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    On June 6, Salt Lake City v.  Ross was argued before the Utah Supreme Court, where it was transferred after briefing before the Court of Appeals.  Officer Ross suffered injuries when her police vehicle car collided with another vehicle near Tooele, while she was returning home after a one hour, required meeting in Salt Lake.  The Commission found she had contracted to drive her police vehicle to and from work as part of a “Take Home Car Program” which specifically contemplated vehicle use outside of Salt Lake County for officers residing in adjoining counties.  Although she had her 18 month old child in the vehicle, the Program contemplated passengers may be in the vehicle, although they had to be left at a safe place before the officer could respond to dangers calls or emergencies.  She had all the equipment with her  to allow her to respond to calls or emergencies, and she was monitoring her police radio, all as she was obligated to do under the Program.

    Salt Lake City’s Brief centered their reliance on the “going and coming rule,” the fact that she admitted to “spotty reception” around Tooele, and that she had an 18 month old child with her.  They also claimed the Commission was bound by Ahlstrom v.  Salt Lake City, 73 P.  3d 315 (2003) in which the Supreme Court found that the facts were not sufficient to find Officer Ross was acting within the course and scope of her employment for purposes of Salt Lake City’s vicarious liability.  Before the Supreme Court, however, they stated, for the first time, that she would have been covered if the collision had occurred in Salt Lake City, causing the Court to question the logic of that argument and just how they expected her to park the police car at the City line.  The Court also secured the City’s acknowledgment that there is a significant difference between the standards applicable for purposes of awards of worker’s compensation benefits and those applicable for purposes of vicarious liability.

    The major factor from other jurisdictions in deciding such cases has been the requirement that the officer be monitoring the radio for calls, thereby rendering them subject to the employer’s ongoing control.  In response to the City’s arguments that the “spotty reception” precluded reliance on those cases, the Court again questioned how an employee’s coverage could kick on and off during a trip, depending on the reception.  A decision in the case is anticipated in the latter part of this year.  During the interim, the City appears to be following up on their threat to significantly modify or terminate their “take home car program” in order to remove their potential liability for such claims.

            By Gary E. Atkin, UTLA Journal, Summer 2006
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