Christensen v. Swenson , 238 Utah Adv. Rep. 8 ( 1994 )

HOWE, Justice,

concurring:

I concur. I write to address the concerns of the court of appeals when, in affirming the summary judgment in favor of Burns, it wrote:

Holding otherwise would unduly expand the scope of employment. Every off-site location regularly patronized by an employee for personal purposes could potentially be considered within the ordinary spatial boundaries of the employment. Such a holding would also blur the rule that conduct occurring during an employee’s off-premises lunch hour is outside the scope of employment. See, e.g., 1 Arthur Larson, The Law of Workmen’s Compensation § 15.51 (1992).

Christensen v. Burns Int’l Sec. Servs., 844 P.2d 992, 995 (Utah Ct.App.1992).

Larson in his treatise recognizes exceptions to the general rule relied on by the court of appeals. One such exception is where the employee is paid during the time taken out for lunch or coffee and to suit the employer’s convenience, the employee rushes out to “get a quick bite to eat, and [hurries] back because of the pressure of work.... Here the very making of a lightning excursion for lunch is an effort expended in the employer’s interest to conserve his time.” 1 Arthur Larson, The Law of Workmen’s Compensation, § 15.52 (1993). Larson cites many cases where the exception was relied on. Only one need be mentioned. In Shoemaker v. Snow Crop Marketers Division of Clinton Foods, Inc., 74 Idaho 151, 258 P.2d 760 (1958), an employee was awarded compensation when he was injured while retrieving his packed lunch from a building adjoining his employer’s premises. He was on paid time and under orders of his employer to hurry back.

Although the case presently before the court is not a workers’ compensation case, I believe that this well-recognized exception may be applicable here, as the majority opinion correctly opines.

GREENWOOD, Court of Appeals Judge, sat to fill the vacancy on the court.