Officer’s Off-Duty Drowning Held Job-Related

Officer Kevin Schultz worked for the Pueblo of Pojoaque Tribal Police Department in New Mexico. One day, Officer Schultz was off duty and voluntarily chaperoning a church youth group trip to a recreational area on the Rio Grande near Pilar, New Mexico. There were four adult chaperones on the trip, including Officer Schultz and his wife, Cheryl. Officer Schultz was not on call that day, nor was he in uniform, although he was carrying his badge and department-issued pager and firearm.

While the group was at the river, Officer Schultz rescued a child who was under his supervision. In the process, Officer Schultz drowned.

Officer Schultz’s sacrifice was honored at both the national and local levels. Officer Schultz is recognized on the National Law Enforcement Officers Memorial and the State of New Mexico Law Enforcement Memorial, both of which require for inclusion a finding that the officer died in the line of duty. Cheryl and the couple’s son were also awarded survivor benefits under the Public Safety Officers Benefits Act. The lieutenant governor of the Pueblo of Pojoaque sent Cheryl a letter recognizing that “your husband, Kevin Schultz, died in the line of duty and that the Pueblo of Pojoaque will do anything necessary for you to receive survivor’s benefits, workers’ compensation or any other benefits available to you and your grieving family.”

Nonetheless, the Pueblo’s workers’ compensation carrier denied Cheryl’s request for survivor benefits, taking the position that Officer Schultz did not die in the line of duty. In an exhaustive opinion, the New Mexico Court of Appeals then overturned the carrier’s denial, and ordered the payment of benefits.

The Court acknowledged that “given the unique nature of law enforcement duties, including the fact that in some circumstances an off-duty police officer may be required to respond in an official capacity to incidents arising in the officer’s presence, courts have struggled with determining the compensability of off-duty police officer injuries using traditional interpretations of the arising out of and in the course of employment test.

“A distinctive body of workers’ compensation law has arisen surrounding injuries to off-duty police officers. This is because police officers fulfill a unique role in society that coincides with increased responsibilities and a greater sense of duty to their employment than the average citizen. This sense of duty can arise both from official dictates of police officer conduct or from societal expectations that the amount of authority with which we imbue police officers corresponds to our reliance that they at all times effectively fulfill their mission to protect and serve the public. The ultimate determination in most cases is typically rooted in statutes or police department regulations compelling or authorizing the off-duty action, or, at the least, an implicit expectation that police officers will take some action not required of the general public when emergencies arise.

“What we gather from cases from other jurisdictions is an implicit recognition that the traditional interpretations of the arising out of and in the course of employment standard are inadequate benchmarks for determining whether an injured off-duty police officer is entitled to compensation. Given the unique nature of law enforcement duties and the various circumstances calling for the exercise of those duties, strict application of the ‘time, place, and circumstances’ factors or attempts to delineate what risks off-duty police officers are likely to face incidental to their employment strains the function these factors have served in our workers’ compensation law in other contexts.

“Therefore, we believe that when determining a police officer’s eligibility for injuries sustained in circumstances not traditionally arising from or in the course of predictable employment activities, the proper focus should be on the circumstances giving rise to the accident, specifically the nature of the officer’s actions and the manner of his performance in relation to a similarly situated on-duty officer. That is not to say that some inquiry into the time and place of the accident is irrelevant. But given that the issue before us concerns an off-duty police officer, the time factor is of little analytic value insofar as this factor relates to injuries occurring on duty, where we have already concluded that police officers are entitled to recovery for off-duty injuries in some circumstances.

“Turning to the circumstances surrounding Officer Schultz’s death, we conclude that there was a sufficient nexus between the incident – the rescue undertaken by Officer Schultz – and his duties as a public safety officer to support an award of compensation. The ‘arising out of’ prong is satisfied here by the critical nature of the incident. The extent of a police officer’s duty to protect and serve the public is not limited to crime prevention. Rendering assistance to a child in danger of drowning is among those risks to which common sense dictates that an on-duty officer faced with a similar circumstance would be expected to respond. Furthermore, we note that Officer Schultz was not prohibited by employer regulations from undertaking the rescue in his official capacity. No one can seriously dispute that the circumstances giving rise to Officer Schultz’s death required immediate action.

“There may be some circumstances in which a police officer’s response to an emergency would be so incongruent with the expected response of a similarly situated on-duty officer as to remove the officer’s actions from his or her course of employment. But Officer Schultz’s response does not fall into that category.”

Schultz v. Pojoaque Tribal Police Department, 2013 WL 4499132 (N.M. App. 2013).