in a recreational activity organized or promoted by the employer is whether there was a business-related benefit to the employer. Personal benefits to the employee are a natural part of those activities and should not defeat coverage.

The bus tour was in the course of Marbury's employment because she participated at her employer's direction. It arose out of her employment because there was a causal connection between the employment and the tour. The excursion to the souvenir shop was a regular part of the tour and cannot be separated from other activities on the tour because it had a personal purpose or benefit, as recreational activities will.

I would find coverage.