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Owner Of Restaurant Who Left Home Earlier Than Usual For Meeting Was Not Covered In Accident On Way To Work

Since the legislative change in 1979 to substitute a premises rule for the going-and-coming rule, there have been many attempts to expand the “special mission” exception. The general rule is that only injuries on employer-owned or maintained premises are covered. One big exception involves injuries that emanate from the performance of special missions. That latest attempt to prove a special mission comes from Delle Donne v. Shiki Japanese Steakhouse of Middletown, A-1919-10T1 (App. Div. 2011).

Frank Delle Donne was the sole stockholder in a corporation that owned a restaurant in Middletown, New Jersey. On August 7, 2008 he planned to meet a real estate professional at the restaurant at 10:00 a.m. to discuss selling the restaurant. He scheduled the meeting two hours before employees would arrive and before he normally came to work so that employees would not become aware of the potential business sale.

Petitioner left his home in Bridgewater Township around 8:00 a.m. He took his usual route to work, which included travel on Route 287. His vehicle was involved in an accident on the way to work.

Petitioner’s expert argued that the risk was sharply higher for an accident on major highways like Route 287 during rush hours rather than after rush hour. Petitioner, therefore, argued that his commute to work was in the nature of a special mission because he left his home much earlier than usual and because of increased highway hazards.

Respondent’s expert argued that there was no proof the accident was caused by extra traffic volume. Petitioner lost control of his vehicle in the accident.

The Judge of Compensation, The Honorable William Lake, held that the injury was not compensable because the drive was part of the normal commute to work. The judge held that this commute was not a special mission by virtue of petitioner’s early start from home. The Appellate Division agreed that this matter should be dismissed. It reviewed other special mission cases and noted that several of those cases involved having to drive after work to a new and distant work site or having to perform work away from the normal worksite. In this case the court said:

In contrast, petitioner here was not required to be away from the restaurant, which was his usual worksite. Nor was his commute to work, albeit earlier than usual, the ‘direct performance of duties assigned or directed by the employer.’ In short, he may not avail himself of any viable exception to the ‘going and coming rule.’

While one can certainly give creativity points to the petitioner’s attorney in this case, it is abundantly clear that the dismissal of this case was the right ruling.

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