Morris James, LLP v. Weller ( 2017 )

IN THE SUPERIOR COURT OF THE STATE OF DELAWARE
MORRIS JAMES LLP, )
)
Employer-Appellant, ) C.A. No. N16A-05-006 FWW
)
v. )
)
WILLIAM WELLER, )
)
)
Claimant-Appellee.
Subrnitted: January 6, 2017
Decided: March 16, 2017
MEMORANDUM OPINION
On Appeal from the Industrial Accident Board:
REVERSED and REMANDED.
Scott R. Mondell, Esquire, Elissa A. Greenberg, Esquire, Elzufon Austin Tarlov &
Mondell, PA, 300 Delaware Avenue, Suite 1700, Wilmington, Delaware 19801;
Attorneys for Appellant Morris J ames LLP.
Gary S. Nitsche, Esquire, William R. Stewart, Esquire, Weik, Nitsche &
Dougherty, 305 North Union Street, Second Floor, P.O. Box 2324, Wilmington,
Delaware 19899; Attorneys for Appellee William Weller.
WHARTON, J.
I. INTRODUCTION
Morris J ames LLP (“Appellant”) filed a Notice of Appeal on May 12, 2016,
requesting a review of the April 18, 2016 decision by the Industrial Accident
Board (“Board”). Appellant contends that the Board erred When it found that
William Weller’s (“Weller”) injury, Which Was sustained While playing on an
employee softball team, occurred Within the course and scope of his employment.
In considering this appeal, the Court must determine Whether the Board’s
decision is supported by substantial evidence and is free from legal error. Upon
consideration of the pleadings before the Court and the record beloW, the Court
finds that the Board legally erred by applying the incorrect standard for
determining Whether a recreational event, which is not company sponsored, is
Within the course and scope of one’s employment. Accordingly, the Board’s
decision is REVERSED and REMANDED.
II. FACTUAL AND PROCEDURAL CONTEXT
Appellant is a law firm based in Wilmington, Delaware. In the 19708, a
group of Appellant’s employees and young associates decided to form a softball
team.1 Appellant supports its employees’ softball team by paying for their jerseys,
1 Weller v. Morris James, LLP, No. 1429339, at 51:11-16 (Del. I.A.B. Dec. 16, 2015)
(TRANSCRIPT).
their bats, and their meals after each game.2 Appellant also supports the team by
signing liability agreements so that the players can practice on softball fields in the
area.3 With Appellant’s support, the team continues to compete against other local
practitioners in the Wilmington Lawyers’ Softball League each season.4
In October of 2002, Weller began working as a bankruptcy paralegal for
Appellant.5 Shortly after Weller began working there, a partner asked Weller to
manage the softball team.6 Weller agreed to do so.7 As manager of the softball
team, Weller worked on softball-related activities while he was at work.8
However, Weller’s contribution to the softball team never factored into his annual
performance evaluations.9 Weller continued in this role until Sherry Perna
(“Perna”), who is the controller of Appellant, assumed the managerial duties of the
team in 2013.10
2 Id. at 18:7-21; 22_23. Appellant pays all of the expenses associated with the softball team each
year, which totals approximately $5,000. Id. at 89:10-13.
3 Id. at 21-22. If the team wants to practice, the owner of the softball field requires someone to
sign an agreement shielding the owner from liability in the event of an injury. Ia'. Without
Appellant signing such an agreement, players admit that they would be unable to practice. Ia'. at
71 : 16-25. It is worth noting, though, that the commissioner of the Wilmington Lawyers’ Softball
League signs the liability agreements of behalf of the teams for games. Id. at 82:22-25.
41d. at 41:24-25; 42;1.
5 1d.ar15;9-14.
61d. at16;1-5.
7 ld.
8 Id. at 16.
9 Id. at 77:15-23.
‘° Id. at 16;8-9.
On June 10, 2015, Perna asked Weller to get the cooler and buy beverages
for the game that evening.ll Weller therefore decided to leave work approximately
thirty minutes early, as he has done numerous times before.12 Appellant permits
Weller to leave work early for softball games and other personal reasons so long as
he asks for permission.13
During the game that evening, Weller was running around the bases when
his Achilles tendon ruptured.14 After the injury occurred, Perna suggested to
Weller that he try running his claim through Appellant’s workers’ compensation
carrier.15 Perna testified, however, that she offered this suggestion only as
Weller’s friend.16 Moreover, Perna testified that she based this suggestion on the
fact that Appellant’s old workers’ compensation carrier covered another
employee’s claim involving softball-related injuries.17
Appellant’s new carrier denied Weller’s claim.18 After reviewing the
circumstances surrounding Weller’s injury, it determined that Weller’s injury did
not occur within the course and scope of his employment for Appellant.19
Nonetheless, Weller’s medical bills from his surgery to repair his Achilles tendon
111d. at19:14-25.
12 ld_ at 20:3-8.
13 Id. at 35;15-20.
141d. at 28:14-15.
15 Id. at 94:24-25; 95;1-4.
16 Id. at 96;7-10.
11 Id. at 95;2-4.
18 Id. at 30;13-23.
191d. at41:1-23; 42:1-6.
were covered under Appellant’s insurance policy.20 Weller was out of work from
June 11, 2015 to September 8, 2015 recovering from this surgery.21
Weller petitioned the Board to determine whether he was entitled to
compensation from Appellant’s workers’ compensation carrier, and the Board held
a hearing regarding this matter on December 16, 2015 . The sole issue presented to
the Board at this hearing was whether Weller’s injury occurred within the course
and scope of his employment for Appellant. All of the aforementioned facts were
established at the hearing.22
For purposes relevant to this appeal, several employees of Appellant also
gave testimony about the potential benefits Appellant receives from its employees
playing on the softball team. In particular, when asked whether Appellant obtained
an “economic benefit” from its employees playing on the softball team, Weller
testified that playing softball is “a great team building exercise for the firrn”
3 Weller also
because employees learn to communicate better with one another.2
testified that he believes employee participation on the softball team enhances
morale and camaraderie within the firrn.24
201d. at 47:13-15.
211d. at121116-17.
22 The Board made these factual findings in its determination as well. See Weller v. Morris
James, LLP, No. 1429339, at 2_10 (Del. I.A.B. Apr. 18, 2016).
23 Weller v. Mom's James, LLP, No. 1429339, at 33;11-15 (Del. I.A.B. Dec. 16, 2015)
(TRANSCRIPT).
24 Id. at 50;4-18.
Additionally, Thomas Herweg (“Herweg”), who is the executive director of
Appellant, testified that he enjoys playing softball because he “think[s] it helps for
morale and camaraderie.”25 Herweg believes that enhancing employees’ morale by
playing softball inevitably enhances their productivity at work.26 Herweg also
testified that Appellant does not use the softball team as a mechanism for soliciting
business, nor does Appellant “derive any direct business benefit by putting
[Appellent’s] name on the uniforms.”27
Finally, Perna agreed that playing on the softball team is “morale boosting”
because employees are able to “make relationships out of it.”28 However, when
asked if playing on the softball team enhances productivity at work, Perna testified
that she does not “know about productivity, but our relationships are better.”29
On April 18, 2016, the Board determined that Weller’s injury occurred
within the course and scope of his employment for Appellant.30 In reaching this
conclusion, the Board relied on the four-factor standard from Larson ’s Workers’
Compensation Law (“Larson’s”),31 which has been adopted by Delaware courts.
The Board weighed these four factors and determined that Appellant “probably
”Mmm&m
26 Id. at 78;1-9.
22 Id. at 72_73.
23 Id. at 89:22-24.
231d. at110;5-12.
311 see Weller v. Morris James, LLP, No. 1429339, at 13 (Dei. l.A.B. Apr. 18, 2016).
31 Id. at 11-13; 2 Arthur Larson and Lex K. Larson, Larson’s Workers’ Compensation Law, §
22.04[4][b]-[e] (LEXIS Publishing 2001).
obtains a benefit through increased productivity of the players by having the firm
team in the softball league.”32 Moreover, the Board determined that Appellant’s
“willingness to accept liability for on field incidents” by signing hold harmless
agreements evidences a “modicum of initiative or control” sufficient to bring the
softball games within the course and scope of Weller’s employment.33 Finally, the
Board noted that, while the games took place off of work premises and after work
hours, Weller “was allowed to leave work early to purchase beverages for the
game when he was the manager of the team.”34
III. THE PARTIES’ CONTENTIONS
On appeal, Appellant argues that the Board’s decision should be reversed for
three reasons. First, Appellant argues that the Board erred by holding that a
presumed increase in employee productivity from recreational activities provides a
direct business benefit to Appellant.35 Appellant contends that the Board arrived at
this erroneous conclusion by applying the incorrect legal standard.36 According to
Appellant, the correct standard to be used under these circumstances explicitly
disregards intangible benefits that are obtained from an employee’s recreational
activities, such as a boost in employee morale and efficiency.37 Given that the
32 Weller v. Mom's James, LLP, NO. 1429339, at 13 (Der. I.A.B. Apr. 18, 2016).
33 Id. at 12-13.
34 Id. at 12.
33 Appellant’s opening Br., D.r. 10, at 21-24.
36 1a at 13_14.
32 Id. at 22-23.
Board applied the incorrect legal standard and improperly considered intangible
benefits in its analysis, Appellant contends that the Board’s decision should be
reversed.38
Second, Appellant argues that the Board erred by finding that Appellant
exercised a sufficient degree of control over the softball games to bring them
within the course and scope of employment.39 In its decision, the Board found that
Appellant’s willingness to sign hold harmless liability agreements on behalf of its
employees “evidences a modicum of initiative or control at least with respect to
40 Appellant contends that a “modicum” of control, coupled with
team practices.”
the erroneous standard applied by the Board, is insufficient to bring the softball
games within the course and scope of employment41
Third, the Board’s analysis noted that Appellant was permitted to leave work
early before games, but it is unclear whether the Board used this finding in its
overall determination.42 Assuming arguendo that the Board did consider it,
Appellant argues that the Board erred in doing so because Appellant afforded
Weller the exact same courtesy regardless of his after-hours obligations.43
Furthermore, Appellant contends that, as a practical matter, an employer’s
33 Id.
39 Id. 17_18.
40 Weller v. Morris James, LLP, No. 1429339, at 12-13 (Del. I.A.B. Apr. 18, 2016).
41 D.r. 10,at18_21.
42 ld. at 25.
43 1a at 27.
willingness to grant requests for early leave should not bring employees’ after-hour
plans within the ambit of employment.44 Appellant asserts that doing so would
create a dangerous precedent because any after-hours activity might be brought
within the scope of employment as long as the employee first secured permission
to leave work.45
ln response, Weller concedes that the Board used the wrong standard in
determining whether playing softball was within the course and scope of his
employment for Appellant.46 However, Weller contends that this error is
harmless.47 Specifically, Weller argues that the Board’s use of the wrong standard
is harmless because both standards have an identical factor, which is whether the
recreational event provided a direct and tangible benefit to the employer.48
According to Weller, the Board had substantial evidence to find that an increase in
employee productivity from playing softball provides a direct and tangible benefit
to Appellant.49 In addition, Weller asserts that the Board’s other findings are
supported by substantial evidence and are free from legal error.50 Therefore,
Weller argues that the Board’s decision should be affirmed.
44 ld.
43 ld.
46 Appellee’s Answering Br., D.I. 12, at 26-28.
47 Id.
43 ld.
43 Id.
36 ld. at 14-25.
IV. STANDARD OF REVIEW
The Board’s decision must be affirmed so long as it is supported by
substantial evidence and is free from legal error.51 Substantial evidence is that
which a reasonable mind might accept as adequate to support a conclusion.52
While a preponderance of evidence is not necessary, substantial evidence means
- - 54
”53 Questlons of law are reviewed de novo, but
“more than a mere scintilla.
because the Court does not weigh evidence, determine questions of credibility, or
make its own factual findings,55 it must uphold the decision of the Board unless the
Court finds that the Board’s decision “exceeds the bounds of reason given the
circumstances.”56
V. DISCUSSION
In Delaware, an employee is entitled to receive benefits pursuant to the
workers’ compensation statute for injuries or death “arising out of and in the
course of employment,”57 but only:
51 Conagra/Pilgrim ’s Pride, Inc. v. Green, 2008 WL 2429113, at *2 (Del. June 17, 2008).
52 Kelley v. Pera'ue Farms, 123 A.3d 150, 153 (Del. Super. 2015) (citing Person-Gaines v. Pepco
Holdings, Inc., 981 A.2d 1159, 1161 (Del. 2009)).
53 Breeding v. Contractors-One-Inc., 549 A§2d 1102, 1104 (Del. 1988).
54 Kelley, 123 A.3d at 152-53 (citing Vincent v. E. Shore Markets, 970 A.2d 160, 163 (Del.
2009)).
55 Bullock v. K-Mart Corp., 1995 WL 339025, at *2 (Del. Super. May 5, 1995) (citing Johnson v.
Chrjysler Corp., 213 A.2d 64, 66-67 (Del. 1965)).
56 Bromwell v. Chrysler LLC, 2010 WL 4513086, at *3 (Del. Super. Oct. 28, 2010) (quoting
Bolden v. Kraft Foods, 2005 WL 3526324, at *3 (Del. Dec. 21, 2005)).
57 19 Del. C. § 2304 (“Except as expressly excluded in this chapter and except as to uninsured
motorist benefits, underinsured motorist benefits, and personal injury protection benefits, every
employer and employee, adult and minor, shall be bound by this chapter respectively to pay and
10
while the employee is engaged in, on or about the premises
where the employee’s services are being performed, which are
occupied by, or under the control of, the employer (the
employee’s presence being required by the nature of the
employee’s employment), or while the employee is engaged
elsewhere in or about the employer’s business where the
employee’s services require the employee’s presence as a part
of such service at the time of the injury . . . .58
Delaware courts have found that “arising out of” and “in the course of’ are two
distinct elements that must be separately established,59 and determining whether
60 Whereas the phrase
these elements are met entails a “highly factual” analysis.
“arising out of” refers to the origin of the accident and its cause,61 the phrase “in
the course of” refers to the time, place, and circumstances of the injury.62
to accept compensation for personal injury or death by accident arising out of and in the course
of employment, regardless of the question of negligence and to the exclusion of all other rights
and remedies.”). See also Histea' v. E.I. Du Pont de Nemours & Co., 621 A.2d 340, 342 (Del.
1993) (“Under the Act every employee is bound to accept compensation for personal injury
caused by accident arising out of and in the course of employment, regardless of the question of
negligence and to the exclusion of all other rights and remedies.”).
3319De1. C. §2301(19)(3).
59 See, e.g., Storm v. Karl-Mil, Inc., 460 A.2d 519, 521 (Del. 1983) (citing Chila'ren ’s Bureau of
Delaware v. Nissen, 29 A.2d 603, 607 (Del. Super. 1942)); Stevens v. State, 802 A.2d 939, 945
(Del. Super. 2002) (citing Dravo Corp. v. Strosnider, 45 A.2d 542, 543 (Del. Super. 1945)); Rose
v. Caa'illac Fairview Shopping Ctr. Props. (Delaware) Inc., 668 A.2d 782, 786 (Del. Super.
1995) (citing Dravo Corp., 45 A.2d at 543)).
66 His¢ed, 621 A.2d 31345.
61 See Spellman v. Christiana Care Health Servs., 74 A.3d 619, 623 (Del. 2013) (citing Tickles v.
PNC Bank, 703 A.2d 633, 637 (Del. 1997)). See also Delhaize America, lnc. v. Barkas, 2007
WL 2429375, at *3 (Del. Super. Aug. 22, 2007) (“Most authorities hold that an injury arises out
of an employee’s employment if it ‘arises out of the nature, conditions, obligations or incidents
of the employment, or has a reasonable relation to it.’ This does not mean that the injury has to
arise out of the employee’s main work, lt is sufficient if the injury arises from a ‘situation which
is an incident or has a reasonable relation to the employment, and that there be some causal
connection between the injury and the employment.’ However, there does not have to be an
‘essential causal relationship’ between the employment and the injury. Therefore, an employee
does not have to be injured during a job-related activity to be eligible for workers’ compensation
11
At issue on appeal is whether Weller’s injury from a softball game occurred
within the course and scope of his employment for Appellant.63 Courts in this
jurisdiction have already ascertained the standard to be used under the factual
circumstances present here. In Nocks v. Townsena"s Inc.,64 for instance, an
employee injured his knee during a softball game that was sponsored by his
employer.65 To determine whether a company-sponsored recreational event
occurred within the course and scope of one’s employment, the Court adopted the
four-factor standard set forth in Larson ’s.66 This standard requires the Court to
consider (l) the time and place factor; (2) the degree of employer initiative; (3)
financial support and equipment furnished by employer; and (4) employer benefit
from the company team.67 Weighing these factors, the Court found that the
benefits.” (citations omitted)); Hettinger v. Ba'. of Trs. of Delaware Technical and ley. Coll.,
2006 WL 2905156, at *2 (Del. Super. Sept. 27, 2006) (“An essential causal connection between
the injury and the employment is not required. . . .‘[A]n injury arises out of the employment if it
arises out of the nature, conditions, obligations or incidents of the employment, or has a
reasonable relationship to it.”’ (citations omitted)).
62 See Spellman, 74 A.3d at 623 (citing Tickles, 703 A.2d, at 637). See Dravo Corp., 45 A.2d at
543-44 (“lt covers those things that an employee may reasonably do or be expected to do within
a time during which he is employed, and at a place where he may reasonably be during that
time.”).
63 Delaware courts, as well as the Board, have used the terms “scope” and “arising out of”
interchangeably. To prevent any confusion, the Court will use the term “scope” throughout this
decision.
64 see 1999 wL 743658 (Del. super Aug. 25, 1999).
65 Ia'. at *1.
66 see id. at *3; ramon ’s at § 22.04[4][b]-[e].
67 Nocks, 1999 WL 743658, at *3; Larson ’s at § 22.04[4][b]-[e].
12
Board’s decision, holding that the softball game did not occur within the course
and scope of employment, was supported by substantial evidence.68
69
Additionally, in State v. Dalton, a Delaware state trooper was injured
during a charity softball game that was sponsored by the Town of Middletown.76
Because the event was not company sponsored, the Court adopted a different
standard from Larson ’s to address the same legal issue.71 Under this standard, the
Court is required to consider whether:
(l) it occurs on the premises during a lunch or recreation period
as a regular incident of the employment; (2) the employer, by
expressly or impliedly requiring participation, or by making the
activity part of the services of the employee, brings the activity
within the orbit of the employment; or (3) the employer derives
substantial direct benefit from the activity beyond the intangible
value of improvement in employee health and morale that is
common to all kinds of recreation and social life.72
66 Nocks, 1999 WL 743658, at *7. The Board, with which the Court agreed, made the following
findings in reaching its decision: First, the game occurred after work hours and off of the
employer’s premises. Ia'. at *4. Second, the league was organized by the employees of the
employer, and the fact that the employer allowed its employees to conduct league affairs during
work hours was nothing more than passive encouragement of the endeavor. Ia'. Third, merely
providing financial support is not enough in itself to bring a company team within the course and
scope of one’s employment. Ia'. at *5. While the employer purchased all of the equipment,
including jerseys, balls, bases, and trophies, expenditures did not exceed $1,000.00. Ia'. Fourth,
the employer did not derive any financial benefit from the league because it neither collected any
admission nor charged membership dues. ld. at *5. Also, the employer derived no benefit from
the presence of its name on the players’ j erseys because customers did not attend the games. ld.
69 2005 wL 148770 (Del. super. Jan. 20, 2005), aj’d, 878 A.2d 451 (Del. 2005).
76 Ia'. at *1.
71Ia'. at *2; Larson’s at § 22.01.
72 Larson ’s at § 22.01.
13
Ultimately, the Court affirmed the Board’s decision, finding that the charity
softball game occurred within the course and scope of the trooper’s employment,73
The Delaware Supreme Court thereafter affirmed this Court’s decision and held
that it “correctly decided to apply the non-sponsored recreational activity factors
set forth in Larson’s because the softball game was not sponsored by the State
Police.”74 The Delaware Supreme Court also held that “the factors set forth in
Larson ’s treatise for determining the compensability of a non-sponsored
recreational activity are stated in the disjunctive,” and therefore, “only one of the
factors must be satisfied to support a finding that an injury is compensable.”75
In this case, the Board determined that the Wilmington Lawyers’ Softball
League, not Appellant, sponsored the softball games. The Board therefore framed
the issue before it as whether Weller’s injury “while participating in a non-
sponsorea' recreational event was in the course and scope of employment.”76 The
Board then correctly identified Dalton as the applicable precedent to follow, but it
proceeded to outline and apply the factors set forth in Nocks.77 The Board’s
73 Dalton, 2005 WL 148770, at *2. The Court noted that the trooper “easily satisfies two of the
three Larson factors” because “charity work is part of the job of a state trooper.” Ia'. at *2. Also,
superior officers at the Delaware State Police solicited troopers to “volunteer” for charity events
and offered credits for advancement in rank if troopers agreed to do so. Ia'.
24 Dalzon, 878 A.2d a1455.
23 ld. at 456.
26 Weller v. Mom's James, LLP, No. 1429339, at 11 (Del. I.A.B. Apr. 18, 2016) (emphasis
added).
221d. 3111_13.
14
application of the Nocks factors constitutes legal error. Accordingly, the Court
remands this case to the Board for it to apply the Dalton factors.
Weller concedes that the Board applied the incorrect legal standard. Weller
argues, however, that the Board’s failure to apply the correct legal standard is
harmless because both standards contain an identical factor, which is whether the
76 As the Delaware
recreational event provided a direct benefit to the employer.
Supreme Court held in Dalton, a claimant is only required to prove that one of the
three factors exists. Because the Board had substantial evidence to find that an
increase in employee productivity from playing softball provides a direct benefit to
Appellant, Weller argues that the result is the same under an analysis of the Dalton
factors.79
The Court defers ruling on whether both standards contain an “identical
factor” at this juncture. The Board found Herweg’s testimony that “the firm
probably obtains a benefit through increased productivity of the players by having
a firm team in the softball league” sufficient, “along with the Employer imitative
[sic] shown by the willingness to accept liability for on field incidents,” to bring
Weller’s accident within the course and scope of his employment.80 Thus, it is
unclear to the Court whether the Board would have found that its determination
76 Appellee’s Answering Br., D.I. 12, at 26_28.
79
Id.
69 Weller v. Morris James, LLP, N<>. 1429339, at 13 (Del. I.A.B. Apr. 18, 2016).
15
that the firm “probably” benefited by increased productivity of the softball players,
standing alone, would have met Dalton’s substantial benefit test.
It is worth noting, however, that the third factor set forth in Dalton requires
the employer to derive a “substantial direct benefit from the activity beyond the
intangible value of improvement in employee health and morale that is common to
”61 Larson ’s suggests that a “direct benefit”
all kinds of recreation and social life.
to an employer in a social context generally includes “the benefit a business gains
from having its employees entertain clients, the participation of employees in
business-related clubs and organizations or social activities . . . .”62 ln the context
of a recreational event, such as a softball game, a “direct benefit” to an employer
includes business advertising, publicity, and monetary gain.83
Out of necessity, intangible benefits are excluded from consideration under
this factor in order to prevent every recreational event from being brought within
the course and scope of employment, As Larson ’s points out:
Controversy is encountered . . . when the benefit asserted is the
intangible value of increased worker efficiency and morale.
Basically, the trouble with this argument is not that such
benefits do not result, but that they result from every game the
employee plays whether connected with his work or not.84
31Da1¢0n, 2005 wL 148770, at *2; Larson ’s at § 22.01.
62 See Ostrowski v. Wasa Elec. Servs., Inc., 960 P.2d 162, 171 (Haw. Ct. App. 1988); Larson ’s at
§ 22.05[1].
33 see ostrowski, 960 P.2d 162, 171_72; Larson ’s at § 22.05[2].
64 Larson ’s at § 22.05[3]. See also id. (“In this respect, the argument is reminiscent of the same
view sometimes heard in connection with the personal comfort cases: eating, resting, and the like
do indeed improve the efficiency of the employee, but this is equally true [and even more true] of
16
Therefore, a majority of courts have held that intangible benefits alone are not
enough to bring a recreational event within the course and scope of one’s
employment,65 “since otherwise there is no stopping point which can be defined
short of complete coverage of all the employee’s refreshing social and recreational
activities.”66 On remand, the Board shall take these considerations into account
when it applies the Dalton factors.
VI. CONCLUSION
For the foregoing reasons, the Board’s decision is hereby REVERSED and
the matter REMANDED to the Board for it to apply the correct legal standard to
its factual findings.
IT IS SO ORDERED.
”A;'F
Fer?fs W. Whar§on, J.
the sleeping and eating which he does at home. And so, just as in the sleeping and eating cases
some arbitrary time and space limitations must circumscribe the area within which the ‘benefit’
establishes work-connection. . . .”).
65 See, e.g., Copylronics v. Lemon, 588 So. 2d 23, 24_25 (Fla. Dist. Ct. App. 1991); City Councz`l
of Augusta v. Nevz'ls, 255 S.E.2d 140, 141 (Ga. Ct. App. 1979); Moi v. State, Dep’t of Pub.
Safely, 188 P.3d 753, 760-61 (Haw. Ct. App. 2008); Ostrowski, 960 P.2d at 171-72; Gazette
Commc’ns, Inc. v. Powell, 2010 WL 3894609, at *1-’1‘3 (Iowa Ct. App. Oct. 6, 2010); Smart v.
Georgetown ley. Hosp., 170 S.W.3d 370, 372-73 (Ky. 2005); Jacobitz v. Aurora Cooperative,
865 N.W.2d 353, 357-58 (Neb. 2015); Gray v. State, 290 N.W.2d 651, 654-55 (Neb. 1980);
Nevaa'a Indus. Comm ’n v. Holt, 434 P.2d 423, 424-25 (Nev. 1967); Anheuser-Busch Co., Inc. v.
Pelletier, 641 A.2d 1018, 1021 (N.H. 1994); Licht v. Vill. of Hastings-On-Hua’son, 78 A.D.2d
732, 733 (N.Y. App. Div. 1980); Burnett v. INA, 810 S.W.2d 833, 837_38 (Tex. App. 1991). See
also Larson ’s § 22.05[3] (“It can be taken as the majority view that these morale and efficiency
benefits are not alone enough to bring recreation within the course of employment.”).
36 ramon 's ar § 22.05[3].
17