Legally Speaking – with Bob Mionske: When work is not work

Bob;I work as a bicycle messenger in Chicago. When we are on the job, thecompany insures us against physical injury and property damage from crashes.Last week, at the end of the day, the dispatcher gave me an envelope todeliver. Because it was after five and the delivery address was near myapartment, the dispatcher told me to drop it off in the morning on my wayto work. As I was riding home, I was smacked by a hit-and-run driver (Idon’t own a car and therefore don’t have coverage for this kind of hit-and-runaccident). I lost a couple days of work and the bike was trashed. Shouldthe messenger

By Bob Mionske

Bob;
I work as a bicycle messenger in Chicago. When we are on the job, thecompany insures us against physical injury and property damage from crashes.Last week, at the end of the day, the dispatcher gave me an envelope todeliver. Because it was after five and the delivery address was near myapartment, the dispatcher told me to drop it off in the morning on my wayto work. As I was riding home, I was smacked by a hit-and-run driver (Idon’t own a car and therefore don’t have coverage for this kind of hit-and-runaccident). I lost a couple days of work and the bike was trashed. Shouldthe messenger company’s insurance cover me?
F.G.
IllinoisDear F.G.;
Whether your delivery vehicle is a bike, truck or even an ostrich, is irrelevant. What is important is whether you were within the scope of work when you were hit. If you had to get hit, it would have been better to get creamed on the way to that morning delivery. The mere fact that you were in possession of parcel for eventual delivery is likely of no legal importance.

I found many cases similar to yours involving employees who take their work trucks home, one that involved a bicycle messenger riding home in Kansas City in 1922 (alas, I found none that involved someone hit while riding an ostrich- which is small consolation to the bird world this week).

Mr. Vandewalker was a messenger for the Postal-Telegraph Cable Company, working from its substation near downtown Kansas City, Kansas. The company’s main office was across the river in downtown Kansas City, Missouri. (He lived on the Missouri side.) He rode his own bicycle, but was under the authority and control of the operator in charge of the substation. His ordinary working hours were from 8:00 a.m.until 5:00 p.m., though he sometimes had to work later if a flash telegram needed delivery.When he first began work for the company, he was instructed that the reports and communications from his office destined for the main office should be taken home in the evening, kept there overnight, and delivered at the main office at 8:00 the following morning. From there he wouldgo to the Kansas substation, ordinarily arriving about 8:20. On the afternoonof Saturday, August 26, 1922. Vandewalker left his office about 5:00 p.m. and was going directly home. As was his custom, he had with him the reports from the main office for delivery the following Monday morning. On the way home, he was hit by a car when he was a few feet on the Kansas side of the state line, but fell over the state line into Missouri and was hurt.The case is actually somewhat famous for the state-line issue, but the court also had to grapple with the problem of whether he was acting within the scope of his employment. The court determined that to charge the telegraph company with liability for their employee, the legal relation of masterand servant must exist at the time of the injury. While Vandewalker hadin his custody the reports for the company to be later delivered, actualwork for the company had ceased for the day. The telegraph company no longercontrolled his movements. He might choose any route he desired to go home,or he might not go home at all. Vandewalker argued that his duties hadnot ceased; that a very important part of his work remained to be doneafter he left the office at 5:00, and that he was to take these importantpapers and put them carefully in his dresser drawer at home for safe-keepinguntil Monday morning.The court, however, held that the carrying of the report was merelyincidental to his going home. So far as the telegraph company was concerned:

 “…he could have kept the report in his pocket and goneto spend Sunday with a friend.” He was not, at the time of the accident,acting in the conduct of his master’s business and therefore the companywas not liable.”

Go ahead and ask the messenger service if they will cover you–it is possiblethat the insurance policy may have a rider covering employees travelingto or from work. But if it comes down to a legal fight, your chances arenot great, but better than most turkeys this week.Good riding
Bob (tofu-turkey eater)
(Research and drafting assistance provided by Bruce Epperson-lawstudent- Nova Southeast University)


Now read the fine print:


Bob Mionske is a former competitive cyclist who represented the U.S. at the 1988 Olympic games (where he finished fourth in the road race), the 1992 Olympics, as well as winning the 1990 national championship road race.

After retiring from racing in 1993, he coached the Saturn Professional Cycling team for one year before heading off to law school. Mionske’s practice is now split between personal-injury work, representing professional athletes as an agent and other legal issues facing endurance athletes (traffic violations, contract, criminal charges, intellectual property, etc).

If you have a cycling-related legal question, please send it to info@bicyclelaw.com. Bob will answer as many of these questions privately as he can. He will also select a few questions each week to answer in this column. General bicycle-accident advice can be found at www.bicyclelaw.com.

Important notice:
The information provided in the “Legally speaking” column is not legal advice. The information provided on this public web site is provided solely for the general interest of the visitors to this web site. The information contained in the column applies to general principles of American jurisprudence and may not reflect current legal developments or statutory changes in the various jurisdictions and therefore should not be relied upon or interpreted as legal advice. Understand that reading the information contained in this column does not mean you have established an attorney-client relationship with attorney Bob Mionske. Readers of this column should not act upon any information contained in the web site without first seeking the advice of legal counsel.