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March 18th, 2015
workers compensation
EMPLOYEE’S PARTICIPATION IN A RECREATIONAL ACTIVITY THE EMPLOYER DID NOT DERIVE ANY BENEFIT FROM FOUND TO NOT BE WITHIN THE SCOPE OF HER EMPLOYMENT

On February 27, 2015, the Alabama Court of Civil Appeals entered a decision in the case of Pollock v. Girl Scouts of Southern Alabama, Inc., 24 ALW 10-6 (2130538), 2/27/15. The issue in Pollock was whether an employee’s participation in a horseback riding event organized and planned by a co-employee was within the scope of the employee’s employment. See id.

The court began its analysis by stating the long standing rule that “in order for an injured employee to be entitled to receive compensation under the Alabama Workers' Compensation Act, § 25–5–1 et seq., Ala. Code 1975 ("the Act"), the injury must arise out of and in the course of employment with the employer. See § 25-5-1(8), Ala. Code 1975.” The employee, Dana Pollock, was employed by the Girl Scouts of Southern Alabama, Inc. (“GSSA”) “as the business manager of the camp and as the assistant to Phelps, the director of the camp.” Id. “The GSSA holds a six-week program for Girl Scouts at the camp each summer.” Id. Pollock began working for GSSA each summer in 2002. Although her employment would end at the end of each summer, she was rehired each subsequent summer. The injury in question happened after the conclusion of the summer camp in 2011. The “camp's horse director, McGough, [also] a GSSA employee, managed horseback riding activities for campers and maintained the horses. She had no supervisory or managerial oversight of Pollock [and] Pollock's responsibilities at the camp did not involve horseback-riding activities.” Id.

McGough would organize a horseback ride for camp staff for the purpose of evaluating the horses at the start of every summer, and the employees could participate on a voluntary basis. Pollock did not participate in this ride. She did however agree to go on a second ride, also organized by McGough, at the end of the summer. During that second ride, “the horse on which Pollock was riding bolted unexpectedly” and she “was thrown into the air and then collided with the horse.” Pollock was ultimately diagnosed with a T11 compression fracture and other spinal injuries.

GSSA filed for summary judgment, which the trial court granted. Pollock appealed the judgment and the Court of Civil Appeals affirmed the trial court’s decision. The Court of Civil appeals noted that the trial court determined that Pollock’s injury did not arise out of her employment and that such a determination “is basically a question of whether there is a causal relationship between the claimant’s performance of his or her duties as an employee and the complained-of injury.” 24 ALW 10-6 (2130538) (citing Ex parte Trinity Indus., Inc., 680 So.2d 262, 266 (Ala. 1996)). The court explained that the traditional factors to consider when making such a determination include: (a) the customary nature of the activity; (b) the employer’s encouragement or subsidization of the activity; (c) the extent to which the employer managed or directed the activity; (d) the presence of substantial pressure or actual compulsion upon the employee to attend and participate; and (e) the fact that the employer expects or receives a benefit from the employees’ participation in the activity. 24 ALW 10-6 (2130538) (citing Kennedy v. Cochran, 475 So. 2d 872, 874-75 (Ala. Civ. App. 1985)).

In the instant case, the court held that “although Pollock suffered her injury while on GSSA's premises and while she was apparently being paid by GSSA, GSSA submitted substantial evidence in support of its motion for a summary judgment establishing that the horseback ride was a voluntary recreational activity that was unrelated and not incidental to Pollock's duties as business manager and assistant to the director of the camp.” Id. In support of this position, GSSA established that unlike the first ride, where the purpose was to evaluate the horses prior to the campers arriving, GSSA did not derive any benefit from that second ride, nor was it customary for Pollock to be riding the horse during her normal work activities. GSSA also presented testimony that it neither encouraged nor subsidized the second ride. Based upon these factors, the Court of Civil appeals affirmed the trial courts finding that the injury did not arise out of or in the course of Pollock’s employment and GSSA was not liable for her injury. 24 ALW 10-6 (2130538)


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