Macy's South, Inc. v. Clark, s. A94A1616
| Decision Date | 02 December 1994 |
| Docket Number | Nos. A94A1616,A94A1617,s. A94A1616 |
| Citation | 215 Ga.App. 661,452 S.E.2d 530 |
| Parties | MACY'S SOUTH, INC. v. CLARK. CLARK v. MATADOR SECURITY CONSULTANTS & DETECTIVE AGENCY, INC. et al. |
| Court | Georgia Court of Appeals |
Long, Weinberg, Ansley & Wheeler, Alan L. Newman, Carol P. Michel, Atlanta, for Macy's South Foy R. Devine, Atlanta, for Clark.
McKenzie, Martin, Taylor & McConnaughey, Michael A. McKenzie, Cozen & O'Connor, Timothy A. Bumann, Atlanta, for Matador Security Consultants.
Plaintiff Jean Susan Clark and defendant Macy's South, Inc. (Macys) both appeal from the trial court's denial of their cross-motions for partial summary judgment. The sole issue on appeal is whether the exclusivity provision in the Georgia Workers' Compensation Act (OCGA § 34-9-1 et seq.) acts as a bar to plaintiff's recovery against Macys in this tort action.
Plaintiff worked as an assistant buyer for Macys in its downtown Atlanta store. It is undisputed that at all times relevant to this case, Macys owned and maintained a parking garage ("Garage") that was directly across the street from the downtown store. The Garage was operated for the convenience of Macys' employees and its customers. It also was open to the public. The record shows that, at least in part, security for the Garage was provided by defendant Matador Security Consultants & Detective Agency, Inc. (Matador). Although everyone using the Garage was charged a fee, Macys' employees were given the option of parking in the Garage at a substantially discounted rate, and in fact this is what plaintiff chose to do.
The record shows that as an assistant buyer, plaintiff was a managerial, salaried employee. Although she had no specific working hours, plaintiff normally worked from 9:00 a.m. to 6:00 p.m. each day. It is undisputed that on April 12, 1988, although not required to do so, plaintiff worked past her normal hours so that she could get ahead on some paperwork. Plaintiff's deposition testimony shows that on this date she in fact worked until approximately 7:45 p.m. and the record further shows that plaintiff signed out of the store at 7:50 p.m. It is undisputed that upon leaving the store, plaintiff went directly to her car, which was parked on the fifth floor of the Garage. When she reached her car a man was sitting in the front seat. The man told her he was with security and that her car had been broken into but he had scared the thieves away. It is undisputed that this man subsequently took plaintiff by force to the top floor of the Garage and assaulted and raped her.
On April 11, 1990, plaintiff filed an amended complaint wherein she alleged that Macys and Matador negligently failed to provide reasonable and adequate security on the date in question, in violation of their duty to plaintiff to exercise ordinary care in maintaining the Garage in a reasonably safe condition. Macys and Matador answered separately denying liability. On April 15, 1993, plaintiff filed a motion for partial summary judgment as to the issue of the applicability of the workers' compensation bar to her lawsuit. On May 28, 1993, Macys filed its response to plaintiff's motion as well as its own motion for partial summary judgment, arguing that plaintiff's claim against Macys was barred by the exclusivity provision of the Georgia Workers' Compensation Act. On July 1, 1993, Matador filed a memorandum of law in support of plaintiff's motion for summary judgment regarding the workers' compensation issue. The trial court, by order dated December 2, 1993, denied both cross-motions for partial summary judgment. Both Macys and plaintiff appeal the trial court's decision, Macys' appeal being docketed in this court as Case No. A94A1616, and plaintiff's appeal being docketed as A94A1617.
and A94A1617
In order to determine whether plaintiff's claim against Macys is barred by the exclusivity provision of the Workers' Compensation Act, we must first determine whether plaintiff's injuries are covered by the Act. In making this determination we must consider whether the injuries plaintiff complains of arose out of and in the course of her employment with Macys. See Maxwell v. Hosp. Auth. of Dade, Walker etc. Counties, 202 Ga.App. 92, 93-94, 413 S.E.2d 205 (1991); see Garrett v. K-Mart Corp., 197 Ga.App. 374, 375, 398 S.E.2d 302 (1990).
1. (Citations and punctuation omitted.) Maxwell, 202 Ga.App. at 94, 413 S.E.2d 205.
When we apply the test set forth above to the facts of this case, we conclude that plaintiff's injuries arose out of her employment with Macys. It is undisputed that plaintiff's employment required her to work in a downtown metropolitan area. It also is undisputed that on the date plaintiff was attacked, the reason she was leaving work as night fell was because she had chosen to stay late and get ahead on some paperwork. Although plaintiff was not required to work late, she did in fact do so. Therefore, we reject her contention that the time she spent from 6:00 p.m. to approximately 7:45 p.m. was time spent outside the scope of her employment. See McElreath v. McElreath, 155 Ga.App. 826, 828, 273 S.E.2d 205 (1980). This is especially true in light of the fact that plaintiff was a junior executive and a salaried employee. Moreover, the record shows that it was not unusual for assistant buyers, such as plaintiff, to leave the store as late as...
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