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Hickey v. Union Pacific Railroad Co.

Citations: 803 P.2d 275; 104 Or. App. 724; 1990 Ore. App. LEXIS 1739Docket: CV87-908; CA A51046

Court: Court of Appeals of Oregon; December 19, 1990; Oregon; State Appellate Court

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Sandra L. Hickey, as personal representative of her deceased husband Danny Michael Hickey's estate, filed a lawsuit seeking damages for his death against multiple defendants, including the City of Hermiston, Umatilla County, the Public Utility Commissioner of Oregon, Union Pacific Railroad, and James Delp. The trial court dismissed claims against the City, County, and PUC due to their immunity under ORS 30.265(3)(a), stating that the death was compensable under Workers' Compensation Law. Hickey's claims against Union Pacific Railroad went to jury trial, resulting in a verdict for the Railroad. Hickey appealed both the dismissal of claims against the public entities and the judgment in favor of the Railroad, alleging an error in admitting PUC surveys and data into evidence. 

The court affirmed the trial court's decision, concluding that Hickey's death was indeed compensable under the Workers' Compensation Law, as it arose out of and in the course of his employment, thus providing immunity to the public entities. The ruling emphasized that injuries occurring while commuting to or from work are generally not compensable, but in this case, the specific circumstances surrounding the decedent's work schedule and decisions led to the conclusion that his death was work-related.

An exception to the "going and coming" rule applies when an employee is injured or killed during a "special errand" for their employer. This principle, detailed in *Philpott v. State Ind. Acc. Com.*, allows for off-premises journeys to be considered within the course of employment if they entail substantial inconvenience, hazard, or urgency. In *Davis v. SAIF*, it was established that generally, working late does not make a commute eligible for Workers' Compensation unless the change significantly increases the risk of injury. In this case, the claimant, who worked overtime but faced no unusual commuting risks, was not covered.

Conversely, the case involving the decedent illustrates the special errand exception. The decedent made an extra late-night trip to work to load a truck, which was not part of his usual schedule. The trial court noted that this late-night journey presented greater hazards than his typical commute. Despite arguments that the decedent's tasks were routine, the court emphasized that the deviation from his normal work hours and the unusual circumstances of the trip qualified it as a special errand. The decedent had to return late due to personal commitments, and this necessity, even if not aligned with the employer's convenience, did not exclude his activities from the special errand exception. Thus, the late-night trip was deemed sufficiently different from his customary work to warrant coverage under Workers' Compensation.

A claimant's activity can qualify as a special errand under Workers' Compensation Law when it primarily benefits the employer, even if it also benefits the claimant. In this case, the decedent's decision to return to work after a church meeting constituted a special errand, as it was necessary for completing urgent work required by the employer. This situation was distinguished from past cases where employees voluntarily returned to work without the same degree of urgency or lack of advance notice. The added risk, deviation from normal hours, and the primary benefit to the employer support the claim that the decedent's trip and subsequent injury were compensable.

Additionally, the trial court allowed testimony from a witness regarding accident likelihood at a railroad crossing using a diagnostic tool known as "the Jaqua Formula." The plaintiff contended that 23 U.S.C. 409 prohibited this evidence, which concerns data compiled for safety evaluations. However, it was found that the data used by the witness was not compiled for the prohibited purposes and was based on routine inspections. Thus, the trial court's decision to admit the testimony was upheld. The overall judgment was affirmed.