Mary DeLeon v. KCI Shuttle

The pick-up location was within view of employee's booth inside the terminal.

As a CSR for KCl Shuttle, in addition to employee's duty of selling tickets, tending to customers, promoting the KCl Shuttle business, employee was also required to approach potential customers/travelers and inquire if assistance was needed; whether it involved providing shuttle services, giving directions, supplying car rental information, calling a taxi, or other attendant services at the airport. Being discourteous or failing to assist potential customers at KCl Airport, regardless of whether the individual or potential customer was buying a ticket, could result in disciplinary action.

The employer's instructions to act as a resource and referral person were not just a courtesy, it was a sound business practice and was a requisite of the employment. Employee testified that she used her initiative as a resource person to educate potential customers about KCl Shuttle services through initial contact. Employee viewed any individual she came in contact with at KCl Airport as a potential customer and she testified this conduct and practice was consistent with her understanding of what her employer desired her to do in order to fulfill her job duties. In fact there were several occasions when travelers did not purchase a shuttle ticket at her initial contact and offer of assistance; but did seek her assistance and purchase shuttle tickets from her on later flights.

As pertinent to the instant case the KCl Shuttle Employee Handbook contains the following:

VI. B12. Courtesy

Courtesy and your attitude toward the people you come in contact with will influence the image, either positively or negatively, that people have of KCl SHUTTLE. Develop an attitude of helpfulness toward customers, fellow workers, and supervisors. Courtesy is the key to good human relations.

VI. D2. Definitions

Company Property is defined as all facilities, land, building, and automobiles owned, leased, or used by the company. It also includes other work locations, or travel to and from those locations, while in the scope and course of employment.

VI. E. Closing Statement about Conduct

In addition to the conduct listed on the preceding pages, other types of conduct injurious to security, personal safety, employee welfare and the Company's operations and any other activity, conduct or omission which, in the opinion and judgment of management, is not in the best interests of the Company is also prohibited and may result in discipline, including termination.

On January 4, 2005, employee was working as a CSR for KCl Shuttle at KCl Airport. On that day, an ice storm hit Kansas City, causing delays in traffic both on land and air. Employee initially noticed delays in the flights at KCl Airport when she arrived at work at 3:30 p.m. By 4:00 p.m., employee noticed that many flights were cancelled and by 5:00 p.m. all flights had been cancelled and basically the airport was shutdown.

Despite the cancellations employee continued to work outside her booth promoting KCl Shuttle, but selling few tickets due to the lack of any incoming flights.

During this time frame, employee noticed an elderly woman in a wheelchair attempting to use a courtesy telephone located approximately five feet from her booth. Employee approached the elderly lady to offer

assistance. In so doing, employee informed the elderly lady that she was affiliated with KCI Shuttle, and her company could offer her shuttle services if she needed transportation. However, the elderly lady indicated that she was interested in staying at a hotel in close proximity to the airport, since hotels in close proximity provided free shuttles.

At the request of the elderly lady, employee used the courtesy phone, and made arrangements for Super 8 Motel to provide shuttle service for the lady. Employee informed the Super 8 Motel representative that when the shuttle arrived, special assistance would need to be provided since the lady was confined to a wheelchair.

The Super 8 Motel representative requested that employee please arrange for the elderly lady to be at the curbside pickup as their shuttle driver would not be able to enter the airport terminal to provide assistance. Employee indicated that she would watch for the arrival of the Super 8 Motel shuttle and assist the elderly lady to the shuttle's curbside pick-up.

Employee also testified that while she was handling these arrangements on the courtesy phone, she was wearing her company vest, which portrayed her name and her employer's name, KCI Shuttle. Employee testified that several people commented how "sweet" and "nice" her conduct was in assisting the elderly lady.

Approximately two hours later the Super 8 Motel shuttle arrived and employee assisted the elderly lady in the wheelchair to the center island, which was the location of the shuttle's curbside pick-up. Also, this is the same curbside pick-up location for employee's employer, KCI Shuttle, and employee testified that six of her KCI Shuttle passengers were also waiting for her company's shuttle. The injury to the employee occurred at the curbside pick-up, i.e. the median island, when the employee slipped and fell.

The only additional witness was Ms. Cindy Petifurd, who testified in behalf of the employer. Ms. Petifurd is the airport manager for KCI Shuttle. Ms. Petifurd described the job duties and responsibilities of a customer service representative of KCI Shuttle. Basically Ms. Petifurd testified that a CSR provides customer service to travelers, principally selling tickets for shuttle service. The sales occur at booths located near baggage carousels at the airport.

Ms. Petifurd testified that a CSR is responsible for keeping track of arriving flights; when a flight arrives, the CSR is to be either in the assigned booth or near the booth when potential customers approached the baggage carousel area; the CSR is to remain in that area to approach customers and answer questions concerning possible shuttle service; Ms. Petifurd agreed that there were courtesy phones near the booth area for travelers to utilize to obtain rental cars, taxis, economy parking, etc., and Ms. Petifurd agreed that a CSR should assist any of these potential customers in the use of the courtesy phones as well as answering questions and giving directions; although Ms. Petifurd testified that the CSR is to stay in the "booth area" so that if there are any KCI Shuttle customers or if there is a need to sell a ticket a CSR must be available and in the booth to sell the ticket; Ms. Petifurd testified that a CSR is to be courteous and polite to all individuals; but she further testified that she did not want a CSR leaving an assigned "booth area" to assist individuals using competitors' shuttles.

On cross-examination Ms. Petifurd agreed that potential customers should be treated with the utmost respect, as they could be future customers and clients of KCI Shuttle; and as to the events occurring on January 4, 2005, Ms. Petifurd agreed that employee acted appropriately when she offered to sell the elderly lady a ticket with the KCI Shuttle; Ms. Petifurd also agreed that employee acted appropriately when she assisted the elderly lady in obtaining shuttle services with Super 8 Motel; and it was also appropriate for the employee to inform the Super 8 Motel representative that the elderly lady would need assistance when the shuttle arrived. However, Ms. Petifurd testified that employee should not have offered to take the woman in

the wheelchair to the median at the curbside pick-up; she reasoned that the median was outside of the "booth area" although Ms. Petifurd further testified that employee had never been informed that the median area was not part of her "booth area"; and Ms. Petifurd did not and could not define the "booth area."

The administrative law judge, analyzing this case pursuant to the "mutual benefit doctrine", concluded that the employee did not sustain an injury due to an accident arising out of and in the course of her employment. The Commission disagrees. Section 287.120.1 provides in pertinent part: "every employer ... shall be liable to furnish compensation ... for personal injury ... of employee by accident arising out of and in the course of his employment."

Simply put, "arising out of" means whether the conditions of employment caused or contributed to cause the accident. "In the course of employment" refers to the time, place and circumstances of the injury.

In awarding benefits in this case, and reversing the decision of the administrative law judge, the Commission does not necessarily pigeonhole this case as one governed by the principles of the "mutual benefit doctrine," as developed below.

Under the mutual benefit doctrine, an injury suffered by an employee while performing an act for the mutual benefit of the employer and the employee is compensable when some advantage to the employer results from the employee's conduct. For the doctrine to apply the employee must suffer an injury while engaged in activity for the mutual benefit of the employer and employee even if it is the slightest benefit. Cruzan v. City of Paris, 922 S.W.2d 473 (Mo. App. E.D. 1996).

In the case of Blades v. Commercial Transport, Inc., 30 S.W.3d 827 (Mo. banc. 2000), the Supreme Court of Missouri set forth the general guiding principles of the mutual benefit doctrine as follows:

"Each case turns on its own facts under the mutual benefit doctrine. The test is not whether any conceivable benefit to the employer can be articulated no matter how strained, but whether the act that resulted in the injury is of some substantive benefit to the employer. That is not to say the benefit needs to be tangible or great. ... but the benefit cannot be so remote that it deprives the mutual benefit doctrine of meaning."

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"However, when an employee's injury occurs off the employer's premises, when the employee is not exposed to any special hazard associated with employment, where the employer has not by words or conduct encouraged the employee's act and has no knowledge of the employee's act, and where the benefit to the employer is speculative, remote and attenuated, the mutual benefit doctrine is inapplicable."

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"The applicability of the doctrine turns on the facts of each case."

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However, in the instant case, the Commission is not convinced employee's conduct was an activity mutually benefiting both her and the employer. It appears a more appropriate analysis, based on the facts, is whether the nature of the employee's activity engaged in at the time of her injury removed her from the sphere of the

employment relationship. The Commission is of the opinion, though, the accident is compensable under both approaches.

Simply stated, employee is a sales person. Her job duty is to treat every traveler in the airport as a potential customer and to offer a potential customer shuttle service transportation with KCI Shuttle. Not only is employee required to sell shuttle tickets to potential customers, but as part and parcel of the sales persuasion, employee is to provide assistance as requested by any potential customer at the terminal, and the employer requires and encourages her to do so.

On several occasions employee has subsequently sold KCl Shuttle tickets to travelers who did not initially use her services. However, due to her courtesy and polite approach, and her offer to assist a prospective customer, some of these individuals followed up with her on return visits through Kansas City International and purchased KCl Shuttle tickets. Employee was successfully fulfilling her job duties as a resource and referral person and acquiring business in behalf of her employer.

A comparison between the facts in the Blades case, supra, and the instant case, reveals many dissimilarities: 1) Blades was not on the payroll when injur