What Do You Think?
When an employee’s injury does not arise out of employment, he may be able to sue his employer for negligence. But what if the employee is engaging in a work-related task, but it is entirely voluntary and outside of his normal work hours? That issue arose in the case of a mill worker who raced to work when he heard an explosion and was himself injured.
The worker was at home when he heard an explosion at the mill and immediately went there to help. He later said he felt both a duty as an employee and as a human being to help rescue coworkers whom he reasonably believed to be in danger. While attempting to help at the site of the explosion, he was injured.
He sued the company for negligence. The company asked the court to throw out the case, arguing that the injury arose out of employment and therefore the employee’s only remedy was worker’s compensation.
An injury arises out of employment when it takes place within the period of the employment, at a place where the employee reasonably may be, and while the employee is fulfilling his duties or doing something incidental to his duties.
Could employee sue for negligence?
A. Yes. He was not on the clock at the time he was injured and he was at home when the explosion occurred.
B. No. He had an obligation to help with rescue efforts.
If you selected B, you agreed with the court in Dodge v. Didion Milling, Inc., No. 2025AP3 (Wis. Ct. App. 07/30/26), which affirmed the lower court’s decision.
The court explained that the focus of Wisconsin’s “arise out of” requirement is on services growing out of and incidental to an injured worker’s employment. This includes the employee’s listed job duties as well as further work that advances the employer’s interests, is reasonably necessary at the time, and which the employee has not been forbidden from doing.
Here, the employee’s actions amounted to rendering a service to his employer in the form of helping it rescue its workers. He even testified that part of what spurred him to help was sense of duty as an employee. Further, there was no dispute that he was injured while attempting to assist in the rescue.
The fact that the mill worker was at home and outside of his work hours when the explosion occurred was not determinative. The right to recover workers’ compensation, the court said, does not hinge on whether the employee is being paid for the time the injury occurs, as long as he is performing a duty that arises out of his employment.
The court affirmed the lower court’s dismissal of the case.
