Dildy v. MBW Investments, Inc.

• Citation: 566 S.E.2d 759,152 NC App. 65
• Decision Date: 06 August 2002
• Docket Number: No. COA01-510.,COA01-510.
• Court: Court of Appeal of North Carolina (US)
• Parties: Janice F. DILDY, Employee, Plaintiff, v. MBW INVESTMENTS, INC., Employer, Zenith Insurance Company, Carrier, Defendants.

566 S.E.2d 759

152 NC App. 65

Janice F. DILDY, Employee, Plaintiff, v. MBW INVESTMENTS, INC., Employer, Zenith Insurance Company, Carrier, Defendants.

No. COA01-510.

Court of Appeals of North Carolina.

August 6, 2002.

Ralph G. Willey, P.A., by Ralph G. Willey, III, Rocky Mount, for plaintiff-appellant.

Morris York Williams Surles & Barringer, LLP, by C. Michelle Sain, Charlotte, for defendant-appellees.

CAMPBELL, Judge.

Janice Dildy ("plaintiff") appeals from an opinion and award of the North Carolina Industrial Commission ("the Commission") denying her claim for disability benefits under the Workers' Compensation Act ("the Act") for injuries she received at her place of employment when she was shot by her former boyfriend. We affirm.

In June 1996, plaintiff was employed as a cashier at an Amoco gas station and convenience store in Wilson, North Carolina, owned by MBW Investments, Inc. ("defendant-employer"). Plaintiff was responsible for operating the store's cash register, which primarily involved ringing up sales of gasoline and merchandise. The store also had a food counter which was generally manned by a different employee than the one operating the main customer counter and register.

Prior to her employment with defendantemployer, plaintiff had lived with her boyfriend, Vernon Farmer ("Farmer"). Due to the abusive nature of their relationship, plaintiff left Farmer in late 1995. Following the couple's separation, Farmer began threatening plaintiff. In March 1996, plaintiff was seen by a psychiatrist and a therapist for depression and anxiety caused by her fear of being attacked by Farmer. Plaintiff was advised to call the police and initiate legal action. Plaintiff subsequently obtained a restraining order against Farmer, but he continued to harass and threaten her. In early May 1996, plaintiff was voluntarily admitted to the psychiatric unit of a local hospital as a result of the anxiety caused by her fear of Farmer. Finally, on 18 June 1996, plaintiff reported to her psychiatrist that Farmer had blown up her current boyfriend's truck. Plaintiff's psychiatrist recommended that she consider relocating.

Despite the violent nature of their relationship and the fact that Farmer continued to threaten and harass her, plaintiff did not tell her co-workers or supervisors about her relationship with Farmer.

On 21 June 1996, Farmer came into the convenience store while plaintiff was working. Plaintiff was unaware of his presence in the store until he placed a six-pack of beer on the counter. After paying for the beer, Farmer forcefully threw the six-pack at plaintiff, hitting her in the chest. Farmer then left the store. Plaintiff, frightened by Farmer's attack, began repeatedly exclaiming that Farmer was going to come back to the store to kill her. Plaintiff asked Ronnie Braziel ("Braziel"), the store supervisor on duty at the time, to call the police. Braziel told plaintiff to put the beer back in the beer cooler and to continue waiting on customers. As plaintiff continued working, she repeatedly asked Braziel to call the police because she was scared that Farmer would come back to the store to kill her. Braziel told plaintiff that Farmer would not be back and refused to honor plaintiff's requests to call the police.

Several minutes later, Farmer telephoned the store and plaintiff answered. Farmer threatened to come back to the store to kill plaintiff if she hung up the phone. Plaintiff reported this threat to Braziel while she was still on the phone with Farmer. Plaintiff asked Braziel to call the police or allow her to leave the store. Braziel refused plaintiff's request and told her to hang up the phone and resume waiting on customers. Approximately twenty minutes after he had first entered the store, Farmer returned with a handgun. Farmer walked up to the counter and shot at plaintiff three times, hitting her once in the right hand and once in the leg. Farmer later pled guilty to assault with a deadly weapon inflicting serious injury.

Plaintiff filed a claim for workers' compensation benefits for the injuries she received as a result of the shooting. Plaintiff's claim was denied by defendants. Prior to hearing, the parties stipulated that the provisions of the Act controlled the action, that an employer-employee relationship existed between plaintiff and defendant-employer, that defendant insurance company was the carrier, and that plaintiff had started missing time from work due to an injury sustained on or about 21 June 1996.

Plaintiff's claim was heard by a Deputy Commissioner on 10 August 1999. On 12 May 2000, the Deputy Commissioner entered an opinion and award denying plaintiff's claim. The Deputy Commissioner found that Farmer's assault on plaintiff was entirely personal to her and had nothing to do with her employment. However, the Deputy Commissioner did find that the employment contributed to the assault on plaintiff to some degree in that plaintiff's supervisor, knowing of the threats being made by Farmer, instructed plaintiff to continue working and did not call the police, thereby failing to take an opportunity to reduce the risk. Nonetheless, the Deputy Commissioner concluded that the risk of assault was not attributable to the employment and that plaintiff's injuries did not arise out of her employment.

Upon appeal by plaintiff, the Full Industrial Commission upheld the denial of benefits to plaintiff. Commissioner Christopher Scott filed a dissenting opinion expressing his belief that the failure of plaintiff's supervisor to call the police directly increased the already known risk of assault facing plaintiff. Plaintiff appeals, arguing that the Commission erred in concluding that the shooting did not arise out of her employment. Defendants cross-assigned error to certain findings of fact made by the Commission. Due to our resolution of plaintiff's contentions on appeal, we need not consider defendants' cross-assignments of error.

In order to be compensable under the Act, an injury must result from an accident arising out of and in the course of employment. N.C. Gen.Stat. § 97-2(6) (2001); Hemric v. Manufacturing Co., 54 N.C.App. 314, 316, 283 S.E.2d 436, 438 (1981). In reviewing an opinion and award of the Industrial Commission, this Court's review is limited to a determination of whether the Commission's findings of fact are supported by any competent evidence and whether the Commission's conclusions of law are supported by such findings of fact. Bailey v. Sears Roebuck & Co., 131 N.C.App. 649, 652, 508 S.E.2d 831, 834 (1998). However, the determination of whether an accident arises out of and in the course of employment is a mixed question of law and fact, and this Court may review the record to determine whether the findings and conclusions are supported by sufficient evidence. Gallimore v. Marilyn's Shoes, 292 N.C. 399, 402, 233 S.E.2d 529, 531 (1977).

Within the meaning of the Act, an accident is an unlooked for and untoward event which is not expected or designed by the employee and which interrupts the employee's normal work routine and introduces unusual conditions likely to result in unexpected consequences. Hensley v. Cooperative, 246 N.C. 274, 278, 98 S.E.2d 289, 292 (1957). An assault may be an accident within the meaning of the Act when it is unexpected and without design on the part of the employee who suffers from it. Gallimore, 292 N.C. at 402, 233 S.E.2d at 531; see also Robbins v. Nicholson, 281 N.C. 234, 188 S.E.2d 350 (1972)

. The phrase "in the course of the employment" refers to the time, place and circumstances under which an accidental injury occurs. Robbins, 281 N.C. at 238,

188 S.E.2d at 353. In the instant case, plaintiff was shot, without design on her part, during working hours while performing her duties as an employee on the premises of the employer. Thus, plaintiff's injuries were the result of an injury by accident occurring during the course of employment. Accordingly, the only issue presented by this appeal is whether the shooting that injured plaintiff arose out of her employment with defendantemployer.

The phrase "arising out of the employment" refers to the origin or causal connection of the accidental injury to the employment. See, e.g., Watkins v. City of Wilmington, 290 N.C. 276, 225 S.E.2d 577 (1976)

. "[T]he controlling test of whether an injury `arises out of' the employment is whether the injury is a natural and probable consequence of the nature of the employment." Gallimore, 292 N.C. at 404,

233 S.E.2d at 532-33. An injury "arises out of the employment" if a contributing proximate cause of the injury is a risk to which the employee was exposed because of the nature of the employment, and to which the employee would not have been equally exposed apart from the employment. Roberts v. Burlington Industries, 321 N.C. 350, 358, 364 S.E.2d 417, 423 (1988). "This risk must be such that it `might have been contemplated by a reasonable person familiar with the whole situation as incidental to the service when he entered the employment.'" Gallimore, 292 N.C. at 404,

233 S.E.2d at 533 (quoting Bartlett v. Duke University, 284 N.C. 230, 233, 200 S.E.2d 193, 195 (1973)). "[The] causative danger must be peculiar to the work and not common to the neighborhood." Id. (quoting Harden v. Furniture Co., 199 N.C. 733, 735, 155 S.E. 728, 730 (1930)). This test has been referred to as the "increased risk" analysis, and focuses on whether the nature of the employment creates or increases a risk to which the employee is exposed. Roberts, 321 N.C. at 358,

364 S.E.2d at 422. This "increased risk" analysis is different from the "positional risk" doctrine, "which holds that `[a]n injury arises out of the employment if it would not have occurred but for the fact that the conditions and obligations of employment placed claimant in the position where he was killed.'" Id. (quoting 1 A. Larson, The Law of Workmen's Compensation § 6.50 (1984)). Our Supreme...