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Pierre, SD 57501


TARYL J. ROHLCK,
Claimant and Appellant,
v.
J & L RAINBOW, INC.,

d/b/a Rainbow Bar and Lime Lite Casino,
Employer and Appellee,
and National Surety Corporation,
Insurer and Appellee.

South Dakota Supreme Court
Appeal from the Sixth Judicial Circuit, Hughes County, SD
Hon. Steven L. Zinter, Judge
#19438 -- Affirmed

Thomas W. Parliman, Parliman & Parliman, Sioux Falls, SD
Attorney for Claimant and Appellant.

Comet H. Haraldson, Kristine L. Kreiter
Woods, Fuller, Shultz & Smith, Sioux Falls, SD
Attorneys for Appellees.

Considered on Briefs May 22, 1996; Opinion Filed Sep 4, 1996

McKEEVER, Circuit Judge
[¶1] Claimant appeals the circuit court's judgment denying workers' compensation benefits. We affirm.

FACTS AND PROCEDURAL HISTORY
[¶2] Taryl Rohlck (Claimant) was employed by the Lime Lite Casino (Casino) as an occasional security person. He began this employment in January of 1991. Claimant's responsibilities included checking patrons' identifications and escorting unruly patrons from the bar. He normally worked a five-hour shift on Fridays and Saturdays. While employed at the Casino, Claimant was under the supervision of manager Chonette Banks (Banks).
[¶3] On the night of August 29, 1991, and into the morning hours of August 30, 1991, Banks was managing the Casino and serving as bartender. One other person, a waitress, was working with Banks. Because it was a week night, there was no security person on duty.
[¶4] That night, Claimant and a group of friends gathered at the Casino around 10:00 p.m. Claimant and his friends frequented several bars in the downtown Sioux Falls area and then returned to the Casino just prior to closing. Claimant acknowledged consuming five or six beers and one half of a specialty drink during the course of the night.
[¶5] After Claimant and his friends returned to the Casino, a last call for alcohol was given by Banks. Mikel Thompson (Thompson), a patron in the bar, argued with Banks about the availability of another drink. Thompson referred to Banks as a "prejudice white bitch" and used other derogatory language when Banks denied him a drink. Banks asked Thompson to leave the bar and not return and informed him she was calling the police. Claimant witnessed this exchange and claims he heard a female ask, "Somebody want to give me a hand here? " Banks denied making any statement requesting assistance. Claimant approached Thompson and told him to leave. He put Thompson's arm behind his back and escorted him to the door. Once outside, Thompson and Claimant exchanged kicks. Claimant then reentered the bar and Thompson left the vicinity. Prior to escorting Thompson from the bar that night, Claimant was unacquainted with Thompson and had no dealings with him in his capacity as a security person for the Casino.
[¶6] Following the altercation, Claimant made plans to go for breakfast. He declined a ride to a local restaurant from Banks, choosing instead to give a friend a ride on his motorcycle. En route to the restaurant, a station wagon driven by Thompson approached Claimant's motorcycle from the rear. Thompson bumped the motorcycle with the station wagon several times. The third bump was at a high rate of speed and caused Claimant's motorcycle to become caught in the grill of the station wagon. The station wagon pushed Claimant's motorcycle down the roadway until it collided with a construction sign, knocking Claimant and his passenger to the ground. Claimant sustained a concussion and multiple lacerations. He was hospitalized for five days. At the time of hospitalization, his blood alcohol level was 0.132 per cent.
[¶7] On August 27, 1993, Claimant filed a petition for hearing seeking workers' compensation benefits for the injuries sustained in the August 30, 1991 incident. On January 6, 1995, the Department of Labor (Department) entered an order denying him workers' compensation benefits after determining his injuries did not arise out of and in the course of his employment with Casino. Claimant appealed Department's denial of benefits to the circuit court which affirmed Department's denial of workers' compensation benefits but remanded the case to Department for further findings and conclusions on the applicability of the emergency doctrine. On remand, Department issued a supplemental order finding the emergency doctrine inapplicable to Claimant's situation and denying workers' compensation benefits. On appeal the circuit court affirmed Department's supplemental order in all respects. Claimant appeals.

STANDARD OF REVIEW
[¶8] Our standard of review of administrative agency decisions is governed by SDCL 1-26-37. This statute provides:
An aggrieved party or the agency may obtain a review of any final judgment of the circuit
court under this chapter by appeal to the Supreme Court. The appeal shall be taken as in other
civil cases. The Supreme Court shall give the same deference to the findings of fact,
conclusions of law and final judgment of the circuit court as it does to other appeals from the
circuit court. Such appeal may not be considered de novo.
However, when the issue is a question of law the agency's decision is fully reviewable. Helms
v.
Lynn's, Inc., 1996 SD 8, ¶ 9, 542 NW2d 764, 766; Petersen v. Hinky Dinky, 515 NW2d 226, 231 (SD 1994); Caldwell v. John Morrell & Co., 489 NW2d 353, 357 (SD 1992); Egemo

v.
Flores, 470 NW2d 817, 820 (SD 1991). Great weight is given to findings made and inferences drawn by the agency concerning questions of fact. Spitzack v. Berg Corp., 532 NW2d 72, 75 (SD 1995). We do not substitute our judgment for that of [Department] on the weight of the evidence[.] In other words, even if there is evidence in the record which tends to contradict the Department's factual determination, so long as there is some "substantial evidence" in the record which supports the Department's determination, this court will affirm it.


Shepherd v. Moorman Mfg., 467 NW2d 916, 919 (SD 1991) (citations omitted). In reviewing an agency's determination, "the issue we must determine is whether the record contains substantial evidence to support the agency's determination." Helms, 1996 SD 8, ¶ 10, 542 NW2d at 766 (citations omitted).

ANALYSIS AND DECISION

[¶9] Before recovery of workers' compensation benefits is allowed, an employer/employee relationship
must exist. See Goodman v. Sioux Steel Co., 475 NW2d 563, 564 (SD 1991). An employer/employee relationship may arise either by express or implied contract. SDCL 62-1-3; Schumacher v. Schumacher, 288 NW 796, 797 (SD 1939). The express or implied contract of employment defines the course of the employer/employee relationship. Actions or activities performed by an employee beyond the course of the express or implied contract of employment do not create an obligation on the part of the employer to compensate the employee for injuries which may result. "Services voluntarily and gratuitously performed create no liability." Schumacher, 288 NW at 797. Such services are outside the course of an employee's employment.
[¶10] Department found on the night in question that Claimant entered the Casino as a patron.{fn1} He proceeded to consume alcohol and socialize with friends, "bar-hop" to other bars and returned to Casino to drink and socialize. Department concluded he was not scheduled to work that evening, nor was he at Casino to perform the duties of a security person. Department determined Claimant's consumption of alcohol, his departure from Casino to frequent other establishments, and his socializing with other patrons while at Casino were acts inconsistent with those normally undertaken by or expected of a security person on duty. Based on Claimant's actions that night and the fact he was not scheduled to work, Department concluded that he was not in the course of his employment the night of August 29, 1991, into the morning hours of August 30, 1991, because Claimant's actions were outside his course of employment with Casino. Department's findings are supported by substantial record evidence.
[¶11] While Claimant was not in the course of his employment on the night in question, under the express circumstances of his employer/employee relationship with Casino, Claimant contends the course of his employment was impliedly extended because his actions in escorting Thompson from the bar that night were in response to a good faith belief an emergency situation existed. Claimant also contends the retaliatory actions of Thompson were incidental to his employment as a security person at Casino, thus extending the course of his employment under Bearshield v. City of Gregory, 278 NW2d 166 (SD 1979).
[¶12] 1. Emergency Doctrine
[¶13] The emergency doctrine extends the scope of an employee's employment beyond the normal working hours and/or normal work-related tasks when an employee is confronted with an emergency that threatens the employer's property. 1A Larson, Larson's Workmen's Compensation 28.11, at 5-441 (1995). See also Martinez v. Workers' Compensation Appeals Bd., 544 P2d 1350, 1352 (Cal. 1976). {fn2} We have previously adopted the emergency doctrine in South Dakota. Johnson v. Chicago & N.W. Ry. Co., 7 NW2d 145, 148 (SD 1942).{fn3}  The emergency doctrine provides, "[a]n employee does not go outside of the course of his employment, if, when confronted with a sudden emergency, he steps beyond his ordinary duties to protect his employer's property." Id. (citations omitted). The doctrine impliedly extends an employee's course of employment to include those tasks necessary to protect the employer's property and employees and extends compensation to injuries incurred while performing such tasks. Id.; 1A Larson, Workmen's Compensation Law 28.11, at 5-446 to 5-447.
[¶14] However, for the emergency doctrine to apply, "there must be a true emergency as distinguished from a mere benefit to the employer through assistance to someone in trouble." 1A Larson, Workmen's Compensation Law 28.13, at 5-451. Additionally, an emergency does not exist if the actor chooses a non

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