Wisconsin Lawyer
Vol. 82, No. 8, August 2009

• Corporations
• Criminal Law
• Criminal Procedure
• Evidence
• Insurance
• Landlord-Tenant
• Mental Commitments
• Real Property
• Torts
• Worker’s Compensation

Corporations

Yates v. Holt-Smith, 2009 WI App 79 (filed 14 May 2009) (ordered published 30 June 2009)

Yates and Holt-Smith were each employees, officers, directors, and shareholders of their investment firm (HSYA). From 1987 through 2004 each received an equal salary plus a year-end payment, which sometimes exceeded $1 million, that equaled half the firm’s profits for the year. In 2005 Yates received no year-end payment. Yates then sued Holt-Smith. The circuit court found that Holt-Smith had breached her fiduciary duty to Yates and that Holt-Smith’s decision-making fell outside the business judgment rule.

The court of appeals affirmed in an opinion authored by Judge Bridge. “[T]he sole issue in need of resolution on appeal is whether Holt-Smith’s actions with respect to the year-end payment constituted a breach of a fiduciary duty owed to Yates” (¶ 13). First, the court of appeals held that the circuit court properly found that the year-end payment was not a salary “bonus” but was a constructive dividend in which the firm’s profits over $50,000 were equally divided (¶ 17). Second, the court of appeals held that in withholding the payment, Holt-Smith breached her fiduciary duty to Yates as a shareholder. The circuit court found that Holt-Smith had effectively manipulated the firm’s corporate governance to ensure that Yates would not attend the year-end board meeting at which it was decided that no dividend would be paid. “The evidence demonstrates that Holt-Smith’s course of conduct during 2005 effectively communicated to Yates that various sources of income, including the year-end dividend here at issue, were in jeopardy. The record establishes that Holt-Smith’s motive was to further pressure Yates to sell her shares to Holt-Smith on Holt-Smith’s terms. The failed board meeting was not the cause of the non-payment of a dividend in 2005; it was merely additional evidence of Holt-Smith’s motivation” (¶ 26).

Third, the court of appeals rejected Holt-Smith’s contention that pursuant to Reget v. Paige, 2001 WI App 73, 242 Wis. 2d 278, 626 N.W.2d 302, “she had no authority to cause HSYA to pay Yates a dividend without a dividend having been declared by the board of directors” (¶ 27). “The rule in Reget has no application to the facts here. As discussed above, Holt-Smith’s breach of fiduciary duty did not occur in the context of her role as a company officer who failed to disburse a dividend. Instead, it occurred in the context of her role as director and her corresponding power to prevent Yates from receiving a dividend” (¶ 28).

Finally, the court of appeals held that Yates was not entitled to prejudgment interest. The record reflected that “even by the time of trial, Yates’ theory of damages with respect to her breach of fiduciary duty claim was sufficiently generalized that it was not liquidated or liquidable. We therefore reject Yates’ claim to prejudgment interest” (¶ 34).

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Criminal Law

State v. Huff, 2009 WI App 92 (filed 5 May 2009) (ordered published 30 June 2009)

Huff was convicted of conspiracy to commit election bribery. His chief contention on appeal was that “because the persons with whom he was found to have conspired were undercover law-enforcement officers ineligible to vote in the election involved, it was impossible for him to have committed the crimes” (¶ 1). The court of appeals affirmed in an opinion written by Judge Fine.

Wisconsin criminal law makes unlawful both unilateral and bilateral conspiracies. “[U]nder a unilateral conspiracy a person who intends to accomplish the objects of the conspiracy is guilty even though ‘the other members of the conspiracy never intended that a crime be committed.’ ... This same logic applies to the next step: that is, where the fulfillment of the conspiracy is not only highly unlikely, ... but is legally impossible, as is the case here” (¶ 11). Although no Wisconsin case law dealt with the legal-impossibility scenario, federal authority supported the conclusion and was consistent with state criminal law.

The court also held that error occurred when the trial court failed to require the court reporter to transcribe the audiotapes when they were played to the jury. Huff did not object, however, and so the court analyzed the error under the standard governing ineffective assistance of counsel, which revealed no prejudicial error. Finally, sufficient evidence supported the conviction.

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Criminal Procedure

State v. Sveum, 2009 WI App 81 (filed 7 May 2009) (ordered published 30 June 2009)

Sveum appealed his conviction for aggravated stalking. The court of appeals affirmed in an opinion written by Judge Lundsten.

The prime issue concerned the use of a global positioning system (GPS) to track Sveum’s whereabouts. First, “neither a search nor a seizure occurs when the police use a GPS device to track a vehicle while it is visible to the general public” (¶ 8). Second, the “attachment” of the GPS device to Sveum’s car did not itself constitute a search or seizure for Fourth Amendment purposes (see ¶ 15).

Third, the court rejected Sveum’s argument that the tracking information should be suppressed because the GPS device monitored his car’s location even when it was not in public view. “First, although the police presumably obtained location information while Sveum’s car was inside areas not open to surveillance, there is no indication that this same information could not have been obtained by visual surveillance from outside these enclosures.... Second, even if the police had obtained some information about the movement of Sveum’s car within the enclosures and this information should have been suppressed, Sveum suggests no reason why all of the tracking information should be suppressed” (¶¶ 17-18). “Accordingly, we conclude that no Fourth Amendment search or seizure occurs when police attach a GPS device to the outside of a vehicle while it is in a place accessible to the public and then use that device to track the vehicle while it is in public view” (¶ 19). The court of appeals, however, “urge[d] the legislature to explore imposing limitations on the use of GPS and similar devices by both government and private actors. Such limitations would appear to be consistent with limitations the legislature has placed on electronic intercepts of communications” (¶ 22).

Sveum raised a plethora of additional issues that are mostly fact intensive. In summary, “Sveum’s other challenges to his conviction include whether the GPS tracking information should be suppressed under the Wisconsin Electronic Surveillance Control Law, whether a search warrant for Sveum’s residence and car was valid, whether the circuit court committed error by admitting evidence of Sveum’s prior stalking conviction, whether Sveum’s trial counsel was ineffective, and whether an erroneous jury instruction requires a new trial. We reject all of Sveum’s arguments and affirm the judgment and order” (¶ 2).

State v. Luu, 2009 WI App 91 (filed 14 May 2009) (ordered published 30 June 2009)

In June 2001 the defendant, Luu, pleaded no contest to a felony charge of issuing a worthless check; the court placed him on probation for three years with payment of restitution as a condition of probation. Because Luu had not satisfied the restitution requirement, the court extended his probation three times, ultimately continuing his probation until Feb. 1, 2007. On Dec. 20, 2006, the Department of Corrections (DOC) initiated proceedings to revoke Luu’s probation. A sentence of 18 months’ imprisonment was imposed following revocation of probation. Luu’s postconviction motions for relief from the revocation and sentence were denied. In a decision authored by Judge Dykman, the court of appeals affirmed.

Luu first argued that Wis. Stat. section 973.09(2) prohibited the court from extending his probation beyond the maximum term of imprisonment he faced for the crime he committed, in this case five years. Because the court had extended his probation beyond five years before the DOC initiated revocation proceedings, Luu argued that the revocation was invalid. The appellate court disagreed. While the cited statute does indeed limit the length of an original term of probation for a single felony to “not less than one year nor more than either the maximum term of confinement in prison for the crime or 3 years, whichever is greater,” section 973.09(3)(a) permits a court, for cause and by order, to extend probation for a stated period. The latter provision “does not purport to place any limits on the length of time that probation may be extended” (¶ 15).

Luu alternatively argued that if section 973.09 allows a trial court to extend a defendant’s probation beyond the original term of imprisonment he or she faced, the statute is unconstitutional because it violates due process guarantees by failing to provide sufficient notice of the possible consequences of criminal conduct (see ¶ 6). Again, the court of appeals disagreed. “We conclude that the plain language of the statute provides a defendant sufficient notice that he or she will be subject to an original term of probation up to the length of imprisonment he or she faced for the crime committed, and that his or her probation may then be extended ‘for cause’” (¶ 15).

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Evidence

State v. Denton, 2009 WI App 78 (filed 13 May 2009) (ordered published 30 June 2009)

Denton and an accomplice were charged with attempting to kidnap a woman who was running along a road. The woman fled from her attackers when a passerby stopped to protect her. At trial the victim and several witnesses described the assault. The state also introduced testimony of a police officer, who had prepared a computer-generated exhibit (CGE) that depicted the state’s version of the offense. The CGE was an animated recreation of the crime based on the officer’s review of police reports and interviews with witnesses. At trial the officer played different versions of the animation that reflected different viewing angles. The CGE was offered solely as demonstrative evidence that illustrated the witness’s testimony (see ¶ 8). The jury convicted the defendants. 

The court of appeals reversed in an opinion written by Judge Neubauer. The defense had no notice of the CGE and was unfairly surprised. The court distinguished the animation in this case from one used in a medical malpractice case, which was supported by expert testimony (see ¶ 15). In this case the animation purportedly depicted the “memories” of three of the state’s key witnesses (see ¶ 16). Put differently, it was a “compilation” of their testimony, although none of the state’s witnesses testified that the CGE “fairly and accurately” depicted their memories (¶ 18). Moreover, the officer who prepared it had no personal knowledge of the crime, which meant that he could not be a lay witness nor was he qualified as an expert witness.

The court explained that “a party may use computer-generated animations to clarify a witness’s testimony” (¶ 19). Nonetheless, “[d]emonstrative computer-generated animation should be introduced in conjunction with the witness’s testimony it seeks to clarify – just as any diagram or photo intended to clarify a lay witness’s testimony would be introduced” (¶ 20).

“Because Ambach [the officer] was neither expert nor lay witness, and the video animation was not testified to as being either a fair and accurate representation or illustrative of any one witness’s testimony, it had little probative value as a demonstrative exhibit, presented a very real danger of confusing and misleading the jury, and was unduly prejudicial to the defendants. Far from being an exhibit which merely illustrated a lay witness’s testimony or an expert’s opinion, this exhibit was nothing more than a collage of information – bits and pieces from each of the State’s witnesses [that,] when[] mixed together, effectively represented the police officer’s own version of what occurred at the time and place in question. But the animator was not an eyewitness to the crime. His assessment about how the crime actually unfolded was just that, his collage, his assessment. By bringing this nonevidentiary perspective of the evidence to life by means of the computer-generated animation, and advising the jury that this was a representation of what happened, the jury was invited to view the collage as fact. A pasting of differing and sometimes conflicting facts from a mixture of witnesses, in an order that made most sense to the State, thus became the final, conclusive historical factual presentation of the crime. This is why it was unduly prejudicial. The animation superceded the sifting and winnowing that a jury normally does when fact witnesses describe the same event in varying and sometimes contradictory ways” (¶¶ 21-22). Finally, the error was not harmless and necessitated a new trial.

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Insurance

Estate of Jones v. Smith, 2009 WI App 88 (filed 27 May 2009) (ordered published 30 June 2009)

Two-year-old Asia Jones died of hyperthermia when she was left strapped into her seat in a day-care center’s van. The driver had forgotten about her, and although the day-care center’s workers noted Asia’s absence, no one looked for her until Asia’s mother arrived later that afternoon. Asia’s estate sued the day-care center, which carried a commercial automobile policy and a commercial general liability (CGL) policy. The parties settled for the auto policy limits based on the driver’s negligence. As to the CGL policy, the circuit court granted summary judgment in favor of the insurer because the policy excluded acts arising out of the use of an automobile.

The court of appeals reversed in an opinion authored by Judge Brennan. “The issue in this case is whether the independent concurrent cause rule applies under the facts and circumstances of this case.... The independent concurrent cause rule operates to extend coverage ‘to a loss caused by the insured risk even though the excluded risk is a contributory cause, [w]here a policy expressly insures against loss caused by one risk but excludes loss caused by another risk’” (¶ 5). “The case before us presents two separate assertions of negligence: (1) Turkvan’s [the driver’s] negligence for failing to remove Asia from the van (the excluded risk), and (2) the negligence of the staff at the Day Care Center for not looking for Asia or inquiring as to why she was not present on a day she was expected (the covered risk). Turkvan’s negligence, although it preceded the negligence of the staff, did not contribute to the staff’s alleged negligence. Their duty was separate and independent of Turkvan’s actions. The staff has a duty to make sure that all the children who are expected to be at the Day Care Center on any given day are accounted for regardless of how they arrive at the center. Thus, the staff’s alleged negligence does not require the use of an automobile to be actionable.... Accordingly, we conclude that this case requires the application of the independent concurrent cause rule, and thus, the complaint asserts a covered risk under Capitol’s CGL policy” (¶ 9). The court stressed that the covered risk need only be a “potential cause of the injury” (¶ 10).

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Landlord-Tenant

Maryland Arms Ltd. P’ship v. Connell, 2009 WI App 87 (filed 19 May 2009) (ordered published 30 June 2009)

The defendant tenant rented an apartment from the plaintiff. The unit suffered $8,000 worth of damage as a result of a fire caused by a defective hair dryer. The parties agreed that the tenant was not negligent, and that she did not improperly use the premises. The question before the court was who is responsible for damage caused by a fire started in a tenant’s apartment if the fire was not the result of negligence or improper use of the premises by either the landlord or the tenant.

The circuit court granted summary judgment in favor of the landlord. In so holding the court accepted a clause in the lease as determinative of the landlord’s claim. Although the lease initially limits the tenant’s responsibility to damages caused by negligence or improper use of the premises, the next sentence of the lease then expands the lessee’s liability to include “all damage in any way caused by the acts of Lessee” (¶ 5).

In a majority decision authored by Judge Curley, the court of appeals reversed the circuit court. It concluded that “the lease provision relied upon by the trial court is void. Wisconsin Stat. § 704.07 [which regulates the duties of a landlord and tenant with respect to damages] provides for tenant liability only where the tenant is negligent or improperly uses the premises; [the lessee in this case] was neither negligent nor did she improperly use the premises. Finally, the clear intent of the statute is to have the landlord shoulder the responsibility for fire repairs when there is no tenant negligence or improper use of the premises” (¶ 14). Accordingly, the appellate court held that the landlord was responsible for the fire damage that was caused by the tenant’s hair dryer (see ¶ 10).

Judge Fine filed a dissenting opinion in which he contended that “neither the law nor reason” permits the result reached by the majority (¶ 16).

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Mental Commitments

Dane County v. Stevenson L. J., 2009 WI App 84 (filed 21 May 2009) (ordered published 30 June 2009)

Stevenson L.J. (SLJ) was detained at Mendota Mental Health Institute based on an emergency detention filed by law enforcement officers. A probable cause hearing was not conducted within 72 hours of SLJ’s arrival at the facility, as required by Wis. Stat. section 51.20(7)(a). The circuit court ruled that SLJ’s continued detention after 72 hours was without legal authority.

The court of appeals affirmed in a decision written by Judge Bridge. “The County does not dispute that the Brown County Circuit Court lost competency to proceed with the probable cause hearing when it failed to conduct the hearing on the initial October 6 statement of emergency detention within seventy-two hours as required by Wis. Stat. § 51.20(7)(a). The dispute centers instead on whether, in spite of noncompliance with the statutory time limit with respect to his initial detention, [SLJ] was lawfully detained by virtue of the statement of emergency detention subsequently filed by the treatment director, and whether the Dane County Circuit Court therefore had competency to proceed with a probable cause hearing on the allegations contained in that statement” (¶ 7). The court held that section 51.15(10) is not ambiguous and “cannot reasonably be construed to authorize the continued detention of an individual who was not given a probable cause hearing within the statutorily required time” (¶ 12). Thus, the “treatment director’s statement of emergency detention was a nullity” (id.). The second statement also ran afoul of prior case law (see¶ 13).

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Real Property

Spanbauer v. Wisconsin Dep’t of Transp., 2009 WI App 83 (filed 27 May 2009) (ordered published 30 June 2009)

This is an eminent domain action. Among the issues before the court of appeals was whether Wisconsin’s project influence rule creates “an exclusionary rule the court must apply when the sale of a comparable property … is within the footprint of a planned project, where the sale of the comparable property occurred after the project plans were known to the public or to the purchaser” (¶ 1). The circuit court answered this question in the negative. In a decision authored by Judge Anderson, the court of appeals affirmed.

The project influence rule is codified as Wis. Stat. section 32.09(5)(b). This statute provides that “[a]ny increase or decrease in the fair market value of real property prior to the date of evaluation caused by the public improvement for which such property is acquired, or by the likelihood that the property would be acquired for such improvement, other than that due to physical deterioration within the reasonable control of the owner, may not be taken into account in determining the just compensation for the property.” 

The Department of Transportation (DOT) urged the court to adopt a bright-line rule that “where there exists evidence of comparable sales not impacted by a public improvement project, any sale alleged to be comparable that was purchased after the project plans were known, and which is located in whole or in part within the project footprint must be excluded as a matter of law” (¶ 30).

The appellate court declined to adopt the bright-line exclusionary rule proposed by the DOT (see id.). It further concluded that it was not an erroneous exercise of discretion for the circuit court to admit evidence of a comparable sale within the footprint of a planned project when the facts were disputed as to whether there was project influence on that comparable sale, even though the sale occurred after the project plans were known (see ¶ 20). Said the court of appeals, “under the laws of Wisconsin, when there is factual dispute regarding whether project influence existed, it was the proper exercise of discretion to admit the evidence of comparable sales for the jury to consider, and pursuant to a jury instruction to follow the project influence rule” (¶ 28).

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Torts

Snyder v. Waukesha Mem’l Hosp., 2009 WI App 86 (filed 27 May 2009) (ordered published 30 June 2009)

A woman (W) received inpatient treatment in the hospital’s psychiatric unit. When she returned from a five-hour unsupervised pass, the staff failed to search her and thus did not find the gun she had brought with her. The next day she shot herself to death with the handgun in the psychiatric unit. W’s husband (Snyder) filed a declaratory judgment action, in which he alleged that W’s death was subject to the wrongful death statute, Wis. Stat. section 895.04, and not the medical malpractice regulations, Wis. Stat. chapter 655. The circuit court agreed with Snyder that negligence here related to W’s custodial care, not to the provision of health-care services.

The court of appeals affirmed in an opinion written by Judge Neubauer. The court relied on several cases that addressed when, and what type of, expert testimony is required in actions involving health-care services. In this case, “Snyder’s claim of negligence is based solely on the failure of the hospital to adequately search [W] pursuant to hospital procedure. The hospital staff’s search was not the result of special orders involving [W] nor did it involve the exercise of professional medical judgment. Rather, plaintiff alleges the search of a patient entering an inpatient facility was to be conducted as a matter of providing routine care to all of the patients. There was nothing particular about [W] or the medical care provided to her that would have changed the application of that custodial duty. The alleged routine patient search ... was a matter of routine care. While the decision to place [W] on the unit involved medical decisions made in the course of rendering professional medical care, the search itself, upon which the plaintiff’s claim is solely based, was a matter of custodial care. As with searches at airports and courthouses, the alleged routine search is not a medical act – it is not a health care service, nor does it involve the exercise of professional medical judgment” (¶ 19).

Tatera v. FMC Corp., 2009 WI App 80 (filed 12 May 2009) (ordered published 30 June 2009)

Tatera died of malignant mesothelioma. His widow sued FMC, which provided brake linings that Tatera ground into shape as part of his job working with friction brake materials. She also sued various brake lining manufacturers that had sold the part to FMC (which did not manufacture the linings). The linings contained asbestos, which Tatera’s widow alleged caused her husband’s cancer. The circuit court granted summary judgment in favor of FMC, dismissing strict liability and negligence claims.

The court of appeals affirmed in part and reversed in part in an opinion written by Judge Brennan. Noting the “unique facts” of this case, the court affirmed the dismissal of the strict liability claim against FMC. The claim “involve[d] a product provided to the employee of a subcontractor for further processing before reaching the ultimate consumer. More particularly, the issues here are whether, FMC was a ‘seller,’ Walter Tatera was a ‘consumer’ and brake linings were ‘products,’ within the meaning of [Restatement (Second) of Torts] § 402A. No Wisconsin case answers these questions” (¶ 7). “Neither the language of § 402A, nor the case law supports a determination that a provider of friction brake linings is a ‘seller’ under § 402A” (¶ 21).

Tatera also did not fit the definition of a “user or consumer,” which “excludes the person who processes a product for someone other than the ultimate consumer” (¶ 23). And the friction brake linings themselves were not “products” within the meaning of § 402A, which is inapplicable to “a product in the middle of processing, such as the brake linings here” (¶ 26). Finally, public policy did not support the application of section 402A to the brake linings.

The court reversed the grant of summary judgment as to the negligence claim. First, FMC was a supplier within the meaning of section 388 of the Restatement (Second) of Torts. “Here, FMC provided friction brake linings to B&M for grinding. Although FMC did not manufacture the friction brake linings, it is uncontroverted that they supplied them to B&M, intending that B&M would work on them. Nothing in [section 388] itself or Wisconsin case law limits the applicability of the rule only to those who manufacture the property” (¶ 37).

Second, the record supported Tatera’s prima facie claim. Third, the exceptions set forth in Wagner v. Continental Casualty Co., 143 Wis. 2d 379, 421 N.W.2d 835 (1988), were inapplicable. “In Tatera’s situation, the negligent act was an affirmative act. The act was supplying the asbestos-containing brake linings to B&M’s employees for grinding. It was FMC’s affirmative act of providing the materials to B&M, and intending that the employees would grind them down to the correct shapes and sizes. The type of act here is factually distinguishable from the act in Wagner,” an omission to investigate a contractor’s experience (¶ 51).

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Worker’s Compensation

McRae v. Porta Painting Inc., 2009 WI App 89 (filed 20 May 2009) (ordered published 30 June 2009)

The plaintiff, McRae, was a union painter employed by Porta Painting, a company with headquarters in Waukesha at the time of the accident. McRae normally drove from his personal residence in Twin Lakes directly to a particular job location he was assigned to for that day; however, on occasion, he would stop by the Waukesha headquarters to pick up supplies on his way to a job site. McRae drove his personal car and did not receive any reimbursement for travel unless the job site was outside a five-county area. McRae’s paid time began when he arrived at an assigned job site.

On Jan. 7, 2005, McRae was driving his personal vehicle from his home to a job site in Milwaukee when he was involved in an accident with another vehicle and suffered serious injuries. As a result of the accident, McRae was off work for a substantial period of time and sustained a permanent disability because of injuries to his left hip and ankle, dental injuries, and a possible permanent disability because of a head injury.

McRae brought a claim for worker’s compensation benefits under Wis. Stat. chapter 102 alleging that, at the time of injury, he was performing services growing out of and incidental to his employment under section 102.03(1) and that he was a traveling employee as defined by section 102.03(1)(f). An administrative law judge (ALJ) determined that McRae was injured while performing services growing out of or incidental to his employment and was entitled to benefits. The Labor and Industry Review Commission (LIRC) reversed the ALJ’s determination, explaining that when McRae was injured, he was not performing service growing out of and incidental to his employment with the employer. McRae requested judicial review, and the circuit court affirmed LIRC’s decision.

In an opinion authored by Judge Neubauer, the court of appeals affirmed the circuit court. Applying a great weight deference standard of review (see ¶ 7), the appellate court concluded that LIRC made a reasonable determination that McRae’s injuries occurred in the course of his normal commute to work and thus were not compensable under section 102.03(1) (see ¶ 21). “It is well established that the typical employee going to or from work is not covered [under this statute] until he or she reaches the employer’s premises. An employee going to work is ordinarily in the prosecution of his or her own business, not performing services incidental to employment. Exceptions to this ‘coming and going’ rule include circumstances where the employer provides the transportation as part of the employment or pays for the expenses related to the employee’s travel and that travel constitutes a ‘substantial part of the employment’” (¶ 9) (internal quotes and citations omitted).

In this case McRae’s employer did not provide his transportation, was not reimbursing him for the use of his personal vehicle, and was not compensating him for travel time. There were no facts to establish that the employment relationship continued while McRae was traveling to and from work. His regular schedule required him to work at a job site and his workday began when he arrived at that job site (see
¶ 13). The appellate court thus concluded that “there is nothing to distinguish McRae’s regular commute to work from that of employees who leave their home to travel to their place of employment where the workday begins – whether it be the employer headquarters or a job site” (¶ 15).

The court further concluded that McRae was not a traveling employee under section 102.03(1)(f). This statute “was enacted by the legislature with the intention of providing broader protection to employees injured on business trips, and establishes a rebuttable presumption that an employee traveling on business is performing services arising out of and incidental to his or her employment at all times until he or she returns” (¶ 16). The defendant argued that the travel contemplated by this statute must be something more and something different than a daily commute to or from work from an established job site (see ¶ 17). The court of appeals agreed: “McRae’s injury occurred during the course of his normal commute, prior to the beginning of his work. That he was expected to present himself to a job site to begin work for his employer does not transform McRae’s daily commute to work into a business trip involving required travel. As with most employees, having a job may have ‘required’ McRae to commute, but the commute prior to his workday was not part of his job”(¶ 19).  

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