Employee Not Awarded Benefits for Injury that Occurred While Taking Employer’s Scrap Metal to Sell for Personal Profit

The Nebraska Court of Appeals was recently faced with an interesting set of facts in Brittain v. H&H Chevrolet, 21 Neb. App. 986 (2014). Brittain worked as a “lot porter” for H&H. One of his duties was to remove trash from the service building and dispose of it in Dumpsters located on the premises. Brittain had a hobby which included scavenging discarded metal from various sources and selling it to a local scrapyard. He stored the metal in his home for approximately 3 months and then sold the metal to a recycling center, making about $20 or $30 per load.

On the date of injury, Brittain loaded a cart with two trash cans from the service building and wheeled them to the Dumpster. While dumping the trash, he noticed a piece of metal, which he decided to salvage. He stopped at his personal vehicle to load the metal so he could take it home and sell it. He testified that the parking lot was clear of snow and ice that day, except for the area near the back of his truck where plowed snow had been piled. Despite the snow and ice, Brittain walked toward the back of his truck to load the metal. After loading, Brittain slipped on the ice and injured his hip. He testified that had he not stopped to put the piece of metal in his truck, he would not have fallen.

H&H’s employee handbook included provisions prohibiting “outside employment” and taking “new and used parts” from the premises. Additionally, Brittain never asked H&H for permission to take the metal. However, Brittain testified he did not feel he was breaking any rules by removing the metal pieces from the premises. He further testified that an employee named “John” also recycled items from H&H. The president of H&H testified that “John” was allowed to take certain metal items, on his own time, with permission.

Neb. Rev. Stat. §48-101 states that “when personal injury is caused to an employee by accident or occupational disease, arising out of and in the course of his or her employment, such employee shall receive compensation therefor from his or her employer if the employee was not willfully negligent at the time of receiving such injury.” The trial court found that Brittain’s accident did not arise out of his employment nor did it occur in the course of his employment and therefore found it not compensable. It determined that Brittain had “no work-related business for being at his truck” and that his straying from the path between the service center and the Dumpster constituted a substantial deviation from Brittain’s employment, because the task was performed for personal benefit rather than to fulfill the requirements of his position at H&H.

On appeal, Brittain argued that he was performing the duties of his position by removing the trash, putting some in the Dumpster, and putting the metal scraps into his truck. He also asserted that he was not violating specific instructions and that he was still fulfilling the duties of his position and that therefore, his actions at the time of his fall were incident to his employment. The Court of Appeals affirmed the trial court’s decision, finding that Brittain had no work-related reason to go to his truck or to load any materials into his truck and that the act was for his own personal benefit, not for the benefit of H&H.

For more information about accidents that occur while at work but that do not “arise out of” or “in the course of” employment, please contact Sara Hughes at shughes@baylorevnen.com or any of the Baylor Evnen workers’ compensation attorneys at (402) 475-1075.