Bartlett v. Duke University

• Decision Date: 14 November 1973
• Docket Number: No. 8,8
• Court: North Carolina Supreme Court
• Parties: (Mrs.) Evelyn BARTLETT, Widow of Robert B. Bartlett, Deceased, Employee-Plaintiff, v. DUKE UNIVERSITY, Employer, and Glens Falls Insurance Company, Carrier, Defendants.

Page 193

200 S.E.2d 193

284 N.C. 230

(Mrs.) Evelyn BARTLETT, Widow of Robert B. Bartlett Deceased, Employee-Plaintiff, v. DUKE UNIVERSITY, Employer, and Glens Falls Insurance Company, Carrier, Defendants.

No. 8.

Supreme Court of North Carolina.

Nov. 14, 1973.

F. Gordon Battle, Theodore H. Jabbs, James B. Maxwell, and Bryant, Lipton, Bryant & Battle, Chapel Hill, for plaintiff-appellee.

Newsom, Graham, Strayhorn, Hedrick, Murray & Bryson by Josiah S. Murray, III, Durham, for defendant-appellant.

SHARP, Justice:

Under the Workmen's Compensation Act plaintiff's right to recover compensation for the death of her husband depends upon whether it resulted from an 'accident arising out of and in the course of his employment' by Duke University. G.S. § 97--2(6). As used in the Act the phrase, 'in the course of the employment,' refers to the time, place, and circumstances under which an accidental injury occurs; 'arising out of the employment' refers to the origin or cause of the accidental injury. The two phrases involve two ideas and impose two conditions, both of which must be met to sustain an award. Sweatt v. Board of Education, 237 N.C. 653, 75 S.E.2d 738 (1953).

Conceding Arguendo that, from the time of his arrival in Washington on the morning of 12 March 1970 up to and including the time he accidently aspirated the kebab while dining at a restaurant that evening, Bartlett was in the course of his employment, the determinative question is whether a causal relation existed between his choking on the meat and his employment.

As we noted in Robbins v. Nicholson, 281 N.C. 234, 238--239, 188 S.E.2d 350, 354 (1972), 'The term 'arising out of the employment' is not susceptible of any all-inclusive definition, but it is generally said that an injury arises out of the employment 'when it is a natural and probable consequence or incident of the employment and a natural result of one of its risks, so there is some causal relation between the injury and the performance of some service of the employment."

To have its origin in the employment an injury must come from a risk which might have been contemplated by a reasonable person familiar with the whole situation as incidental to the service when he entered the employment. The test 'excludes an injury which cannot fairly be traced to the employment as a contributing proximate cause and which comes from a hazard to which the workmen would have been equally exposed apart from the employment. The causative danger must be peculiar to the work and not common to the neighborhood. It must be incidental to the character of the business and not independent of the relation of master and servant. It need not have been foreseen or expected, but after the event it must appear to have had its origin in a risk connected with the employment, and to have flowed from that source as a rational consequence.' In re Employer's Liability Assurance Corporation, 215 Mass. 497, 499, 102 N.E. 697 (1913) (quoted with approval in Harden v. Furniture Co., 199 N.C. 733, 735, 155 S.E. 728, 729--730 (1930), and Robbins v. Nicholson, Supra at 239 of 281 N.C., 188 S.E.2d 350, and in accord with other cases cited therein). See Cole v. Guilford County, 259 N.C. 724, 131 S.E.2d 308 (1963).

Applying the foregoing test to the facts of this case, we hold that there was no causal relation between Bartlett's employment and his aspiration of the kebab. His day's work over and, business engagements scheduled for the morrow, he was having a leisurely evening meal at a public restaurant with an old friend, whom the to Washington had enabled him to visit. In this relaxed situation he put 'a very large piece of meat' in his mouth. His friend 'was of the opinion that it was too large, that he should have cut it in half but he consumed it anyway and immediately after he began to choke.'

The risk that Commander Bartlett might choke on a piece of meat while dining at the Orleans House was the same risk to which he would have been exposed had he been eating at home or at any other public restaurant in the Washington area. Whether employed or unemployed, at home or traveling on business, one must eat to live. In short, eating is not peculiar to traveling; it is a necessary part of daily living, and one's manner of eating, as well as his choice of food, is a highly personal matter.

The National Safety Council of America estimates that 2,500 Americans choke to death on food each year, making food inhalation the sixth leading cause of accidental death. Understandably, however, few cases are reported in which claimants have sought compensation for the death of an employee, traveling on business for his employer, who choked to death while eating in a restaurant away from home. One such case, however, is Klein v. Terra Chemicals International, Inc., 14 Md.App 172, 286 A.2d 568 (1972). In denying the widow's claim for workmen's compensation benefits, the Court of Special Appeals of Maryland said:

'That Klein choked on a piece of meat at a public restaurant while in the course of his employment with Terra Chemicals was not, in our...