A Capehart Scatchard Blog

Long Drive To Restaurant For Lunch Following Business Meeting Found Not Compensable

By on July 16, 2021 in Compensability with 0 Comments

Andrew Mackoff worked  as a salesman and account manager for New Brunswick Saw Services.  One of his duties was to travel to the company’s businesses for meetings and service calls.  On December 3, 2018, Mackoff left his home in Blackwood, Camden County, New Jersey and drove to West Caldwell in North Jersey for a 10:00 a.m. customer meeting.  Following the one-hour meeting, he decided to drive to the Galloping Hill Inn in Kenilworth, N.J. for lunch. He had been going to that restaurant for many years, and he loved their hot dogs.  After lunch he said he planned to go to the company office in Middlesex County because he had not been to the office for a while.

In testimony petitioner said the Galloping Hill Inn was like a “nostalgia place” for him.   He also commented that he was theoretically going to prospect because the restaurant had slicers for sandwiches.   He called the Inn a “potential customer.”  However, he admitted on cross examination that the Galloping Hill Inn was never a customer of his company, and he had no other customers to visit around the Inn.   On the way to the restaurant he was involved in a car accident.

Petitioner filed a claim petition and a motion for medical and temporary disability benefits, seeking treatment for his injuries.   Respondent opposed the motion and denied the claim as not arising from employment.  The Honorable Ingrid French found that petitioner failed to prove a work-related accident.  The Judge was not persuaded that petitioner was really intending to “prospect” the hot dog restaurant.   The Judge commented that petitioner’s “primary purpose for driving to the hot dog place was personal and not work-related.”  She added that petitioner: “unequivocally testified that immediately following his meeting . . . he was going to get his lunch at the ‘hot dog place.’  Then, his attorney prodded him to state that ‘theoretically,’ the ‘hot dog place’ was also a prospective customer.  Specifically, and in support of this ‘theory,’ the petitioner stated that ‘any’ food establishment that sells prepared food is a potential customer.”

The Judge of Compensation found that petitioner had concluded his work day and was simply on his way to lunch. The Appellate Division affirmed the dismissal of the case.  The Court said, “The definition of ‘employment’ under the statute is multi-faceted and includes situations in which the employee is physically away from the employer’s premises, but nevertheless is ‘engaged in the direct performance of duties assigned or directed by the employer.’”

The Court also observed that employees who have been injured in the course of a ‘minor deviation’ have been found to be covered for workers’ compensation purposes.  But the Court did not feel this was a minor deviation case.  The Court noted that petitioner admitted that if he drove to Galloping Hill Inn to get a hot dog and then to his office it would have been about two hours out of his way rather than going directly to the office.  This was a key fact in the conclusion that the primary purposes of the trip was personal and non-work related.

The Court relied mostly on Jumpp v. City of Ventnor, 177 N.J. 470 (2003), noting that Mr. Jumpp’s accident while returning from his post office errand was found not to be a minor deviation even though the stop at the post office was only a few yards away from the road he was traveling on.  The Court said, “ . . . petitioner’s decision to travel an hour east from his West Caldwell meeting because he was hungry and ‘going to get food first’ was not the sort of activity that ‘would have been compensable if carried out by an on-premises employee.’” 

It was interesting that the Appellate Division referenced the decision in Cooper v. Barnickel Enterprises, Inc., 411 N.J. Super. 343, 346 (App. Div. 2010). In that case the petitioner’s car accident was found compensable where he was driving five miles to get a cup of coffee at a deli.  Mr. Cooper was planning to meet with his union instructor but found out that his instructor was tied up teaching a course.  Cooper admitted that he was simply killing time in getting a cup of coffee before meeting with the instructor.  A key difference between the two cases is that Mr. Mackoff’s day was basically done, although he did testify that he planned to visit the company office after lunch.   The Judge of Compensation and the Appellate Division in Cooper felt that petitioner was just taking his coffee break, like any other employee would.  But Mr. Mackoff was driving a much longer distance off the route to his office for a hot dog without having any other business meetings scheduled that day.

This case can be found at Mackoff v. New Brunswick Saw Service, A-3625-19 (App. Div. July 14, 2021).

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About the Author

About the Author:

John H. Geaney, a shareholder and co-chair of Capehart Scatchard's Workers' Compensation department, began an email newsletter entitled Currents in Workers’ Compensation, ADA and FMLA in 2001 in order to keep clients and readers informed on leading developments in these three areas of law. Since that time he has written over 500 newsletter updates.

Mr. Geaney is the author of Geaney’s New Jersey Workers’ Compensation Manual for Practitioners, Adjusters & Employers. The manual is distributed by the New Jersey Institute for Continuing Legal Education (NJICLE). He also authored an ADA and FMLA manual as distributed by NJICLE. If you are interested in purchasing the manual, please contact NJICLE at 732-214-8500 or visit their website at www.njicle.com.

Mr. Geaney represents employers in the defense of workers’ compensation, ADA and FMLA matters. He is a Fellow of the College of Workers’ Compensation Lawyers of the American Bar Association and is certified by the Supreme Court of New Jersey as a workers’ compensation law attorney. He is one of two firm representatives to the National Workers’ Compensation Defense Network. He has served on the Executive Committee of Capehart Scatchard for over ten (10) years.

A graduate of Holy Cross College summa cum laude, Mr. Geaney obtained his law degree from Boston College Law School. He has been named a “Super Lawyer” by his peers and Law and Politics. He serves as Vice President of the Friends of MEND, the fundraising arm of a local charitable organization devoted to promoting affordable housing.

Capehart Scatchard is a full service law firm with offices in Mt. Laurel and Trenton, New Jersey. The firm represents employers and businesses in a wide variety of areas, including workers’ compensation, civil litigation, labor, environmental, business, estates and governmental affairs.

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