Maxwell v. Hospital Authority of Dade, Walker & Catoosa Counties

• Decision Date: 23 October 1991
• Docket Number: No. A91A1028,A91A1028
• Court: Georgia Court of Appeals
• Parties: MAXWELL et al. v. HOSPITAL AUTHORITY OF DADE, WALKER & CATOOSA COUNTIES.

Page 205

413 S.E.2d 205

202 Ga.App. 92

MAXWELL et al. v. HOSPITAL AUTHORITY OF DADE, WALKER & CATOOSA COUNTIES.

No. A91A1028.

Court of Appeals of Georgia.

Decided Oct. 23, 1991.

Reconsideration Denied Nov. 27, 1991.

Certiorari Denied Jan. 10, 1992.

Mitchell, Coppedge, Wester, Bisson & Miller, Warren N. Coppedge, Jr., E. Neil Wester, Dalton, for appellants.

Shaw, Maddox, Graham, Monk & Harris, C. Wade Monk, Virginia B. Harman, Rome, Watson & Dana, Dennis D. Watson, Lafayette, for appellee.

POPE, Judge.

Plaintiff/appellant Rita Maxwell was employed by defendant/appellee the Hospital Authority of Dade, Walker and Catoosa Counties, d/b/a Hutcheson Medical Center/Tri-County Hospital, as a patient representative. Plaintiff and her husband brought suit against the hospital contending it was negligent in failing to provide adequate security after plaintiff was robbed, raped and beaten in the employee parking lot. Plaintiffs appeal from the trial court's order denying summary judgment to plaintiffs and granting summary judgment to defendant on the basis that plaintiffs' tort action was barred by the exclusive remedy provisions of the Workers' Compensation Act.

The essential facts in this case are not in dispute. Mrs. Maxwell worked at the hospital two days a week from 9:30 a.m. to 6:00 p.m. and two days a week from 6:00 p.m. to 2:30 a.m. The days Mrs. Maxwell worked varied from week to week and her work schedule was posted six weeks in advance in the nurses' lounge. Only employees of the hospital and Mrs. Maxwell's immediate family were familiar with her schedule. The incident giving rise to plaintiffs' lawsuit occurred on May 6, 1990, as Mrs. Maxwell was leaving work after her shift ended at 2:30 a.m. The record shows Mrs. Maxwell was the only employee of approximately 100 on duty at that time whose shift ended at 2:30 a.m. and that she walked to her car alone. Mrs. Maxwell testified that although she was the only employee whose shift ended at that time she had been instructed by her supervisor not to request a security guard to accompany her to her car. Mrs. Maxwell estimated over 100 cars were in the parking lot at the time she was attacked. She stated that she had just laid her jacket on the hood of her car when someone came up behind her and put a rope over her neck. Mrs. Maxwell testified in her deposition that she was unaware of anyone else being in the parking lot until she felt the rope go around her neck, but she believed, because of the configuration of the other cars in the parking lot, that her assailant was hiding behind her car prior to the attack. The record also shows that at the time of the attack Mrs. Maxwell was not wearing certain jewelry which she customarily wore to work and that her assailant questioned her concerning the whereabouts of this jewelry. Likewise, Mrs. Maxwell testified she usually wore pants to work but at the time of the attack she had on a dress and her assailant remarked to her before he raped her that it was a "good thing" that she wore a dress "this time" instead of pants. Mrs. Maxwell stated she thought her assailant was alone until someone hollered at one point during the attack for him to hurry up because someone was coming. Mrs. Maxwell could not identify the assailant and neither he nor the "look-out" was ever apprehended.

Plaintiffs contend the trial court erred in granting defendant's motion for summary judgment on the basis that their tort claim against defendant was barred by the exclusive remedy provisions of the Workers' Compensation Act and in failing to find the assault upon Mrs. Maxwell was personal and therefore excluded from workers' compensation coverage. OCGA § 34-9-11 provides, in pertinent part, that "[t]he rights and the remedies granted to an employee by this chapter shall exclude all other rights and remedies of such employee, ... at common law or otherwise, on account of ... injury...." Injury is defined in OCGA § 34-9-1(4) as "injury by accident arising out of and in the course of the employment ..." but the definition does "not include injury caused by the willful act of a third person directed against an employee for reasons personal to such employee...." "Whether the [attack] resulting in [Mrs. Maxwell's] injuries occurred for 'reasons personal to' her, thereby excluding those injuries from workers' compensation coverage, depends upon whether the injuries arose out of and in the course of [Mrs. Maxwell's] employment with [defendant]. Murphy v. ARA Svcs., 164 Ga.App. 859, 861 (298 SE2d 528) (1982)." City of Atlanta v. Shaw, 179 Ga.App. 148, 149, 345 S.E.2d 642 (1986). Plaintiffs concede that Mrs. Maxwell's injuries arose "in the course of her employment." However, as they correctly assert, "an injury which does not 'arise out of' the employment is not covered by the Act, even where the injury may have occurred 'in the course of' the employment. 'Injury' as defined in OCGA § 34-9-1(4) 'means only injury by accident arising out of and in the course of employment.' (Emphasis supplied.) It has long been established that both '(a)rising out of and in the course of the employment must occur before the work(ers') compensation act can apply to an injury to an employee. (Cit.)' Lumbermen's Mut. Cas. Co. v. Babb, 67 Ga.App. 161, 164 (19 SE2d 550) (1942)." Garrett v. K-Mart Corp., 197 Ga.App. 374, 375, 398 S.E.2d 302 (1990). See also City of...