Gibberd by Gibberd v. Control Data Corp.

• Decision Date: 20 May 1988
• Docket Number: No. C2-87-1481,C2-87-1481
• Citation: 424 N.W.2d 776
• Parties: Raymond P. GIBBERD (Deceased), by Elizabeth C. GIBBERD, Respondent, v. CONTROL DATA CORPORATION, Self-Insured, Relator.
• Court: Minnesota Supreme Court

Page 776

424 N.W.2d 776

Raymond P. GIBBERD (Deceased), by Elizabeth C. GIBBERD Respondent, v. CONTROL DATA CORPORATION, Self-Insured, Relator.

No. C2-87-1481.

Supreme Court of Minnesota.

May 20, 1988.

Syllabus by the Court

Under the workers' compensation law an employer was not liable to dependents of employee who died from injuries sustained following a random street assault which occurred away from the employer's premises at a time the employee was on a lunch break, and which did not arise out of and in the course of the employment.

Richard Riemer and Jeff M. Zalasky, Minneapolis, for relator.

Mary J. Bjorkland, Bloomington, for respondent.

Heard, considered and decided by the court en banc.

KELLEY, Justice.

The ultimate issue for resolution in this case is whether the dependents of an employee, a victim of a random street killing, are entitled to recover workers' compensation benefits from his employer when the victim was killed while away from the employer's premises during his meal break. A compensation judge held that they were not. The workers' compensation court of appeals (WCCA) reversed, and awarded dependency and funeral benefits. We reverse and reinstate the decision of the compensation judge.

Basically, the facts leading up to the killing are undisputed. At approximately 8:30 on the evening of August 26, 1985, Raymond P. Gibberd, an employee of appellant Control Data Corporation (CDC), was shot and killed during the course of an apparent random street assault while walking along a public street some distance from CDC's facility located at 304-306 Dale Street in St. Paul. When assaulted, Gibberd was walking toward the CDC facility. Evidence indicated he had left his work station and checked out of the CDC facility a short time before--apparently on a meal break. No reason has been established for the killing. No personal connection between Gibberd and his assailant has ever been established. There was no evidence that the motive for the killing was robbery. No evidence exists that the assault arose out of anything having to do with Gibberd's employment at CDC. Rather, the police authorities, who conducted an extensive investigation of the incident, have concluded that Gibberd was a victim of a random, senseless, street assault and execution. ¹ Gibberd left surviving him a wife and two minor daughters. They filed a claim for dependency and funeral benefits under the Workers' Compensation Act. CDC, in its answer to the claim, denied that Gibberd's death arose out of and in the course of his employment, and further denied that he was on the employer's premises at the time he was fatally shot.

The CDC facility in St. Paul, where Gibberd worked, is known as a World Distribution Center. It is located immediately south of U.S. Interstate 94. At the facility, CDC employs approximately 400 people on the day shift, 20 people on the second shift, and 5 people on the third shift. CDC located the World Distribution Center at its current location as part of a corporate policy favoring building of work facilities in so-called "depressed" inner-city areas. This policy coincides with widely publicized and generally known efforts of St. Paul municipal authorities to address social and economic problems in that same general area by encouraging renovations of commercial and residential buildings located in the area.

The evidence in the case revealed that 12 cities in the United States are roughly comparable in size to the City of St. Paul. Seven of those are considered to have a higher crime rate than does St. Paul. ² In St. Paul the police department has divided the city into 198 "grids." CDC's World Distribution Center is located in "grid 109." In 1985 this "grid" ranked 19th in crime rate in St. Paul. Other "grids" surrounding "grid 109" ranked 5th, 7th, 11th and 30th. In the five years preceding the assault on Gibberd, crime had decreased dramatically in the general area--particularly to the south of the CDC plant. ³ Apparently people have been inquiring about and moving with increasing frequency into the general area. ⁴ Although CDC employees had reported to company officials a number of incidents of minor vandalism, purse thefts, and other thefts from employees during the five years preceding this assault, there had been only two assaults on persons reported. ⁵

CDC provided a cafeteria on its premises for employees. Because most employees worked on the day shift, this cafeteria closed at 3 p.m. Vending machines on the premises provided candy, popcorn, sandwiches, potato chips, etc. A microwave oven was also available for use by employees. CDC had no implied or express policy which required employees to leave the CDC premises to eat out. Management did encourage employees to patronize the cafeteria during the hours it was open, but there existed no policy requiring employees to do so. In fact, CDC management was aware that many employees did take their lunch break away from the premises--particularly at an establishment known as Wendy's Fast Food Restaurant located approximately 7/10th of a mile from the plant.

Gibberd was employed as a computer consultant. He was considered an "exempt" employee. As an "exempt" employee, although his regularly scheduled working hours were 8 a.m. to 5 p.m., he had considerable latitude in setting his own working hours. However, as an exempt employee, any hours worked over 40 hours per week were uncompensated. For some time before and on the day of the assault, Gibberd had been working on a project involving retrieval of information from broken computers. Because demand for computer time was heavy during the regular 8 to 5 shift, when most of the CDC World Distribution Center employees were on duty, during August 1985, while working on this project, Gibberd worked frequently at night and on weekends.

On August 26 at approximately 4:15 p.m. and later about 7:15 p.m., Gibberd informed his family by telephone that he would be working late and not be coming home to eat. In the latter conversation, he mentioned he would shortly go out for a "bite to eat." He actually signed out on CDC's security log at 8:05 p.m. He apparently did not shut down the computer on which he was working because it was found to be running the next morning. Likewise, his briefcase was found open; the lights at his work station were on; and his books and papers were covering his desk.

No CDC employee saw Gibberd after he signed out. However, about one-half hour later, an eyewitness noticed Gibberd walking south on the east side of Dale Street in the direction of and approximately four blocks from the World Distribution Center. Suddenly an unidentified male accosted Gibberd; placed an armlock on his neck; shot him in the head with a pistol; and, after Gibberd was on the ground, shot him a second time in the head.

The time Gibberd signed out from the plant; the state in which he had left his work station; the time the eyewitness observed the assault; plus subsequent autopsy findings revealing partially undigested food estimated to have been ingested within a half hour prior to death; all combined to lead investigating authorities to conclude that he had recently eaten at Wendys.

Findings made by the compensation judge were: (1) No causal connection existed between Gibberd's death and his employment; (2) No personal connection existed between Gibberd and his assailant; (3) Gibberd's death did not occur in, on, or about the premises of CDC; and (4) Gibberd's death did not arise out of and in the course of his employment with CDC. On appeal to the WCCA those "findings" were rejected and in their stead the WCCA entered "findings" diametrically opposite thereto, to-wit: that "as a matter of law" Gibberd's death arose out of his employment; that at the time of his death Gibberd was engaged "in, on, or about the premises where his services required his presence"; that his death was compensable since the assault occurred because of his employment and not for personal reasons; and that "it must be inferred" that Gibberd's employment exposed him to a different and greater hazard of injury from assault than if he had been pursuing ordinary personal affairs.

The appropriate standard of review is of pivotal significance in the resolution of the issues raised by this case since the WCCA essentially rejected the compensation judges' findings and substituted its own. For many years prior to 1983 upon review of referee or compensation judge findings, first the Industrial Commission and later the WCCA could, in essence, ignore those findings and proceed to find the facts anew by giving little or no deference to the findings of the referees or compensation judges--a procedure basically followed by the WCCA in this case. See, e.g., Dotstry v. Radisson Hotel, 266 N.W.2d 716, 717 (Minn.1978); Townsend v. Nelson, 308 Minn. 374, 376, 242 N.W.2d 607, 608-09 (1976). However, as a result of amendments made to Minn.Stat. Sec. 176.421, subd. 1(3) and Minn.Stat. Sec. 176.441, subd. 1, by enactment of 1983 Minnesota Laws, chapter 301, the theretofore essentially unrestrained power of the WCCA to set aside compensation judge findings and orders was considerably circumscribed. Act of June 8, 1983, ch. 301, Secs. 148 and 151, 1983 Minn.Laws 1558, 1668-70. See, e.g., Hengemuhle v. Long Prairie Jaycees, 358 N.W.2d 54, 59-60 (Minn.1984). Thereafter, the former plenary discretion resting in the WCCA upon review to disregard factual findings of a compensation judge was limited in that if "more than one inference may reasonably be drawn from the evidence, the findings of the compensation judge are to be upheld." Id. at 60. In Hengemuhle we further held that the WCCA is not "to substitute its view of the evidence for that adopted by the compensation judge if the compensation judge's findings are supported by evidence that a reasonable mind might accept as adequate." Id. See also Polaschek v. Asbestos Products, Inc., 361 N.W.2d...