The Court of Special Appeals Expands the Positional-Risk Test for Traveling Employee

In Gravette v. Visual Aids Electronics, et al., 2014 Md. App LEXIS 35, 90 A.3d 483 (2014), the Court of Special Appeals of Maryland expanded the liability for employers with traveling employees. 

In Gravette, an employee was assigned to set up audio visual aids at the Gaylord National Resort and Convention Center between July 7 and July 16, 2011.  During that time, he was a guest at the hotel.  On July 10, he was injured after work hours while dancing at a night club in the hotel.  The Maryland Workers’ Compensation Commission found that the injury did not arise out of the terms and conditions of his employment, and that it did not occur in the course of his employment; therefore Mr. Gravette was not entitled to workers’ compensation benefits.  The case was appealed and the Circuit Court for Prince George’s County agreed with the Commission.  Gravette then appealed to the Maryland Court of Special Appeals, which reversed the lower court’s decision.

The seminal case on this issue was Mulready v. University Research, 360 Md. 51, 756 A.2d 575 (2000).  In the Mulready case, a traveling employee who slipped and fell while taking a shower in his hotel room was found to have a compensable case.  The court announced the positional risk rule should be applied to traveling employees:

           

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.

Id. at 66. 

In the present case, the Court held that that engaging in recreational activities such as dancing constitutes an activity, analogous to eating or showering, reasonably incidental to the travel required by his employer. 

The intermediate appellate court went on to say that Gravette’s use of an on-site nightclub is at least as foreseeable as cases found compensable in other jurisdictions, such as an injury that occurred while using a motel’s pool, or playing basketball at a YMCA a few miles away from the hotel.  The court distinguished these cases from another case where a flight attendant, while on a 24 hour layover, was injured when she traveled 58 miles to go downhill skiing.   The court in that case ruled that was not a reasonably foreseeable activity based on the distance traveled and the general dangerous nature of downhill skiing. 

Ultimately, the court in the Gravette case found the activity to be reasonable in that it was not dangerous or out of the ordinary, and found that it was foreseeable because the nightclub was on the premises and the employee could reasonably be expected to utilize a facility on the premises of the hotel where he was required to stay.  Though not specifically laid out in the wording of the Court's opinion, there is also a strong implication in the decision that Maryland wishes to distinguish itself from 20th century Elmore City, Oklahoma.

This ruling is important because it expands the general liability of employers for their employee’s injuries while they are traveling for work and may lead to stricter regulation of employees’ free-time activities during the course of their business trips.  In an age where employees are seeking, more than ever, to maintain a positive quality of life through balance between work and non-work activities, we can definitely expect to see more cases like this arise in the future.  If you are analyzing whether your company is protected with under its current policies feel free to contact us for a consultation.  

Mobile Ride-Sharing Applications: Technology Changing Faster Than Law

Across the globe, in over 39 countries, people are trying a new form of locating transportation through mobile phone applications, commonly known as ride-sharing.  Companies such as Lyft and Uber, among others, have created an experience where a user can download an app to his or her mobile device to find area drivers who are willing to, for a fee, offer the user transportation to his or her desired location.

Several features differentiate this system from traditional taxicab services as we know them.  First, and arguably what makes these companies so popular over taxicabs, users can find transportation almost instantaneously in cities where companies like Lyft and Uber operate via the GPS function of a smart phone.  Gone are the days of calling a taxi and waiting an hour for an available driver to arrive.  Second, drivers use their own cars to offer transportation to users.  Companies like Uber and Lyft serve to bring the driver and ride-seeker together (and retain a fee for doing so), but they do not own or operate a physical fleet.  Third, the rate for such services can fluctuate based upon demand with users receiving a price quote for their entire trip prior to agreeing to accept a ride from the driver.  Further,contrasting these services from taxicab companies and each other, Lyft drivers are solely private individuals offering rides to other individuals, while Uber offers several types of services, including ride-shares offered by private individuals (through UberX) and rides offered from commercially licensed, professional chauffeurs (through UberBlack).   

While ride-sharing apps have been a huge success in many locations, such a system has not been without its share of critics.  Most notably, traditional taxi companies have challenged ride-sharing, arguing that the competitive playing field should be leveled with Lyft, Uber and similar companies forced to abide by the same stringent regulations imposed upon the taxicab industry.  Thus far, both ride-sharing app companies have skirted those regulations in many places because, as designed, they are technology companies matching riders with drivers rather than taxi companies who own, operate and manage fleets.  Interestingly, taxicab companies have not been seeking to end the use of ride-sharing technology but only to have those companies play by the same rules, suggesting that taxicab companies recognize the importance and usefulness of such an app and may be suffering from a case of sour grapes after not being able to capitalize on the same market opportunity themselves.  

In Maryland, a battle between taxis and Uber is blazing.  In April of this year, the Chief Public Utility Law Judge declared that ride-sharing application developer Uber is a common-carrier and thus subject to the same rules and regulations of a standard taxi company, including fixed prices rather than demand-based pricing, under the Maryland Public Utilities Article.  To reach the decision that Uber falls under these laws, the Judge essentially ruled that Uber “owns” the vehicles that are being used to offer rides: a conclusion that seems to contravene logic to some extent since Uber has no physical control or property interest in the vehicles.  Rather, they are basically a dispatch company.  While this specific Maryland challenge deals directly with Uber’s option that pairs ride-seekers with professional drivers for-hire rather than individual private drivers, the implication, legally, will probably be the same for both types of companies in Maryland. At this point, Uber’s appeal of the ruling is pending. 

With such complaints and lawsuits popping up around the world, different locales are dealing with the problem in different ways.  Recently Transport for London, the regulatory agency for that city's transportation industry, ruled that Uber's app is not the same as a taxi meter, thus allowing Uber to operate outside the rules and regulations that London's cabs must follow.  Here in the United States, some jurisdictions have decided to take matters into their own hands rather than waiting for regulatory and legal challenges, seeking to change the laws to accommodate the new technologies.  In June of this year, Colorado was the first state to pass legislation addressing specifically ride-sharing technologies in order to end the type of clash ensuing in Maryland.   The law in that state now allows ride-sharing apps but requires background checks for drivers, proof of insurance and vehicle inspections to assess safety. 

Though Colorado was the first to pass such laws, Maryland also had similar proposed legislation on the table before the Maryland General Assembly in the 2014 term.  Had the proposal been enacted into law, it would have codified safety standards, required driver background checks and rate reporting as well as set minimum insurance protocols such as requiring commercial liability insurance with minimum $1 million coverage for drivers offering ride-shares through the apps.  Unfortunately, the leading-edge proposal failed to pass. 

Until ride-sharing apps can garner enough support for legislative updates to meet changing technologies, Uber and Lyft are trying to continue to earn good will by stomping out detractors on other fronts.  While it is not a concern avidly raised by the traditional taxicab industry, one often cited worry about the continued growth of ride-sharing apps is rooted in public policy.  Many critics of Uber and Lyft question who will cover bodily injury claims in car accidents when drivers are acting as chauffeurs.  What about when drivers are en route to pick up clients?  Traditional taxicabs offer commercial insurance but Uber and Lyft, detractors argue, face insurance gaps.   

Not to be discouraged, both companies have followed up on such concerns with solutions.  Uber, specifically, made an announcement in May of this year, sharing information regarding their new insurance policies that govern the “gap” created between individual and professional coverage when a driver is actively on the Uber network but not transporting a passenger.  Uber CEO Travis Kalanick, in discussing the new policies in a conference call reported by Forbes Magazine said of the insurance, “it gives legislators and regulators the confidence in knowing the public interest is being protected while a lot of the rules are being figured out, and allows them to be thoughtful while they work through their legislative options…We are doing everything we possibly can to show how Uber in a city makes that city better.”

With Uber quickly winning favor with the general population and growing new types of and new markets for auto insurance coverage, it appears that, even with the latest hurdle in Maryland, ride-sharing technologies offering virtually on-demand services with free-market flexibility have lasting “curb” appeal.


Contributed by Lauren Seldomridge