the facts are undisputed that the site of the injury occurred on the o s f st francis campus cindy was working at the time that the incident occurred she was on the clock so to speak she was actually on a paid permissive break that  employees were allowed to take during the course of their employment there each allowed to fifteen minute breaks during the course of the workday and this is one of the breaks that cindy was a lot of during her work day and she was working as a lab technician in the outpatient services  the time that she decided to take this break so how is she in the course of room one smoking in violation of the employer's express policy and how was she in the course of her employment when she's at that point  that's kind of the crux of why we're here today we honestly feel that the the act of going out and taking the brakes does not necessarily take her out of the course of her employment yes there is this smoking policy that went into place that says as an s f employee you are not allowed to smoke on the o s f campus and what was the common custom and practice of the us employees after this policy went into place was to walk right across the street where they're no longer on the o s f campus take their smoke break if that's what they decided to do it's confusing the geography here because the jason to the campus is a sidewalk or is it not which is there's a sidewalk on both sides of the street is still o s f campus southside of berkeley is public domain not owned by a self and this is where the employees would cross over to berkeley to the non o s f campus side and basically line a sidewalk campus and so what employees do to get around that policy is wrong across the street and it was a well known practice that went on immediately after this post smoking policy went into effect you never said no i'm doing that by all those employees who did it they were router in your smoking or no i said campus or no exit at the campus to smoke i mean technically but the respondents position is if you are on a break and you go out your car to retrieve a cell phone but technically you've building there's obviously issues in the record of whether she has the intent to go smoke or not but the fact is that she wasn't smoking at the time that this this injury occurred she had just accident the doors within a few seconds of this injury occurr and i think that the the intent to violate a policy whether in fact you know the the arbitrator has decided that her coworkers testimony was more credible than cindy relatives testimony on what her intent was right i agree i mean if you're a if you're an employee and you're writing for cliff and you're thinking well you know what i'm going to i'm going to speed through the wear alse and then you decide not to do that have you buy a late at the warehouse as you know policies regarding the operation of a forklift if you didn't really do what it was that you were specially intending to do but it's even more complicated than that because i suppose the argument your poem is going to make and has some appeal is what in the course of her employment or the personal comfort doctrine allows an employee to do the types of incidental things such as smoking having won the battle in the restroom taking a work break getting a glass of water all those things which well because you're in violation of the policy clearly that's unexpected and reasonable i think you know he's raising you so how do you respond to them in this particular case i think that the result is serious certainly reasonable and foreseeable based on the course of conduct that o s f employees including city relic are taking in leaving the o s f campus its council's going to get up there he's going to say well this policy was only in effect for two weeks there's no way was it could have known that their employees were doing  they were doing it every single day that this policy had been and not so i have a question does  would not have necessarily exit out of the course of her business or out of the course of her employment with there's no restriction on paid very close to where she goes is there i  believe the policy dictates that if she leaves to smoke she's violence let's drop the smoking is there any restriction number she goes during a paid break on the campus prove that you're on a lot of made break you're not on some frolic then you're still i think within the course of the moment and you would still be your or you would be arising out of an incidental act your employer you're on a break otherwise you have a an absurd situation where a person ok i'm going to go use the restroom i slip and fall in the restroom and you know break my neck well you know using the restroom is not you know one of your job duties and therefore you're not going to be entitled to any recovery because that is  causally connected to the workers in work how was it here well she's a lab tech she's on the clock at o s f she's taking a break and she slips and falls and injured herself during that break i mean the area where the city is working where she exits isn't it relevant to this of course it is it's it's on the  theory was that violating this smoking well actually let me back up a little bit the theory was that the intent to violate the policy is what took her out of the course of her employment because the injury had actually occurred on the property before she had even by late at the policy and so they've taken it a step further in that the here the intent to do something that may violate the policy i mean in this case it certainly it would have violated the policy process the intent to do that is what took her out of the case so if you change the facts on you we've got berkeley you have in the room we've got a sidewalk across berkeley which she's not supposed to be on but that's a violation the one that's on the campus correct ok so she's injured they're all smoking you wouldn't be here there's no question that's outside of the course of her employment but if she's on the sidewalk jason south or north of berkeley that's adjacent to the campus and she's smoking a cigarette and she's in here you wouldn't be here either i don't think so no i think so you're saying i'm here only because when she left the door and went thirty feet and fell in the parking lot he judge i also think if she was standing on the sidewalk on the o s f side of berkeley and just standing there not smoking on her break i think i'd still be here arguing that your honor as if it please the court money was too new on the attorney for the respondent also seen francis medical center and as we've already talked about here this morning important thing is july fourth two thousand seven hundred clients are assessing francis medical center instituted this no smocking policy which was called the tobacco free environment policy and this policy specifically prohibit employees from smoking on paid breaks there it's the key we have to focus keep get off on this side thing or was she on the property or not on the property that's not the policy she don't smoke on paid breaks the next thing we know is that on july twenty fifth two thousand and seven cindy its these important findings employees were not allowed to smoke at any time or place during paid critics not allowed to smoke at any time or place three pay breaks and not allowed to smoke on sidewalks adjacent the property commission also found as arbitrator neil had that the petitioner was aware of this possible bass in the record as well and the commission also found that when they were on paid break in the process a leaving the property to go smoke on the berkeley sidewalk what she's assuming a personal risk slip solely for her own convenience when she said that i can live she stopped doing anything in furtherance of the employer's business she's not doing any work she went out there with her coworker because she wanted to go course of your one that was ok but i'll just say it's a in other words she was doing exactly what any other employee here plane would have done when she fell yes great she's attending to small she's intending to do whatever violation we didn't have time to develop some sort of policy of we're looking at it and then it trial be the employee argued but they were never reprimanded nobody fact they were two weeks after the incident the manager brought her in the office and kosher the first level of discipline to see francis as far as you should be smoking on a break you know that yeah ok well don't do it anymore ok so the idea that all self was going along with all this is just not accurate and i did want to say one more time and i think we've got a question here it's really important to focus in on the credibility of witnesses because i know you said that you didn't believe that was important the the arbitrator found that the coworker said yes we intended to small yes we intended this to sort of summarize your position i think you would have to say they had because she tended to violate the clear policy of the company you believe that even though it happened before she started smoking she was not in the course of because she left to intend to violate policy that's sort of what you're saying yes ok and that's a fair we understand your position and then i guess what you're saying is there's a difference between intending to violate the policy of actually performer any work duties when she's standing out there in the parking lot she's not opposed to any risk different than the general public ok with anything and number two is you know it but for her it in the process of buying in the process of buying a policy she never would have been in intention to violate the rule as taking her out of the forcible limit even before the violence there the possibility you can't go outside it says you can't be outside to smoke and so she had she could have changed her mind