I. General Meaning and Interpretations of "Course of Employment"
A . General
South Carolina is one of many states which employ a two-pronged test in determining whether an injury is compensable under the South Carolina Workers' Compensation Act. Specifically, the injury must both "arise out of the employment while at the same time be in "the course of the employment.1 As stated in Section 42-1-160 of the Act, both an "injury and personal injury shall mean only injury by accident arising out of and in the course of the employment."2
South Carolina courts have discussed this two-pronged test in numerous cases dating back to the 1940's. "It has been well stated that the two parts of the phrase 'arising out of and in the course of the employment' are not synonymous, and both must exist simultaneously before any court will allow recovery...."3 "One without the other will not sustain an award ... the two are so entwined that they are usually considered together in the reported cases; and a discussion of one of them involves the other."4
However, "[w]hile there is agreement as to the proper rule, as usual, the difficulty arises in the application of the rule to the facts of the particular case."5
As covered in more detail in Chapter 4, the words "arising out of refer to the origin or the cause of the accident. Specifically, an accident arises out of the employment when the accident happens because of the employment.6 In other words, the employment is a contributing proximate cause of the accident.7
However, the words "in the course of employment" refer to the time, place, and circumstances under which the accident occurs."8 Accordingly, to determine whether an accident occurred "in the course of" the employment, the courts will look to the facts regarding the time, place, and circumstances of the accident.9
II. Going to or Coming from Work
A . General
"As a general rule, an employee going to or coming from the place where his work is to be performed is not engaged in performing any service growing out of and incidental to his employment, and, therefore, an injury sustained by accident at such time does not arise out of and in the course of his employment."10 South Carolina's rule11 originated in Gallman v. Springs Mills.12 In Gallman, the claimant sought compensation for an injury resulting from a fall on an icy "mill village" street while going to work. The court applied the "going to and coming from" rule and denied compensation.13
B. Exceptions
The South Carolina Supreme Court has carved out five specific exceptions to the "Going to and Coming from Rule." These exceptions are as follows:
(1) In going to and returning from work, the means of transportation is provided by the employer, or the time that is consumed is paid for or included in the wages;
(2) The employee, on his way to or from his work, is still charged with some duty or task in connection with his employment;
(3) The way used is inherently dangerous and is either the exclusive way of ingress and egress to and from his work OR constructed and maintained by the employer;
(4) The place of injury was brought within the scope of employment by an express or implied requirement in the contract of employment of its use by the employee in going to and coming from work; or
(5) An employee sustains an injury while performing a special task, service, mission, or errand for his employer, even before or after customary working hours, or on a day on which he does not ordinarily work.14
A detailed discussion of these Exceptions is discussed below.
1. Inherently Dangerous Ways Leading to and from Employer's Premises
One exception to the going and coming rule occurs when the employee's way to work "is inherently dangerous and is either (a) the exclusive way of ingress and egress to and from his work; or (b) constructed and maintained by the employer."15
For the exception to apply, the way to and from work must be inherently dangerous. In E.I. DuPont DeNemours Company v. Hall,16 the claimant was injured on a public highway maintained by his employer for security reasons, but was denied compensation. The Gallman and DuPont cases suggest that "inherent danger" is danger not ordinarily encountered by the public, as opposed to the normal hazards of using a public way. The fact that the "public way" was privately owned and operated was insignificant because the required "inherent" danger was absent. Lamb v. Pacolet Manufacturing Company,17 presents a clearer example of an inherently dangerous employer-controlled way. In Lamb, an employee injured herself on an icy set of steps leading from a mill village to the mill where she worked and was awarded compensation. The court noted that the steps "did not begin and end at a public place of business and were not used by the public generally, but were built and maintained by the employer for the use of its employees, and such other people... with the acquiescence or consent of the mill owners."18 The court also noted that steps are inherently dangerous when they are icy and imputed constructive knowledge of this to the employer.19
In Eargle v. South Carolina Electric & Gas Company,20 the South Carolina Supreme Court made clear that these cases do not depend solely on the employer's degree of control over the ingress to and egress from the workplace. Instead, the test is whether there is a causal relationship between the employment and the injury. In Eargle, the court awarded compensation to the claimant's decedent. A power plant worker was called into work on his day off because of an emergency. He could only reach the plant by crossing a dam or by walking over a railroad trestle. Both ways were inherently dangerous because they traversed bodies of water, and when walking on a railroad trestle, an employee had to watch for approaching trains. The decedent could not walk across the trestle because it was a foggy day. Nor could he cross the dam because it was a condition of his employment that he not do so when water covered it, as it did that day. Instead, he tried to cross the water in a boat, but he drowned.
The Eargle court noted that employees may not unnecessarily increase the risk of injury beyond that contemplated in the employment contract but found that Eargle had not done so.21
In Eargle, the court found the danger to be an inherent condition of employment.22 However, the court apparently made a one-time departure from the case law on this subject with respect to the "inherent danger" doctrine. Specifically, the court cited with approval the United State Supreme Court's holding in Cudahy Packing Company of Nebraska v. Parramore,23 and noted that danger common to the public, as in Gallman, would not destroy a causal link between work and injury if the employee was peculiarly or abnormally subjected to the danger by virtue of his employment.
2. Transportation Provided by the Employer
In Sola v. Sunny Slope Farms,24 the South Carolina Supreme Court outlined the second exception to the "going and coming" rule as "[w]here in going to and returning from work, the means of transportation is provided by the employer, or the time that is consumed is paid for or included in the wages."25 The question of whether something constitutes a provision of transportation is a question of fact.26
No irrefutable presumption exists in applying this exception.27 While not ruled inadmissible, circumstantial evidence was found insufficient to show that a deceased claimant's statement, "I'll be back in a minute," alluded to a business use of a company car, even though it was admitted that the statement was in response to a phone call purportedly calling the claimant out on emergency work.28
In Boykin v. Prioleau,29 the employer furnished a car and driver to take claimant's decedents home from work. Instead, the driver took them drinking. The court held that whether the injury arose out of the course and scope of employment was a question of fact,30 even though the injury arose out of a collision while heading back in the direction of the original homeward route and in the employer-owned vehicle.
Courts can infer from the facts that employers furnish transportation. When the employees ordinarily pay for their transportation, but on the day of the accident the employer gives them gas to take a company truck to pick them up, the courts infer that the employer's actions were on behalf of the company and not gratuitous. However, in Bailey v. Santee River Hardwood Company,31 the court held that "the rule requires the provision of transportation to be 'deliberate and substantial' for the employee to meet the exception... even though no South Carolina case define[s] deliberate and substantial."32 Moreover, "[t]he travel money paid should defray all or substantially all the cost oftravel."33 The court continued, stating that "[t]he underlying principle is that 'employment should be deemed to include travel when the travel itself is a substantial part of the service performed'... . The basis for the rule is that the employee gains a benefit from the transportation."34
In weighing these factors to determine whether payment for travel meets the exception, the court in Byrd v. Stackhouse Sheet Metal Works,35 held that although "[a] factor supporting compensation is whether a provision of transportation is held out as an inducement to employment... simply hiring an employee who lives far away from the employer's premises, and the resulting expectation of extensive travel to and from work, is not a basis for awarding compensation."36 Another factor heeded by courts is whether the provision of transportation is held out as an inducement to employment.37
The claimant in McMillan v. Huntington & Guerry Electric Company38 worked for an employer in Greenville at a rate of $4 per hour. The employer required him to travel to nearby towns and compensated him for this. According to one of the owners: "If you work within a 15-mile radius of...
