Salt Lake City Corp. v. Ross

2007 UT 4
This opinion is subject to revision before final
publication in the Pacific Reporter.
IN THE SUPREME COURT OF THE STATE OF UTAH
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Salt Lake City Corporation, 	No. 20050774
Petitioner,
v.
Labor Commission and 	F I L E D
Michelle S. Ross,
Respondents. 	January 12, 2007
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Original Proceeding in this Court
Attorneys: 	Thomas C. Sturdy, Kristy L. Bertelsen, Salt Lake
City, for petitioner
Alan L. Hennebold, Salt Lake City, for respondent
Labor Commission
Gary E. Atkin, Marsha Atkin, Salt Lake City, for
respondent Ross
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NEHRING, Justice:
¶1 	The law uses the “going and coming” rule to determine
when a person acquires and abandons her status as an employee at
the beginning and end of the workday. 	If an untoward event,
typically an accident of some kind, befalls an employee who is
“just” coming or going from the workplace, it is of no legal
consequence to the employer.
¶2 	However, we must ask how much more than “just” coming
and going is required before the reach of the law grasps an
employer whose employee is in transit. 	As the legal history of
the automobile accident involving Salt Lake City police officer
Michelle Ross illustrates, our answer to the question affects
directly the legal rights and responsibilities of the employee,
employer, and third parties.
¶3 	This is the second time this court has been called upon
to review the application of the going and coming rule to

No. 20050774 	2
Ms. Ross’s accident. 	In Ahlstrom v. Salt Lake City Corp., 2003
UT 4, 73 P.3d 315, we held that the district court had properly
applied the going and coming rule when it determined that at the
time of the accident Ms. Ross was not employed by Salt Lake City
to a degree that would render the City vicariously liable for her
negligence.
¶4 	Now, we confront the question of whether the appeals
board of the Utah Labor Commission properly applied the going and
coming rule when it affirmed the ruling of an administrative law
judge (ALJ) that Ms. Ross was entitled to receive workers’
compensation benefits because the accident arose out of and in
the course of her employment. 	As we will explain, the
application of the going and coming rule to a single event may
result in treating a person as an employee for the purpose of
establishing eligibility for workers’ compensation benefits while
withholding employee status for the purpose of making the
employer liable to third persons. 	We hold that the going and
coming rule does not bar Ms. Ross from receiving workers’
compensation benefits, and consequently, we affirm the
Commission’s award of workers’ compensation benefits to Ms. Ross.
BACKGROUND
¶5 	At the time her automobile accident occurred, Ms. Ross
was a Field Training Officer (FTO) for the Salt Lake City police
department. 	She was returning to her home in Tooele, Utah, from
an FTO meeting she had attended while off duty. 	She drove a
marked patrol car. 	Her infant son was a passenger.
¶6 	Ms. Ross was permitted to drive the patrol car as a
participant in the police department’s “Take Home Car Program.”
Salt Lake City implemented the program to achieve several
objectives: 	(1) to make more officers available for immediate
response, (2) to improve the care of city-owned patrol cars, and
(3) to increase Salt Lake City’s police presence in the
community.
¶7 	Salt Lake City imposed several restrictions and
requirements on participating officers. 	Officers were required
to keep their cars clean and well maintained. 	They were required
to carry a service gun, police radio, identification, flashlight,
ticket book, report forms, and flares and wear appropriate attire
in the vehicle at all times. 	Even when off duty, officers were
required to monitor police radio and, if necessary, respond to
emergency calls. 	While officers were permitted to carry civilian
passengers under some circumstances, passengers were not

3 	No. 20050774
permitted to accompany officers when they responded to
emergencies or potentially dangerous calls.
¶8 	The program imposed additional requirements on
participating officers who, like Ms. Ross, lived outside Salt
Lake County. 	Her off-duty use of her patrol car was limited to
commuting between work and home, and she was required to pay Salt
Lake City $34.62 every two weeks for her travel outside Salt Lake
County.
¶9 	On February 24, 2000, Ms. Ross drove her patrol car,
accompanied by her son, from Tooele to Salt Lake City, attended
the FTO meeting, and then set out for home. 	On the way, Ms. Ross
fueled her patrol car at the Salt Lake City gas pump and
proceeded to Tooele. 	As required, Ms. Ross had her police radio
on during her commute home, although radio reception degraded as
she entered Tooele County. 	On Highway 36 in Tooele County, her
car crossed the center line and hit several vehicles traveling in
the opposite direction. 	Ms. Ross injured her neck in the
accident.
¶10 	Chad and Stacy Ahlstrom occupied one of the automobiles
that Ms. Ross struck. 	The Ahlstroms sued Ms. Ross and Salt Lake
City Corporation for negligence. 	We affirmed the summary
dismissal of Salt Lake City in Ahlstrom v. Salt Lake City Corp.,
2003 UT 4, ¶ 18, 73 P.3d 315.
¶11 	Ms. Ross made a claim for workers’ compensation
benefits based on the injuries she sustained in the accident.
Salt Lake City resisted her claim. 	The City contended that
Ms. Ross was not injured in the course of her employment under
the statutory requirements set out in Utah Code section 34A-2-401
and was therefore ineligible for workers’ compensation benefits.
An ALJ rejected Salt Lake City’s claim. 	He determined that the
coming and going rule did not disqualify Ms. Ross from receiving
workers’ compensation benefits.
¶12 	The City sought review of the ALJ’s order before the
appeals board of the Utah Labor Commission. 	The appeals board
issued an order denying review and affirmed the ALJ’s ruling.
The City then brought this appeal.
STANDARD OF REVIEW
¶13 	We review the legal determinations of the Labor
Commission Appeals Board under a correction-of-error standard,
ceding the board no deference as appellate courts have “the power
and duty to say what the law is and to ensure that it is uniform

1 We have not retreated, however, from exercising de novo
review of equally fact-intensive matters that arise in the realm
of search and seizure. 	We have not ceded deference in these
cases both because they concern constitutional rights and because
irrespective of the difficulties inherent in extracting general
rules from fact-intensive matters, we nevertheless believe it a
worthy endeavor to offer some guidance to law enforcement
officials charged with the duty of conducting their affairs
within constitutional bounds. 	See State v. Brake, 2004 UT 95,
¶ 15, 103 P.3d 699.
No. 20050774 	4
throughout the jurisdiction.” 	State v. Pena, 869 P.2d 932, 936
(Utah 1994) (citation omitted). 	We will disturb the Commission’s
findings of fact only if they are clearly erroneous. 	Drake v.
Indus. Comm’n of Utah, 939 P.2d 177, 181 (Utah 1997). 	The issue
before us is a mixed question of law and fact, one that calls
upon us to review the application of law to fact. 	The facts
relating to the accident and the take-a-car-home program are
undisputed. 	We concern ourselves with the interplay between
these facts and the eligibility requirements for workers’
compensation benefits found in Utah’s Workers’ Compensation Act,
Utah Code sections 34A-2-101 to -803.
¶14 	In Drake, we explored in considerable detail the
standard of review that we should assign to appeals from
Industrial Commission rulings based on mixed questions of law and
fact. 	We undertook this exploration in a context very similar to
the one here. 	The facts were undisputed, and the legal principle
the Commission applied to the facts was the “special errand”
doctrine, a cousin of the going and coming rule that we examine
today.
¶15 	We settled upon a conditionally deferential standard of
review grounded in two considerations. 	First, practical
difficulties attend any attempt to craft coherent and evolving
legal rules from the multifarious array of factual settings
presented by scope-of-employment cases. 	In this environment, our
preeminent role, as an appellate court charged with interpreting
the law, would shrink away if we became a forum to merely
reassess the facts. 1 	See Drake, 939 P.2d at 181 (citing Pena,
869 P.2d at 936).
¶16 	Furthermore, our statutory obligation to give effect to
the Act’s purpose to “‘alleviat[e] hardship upon workers and
their families’” heightens the degree of oversight of Commission
rulings, particularly those that result in a denial of benefits.
Id. at 182 (quoting Baker v. Indus. Comm’n, 405 P.2d 613, 614
(Utah 1965)). 	We will therefore look closely to assure ourselves

5 	No. 20050774
that the Commission has liberally construed and applied the Act
to provide coverage and has resolved any doubt respecting the
right to compensation in favor of an injured employee. 	See id.
at 182 (citing State Tax Comm’n v. Indus. Comm’n, 685 P.2d 1051,
1053 (Utah 1984)).
¶17 	Our obligation to adopt an employee-friendly
perspective on scope-of-employment cases from the Commission
highlights the material difference between this case and the
earlier case involving this accident, Ahlstrom v. Salt Lake City
Corp., 2003 UT 4, 73 P.3d 315. 	Unlike Ms. Ross’s quest for
benefits, the Ahlstrom plaintiffs were not entitled to a
sympathetic application of the going and coming rule in aid of
their effort to make Salt Lake City vicariously liable for
Ms. Ross’s negligence. 	Thus, elements of the take-a-car-home
program that were insufficient to render Ms. Ross an employee for
the purpose of Salt Lake City’s vicarious liability were
nevertheless adequate to make Ms. Ross eligible to receive
workers’ compensation benefits.
¶18 	We break no new ground by applying different standards
of review to scope-of-employment cases derived from vicarious
liability and workers’ compensation cases. 	In Ahlstrom, we
anticipated the arrival of this appeal when we stated that
[w]ith very different presumptions governing
worker’s compensation and negligence cases,
it would not be wise to hold that the rules
governing scope of employment questions in
one area are wholly applicable to the other
because the legal effect of identical facts
may be different in a negligence case than in
a worker’s compensation case.
Ahlstrom, 2003 UT 4, ¶ 7.
ANALYSIS
¶19 	To be eligible for workers’ compensation benefits, an
employee’s injury must arise out of and be sustained in the
course of her employment. 	Utah Code Ann. § 34A-2-401. 	As a
general rule in Utah, an employee’s injury does not arise out of
and occur in the course of employment if the injury is sustained
while going to or coming from work. 	VanLeeuwen v. Indus. Comm’n,
901 P.2d 281, 284 (Utah Ct. App. 1995). 	The coming and going
rule arose because “‘in most instances, such an injury is
suffered as a consequence of the risks and hazards to which all
members of the traveling public are subject rather than risks and

2 It is true that we have also leaned on the concept of
employer control over the activities of the employee to help us
solve scope-of-employment puzzles. 	VanLeeuwen, 901 P.2d at 285.
The power to control may, however, be usefully thought of as a
gauge by which to measure the allocation of benefits, as the
beneficiary of an activity will always be the party in whom vests
the power to control its performance. 	Our court of appeals
called into question the universal utility of employer control in
assessing scope-of-employment cases when it affirmed an award of
compensation for an injury sustained during the course of an
activity (salting a driveway) free of any employer control. 	As
such, the Commission correctly concluded that the employee’s
injuries arose “in the course of” his employment. 	Ae Clevite,
Inc. v. Labor Comm’n, 2000 UT App 35, ¶ 10, 996 P.2d 1072.
No. 20050774 	6
hazards having to do with and originating in the work or business
of the employer.’” 	Drake v. Indus. Comm’n of Utah, 939 P.2d 177,
182 (Utah 1997) (quoting 82 Am. Jur. 2d Workers’ Compensation
§ 296 (1992)).
¶20 	While being conceptually accessible, the “risks and
hazards” formulation of the going and coming rule is poorly
equipped to handle the task of evaluating the relationship
between an employer and an employee at the time an injury occurs.
Thus, courts have searched for more utilitarian methods to
measure the degree of employer involvement in the activity in
which the employee was engaged when the injury occurred. 	In
almost every instance, these measures can be reduced to one unit
of measure--benefit. 2 	Typically, courts have adopted the
methodology of dissecting the circumstances of the trip that
resulted in the injury, assaying each for indicia of benefit,
assigning the element of benefit to either the employer or the
employee, and tallying up the final allocation of benefits. 	See
VanLeeuwen, 901 P.2d at 285.
¶21 	Indeed, we conducted such an exercise in Ahlstrom.
After doing so, we concluded that the benefits accruing to the
City from Ms. Ross’s trip to her home were insufficient to “tip
the balance” of benefits to the side of the City. 	Ahlstrom v.
Salt Lake City Corp., 2003 UT 4, ¶ 12, 73 P.3d 315.
¶22 	The City urges us to repeat the Ahlstrom “tipping
point” approach in this appeal. 	The City implies that we could
not apply Ahlstrom without exposing a flaw in the Commission
ruling. 	The Commission determined that “on balance” the City
received the predominant benefit from Ms. Ross’s travel.
According to the City, this allocation of benefits is squarely at

7 	No. 20050774
odds with Ahlstrom’s conclusion that the balance of benefits
tipped in favor of Ms. Ross. 	Id. ¶ 13.
¶23 	We have made clear, however, that we reject the claim
that the allocation of benefits standard applicable in negligence
cases can be superimposed onto workers’ compensation cases. While
we expressly made this point in Ahlstrom, we have long indicated
that the benefit to an employer need not be predominate over
those of an employee before the employee becomes eligible for
workers’ compensation benefits. 	In Black v. McDonald’s of
Layton, 733 P.2d 154, 156 (Utah 1987), we stated that an employee
may be eligible for workers’ compensation benefits if the injury
occurs while the employee is engaged in an activity that is at
least incidental to employment. 	We added that an activity is
“incidental to the employee’s employment if it advances, directly
or indirectly, his employer’s interests.” 	Id.
¶24 	Even if the Commission and this court disagree over the
allocation of benefits between the City and Ms. Ross, we are
satisfied that the City enjoyed sufficient benefits from
Ms. Ross’s participation in the take-a-car-home program to affirm
the Commission’s determination of eligibility. 	The City does not
dispute the Commission’s conclusion that the City benefitted from
the program by having more officers available for immediate
response, from better care of patrol cars, and from increased
police visibility. 	Officers with take-home cars were prepared to
respond to emergency calls at any time. 	These officers always
had at hand those items required to be kept in the take-home
patrol cars, including their service gun, police radio,
identification, flashlight, ticket book, report forms, and
flares.
¶25 	While it is also true that Ms. Ross enjoyed benefits
from the program in the form of reduced transportation costs,
these benefits are largely irrelevant to this scope-of-employment
inquiry. 	Our focus is, instead, properly limited to whether the
City derived sufficient benefits from the program to render
Ms. Ross’s injury one that occurred in the course of and arose
out of her employment. 	The benefits conferred on Ms. Ross cannot
be used to offset or diminish the significance of the benefits
derived by the City in making this calculation.
¶26 	The City erects its final line of defense around the
notion that even if Ms. Ross’s participation in the
take-a-car-home program conferred sufficient benefits on the City
to make participating officers eligible for workers’ compensation
benefits under most circumstances, those benefits had ebbed away
by the time Ms. Ross’s patrol car struck the Ahlstroms’ vehicle

No. 20050774 	8
well outside the boundaries of Salt Lake City. 	We disagree. 	The
program contemplated that its participants might reside outside
Salt Lake City and collected a mileage-based fee from those who
did. 	The duty of participants to conform to the rules and
regulations of the program were not, however, extinguished when
the patrol car crossed the municipal boundary. 	The benefits that
the program conferred on the City were present irrespective of
the purpose of Ms. Ross’s use of her patrol car or the
destination of any particular trip. 	The program was designed in
part to encourage in officers a heightened sense of
responsibility toward their vehicles and to make them less
likely, in the vernacular of automobile care, to treat the
vehicles like “rentals.” 	Moreover, while Ms. Ross’s practical
ability to respond promptly to a call would be diminished as she
drove outside the boundaries of Salt Lake City, she was not
relieved of her program duties and obligations when she left the
confines of the city. 	Thus, benefits conferred on the City
sufficient to render Ms. Ross eligible for workers’ compensation
benefits rode with Ms. Ross wherever she traveled as a program
participant.
CONCLUSION
¶27 	The coming and going rule did not bar Ms. Ross
from receiving workers’ compensation benefits. 	Salt Lake City
received incidental benefits from Ms. Ross’s travel that were not
common to commuter trips by ordinary members of the workforce.
Consequently, Ms. Ross’s accident arose out of and in the course
of her employment under Utah’s Workers’ Compensation Act.
Accordingly, we affirm the order of the Commission.
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¶28 	Chief Justice Durham, Associate Chief Justice Wilkins,
Justice Durrant, and Justice Parrish concur in Justice Nehring’s
opinion.