Murphy v. ARA Services, Inc., 64293

• Decision Date: 30 November 1982
• Docket Number: No. 64293,64293
• Citation: 298 S.E.2d 528,164 Ga.App. 859
• Parties: , 50 Fair Empl.Prac.Cas. (BNA) 572 MURPHY v. ARA SERVICES, INC.
• Court: Georgia Court of Appeals

Page 528

298 S.E.2d 528

164 Ga.App. 859, 50 Fair Empl.Prac.Cas. (BNA) 572

MURPHY v. ARA SERVICES, INC.

No. 64293.

Court of Appeals of Georgia.

Nov. 30, 1982.

Howard B. Markel, James A. Robbins, Jr., Rome, for appellant.

W. Lyman Dillon, Atlanta, Oscar M. Smith, Rome, for appellee.

POPE, Judge.

For the purpose of this appeal from the grant of defendant-appellee's motion for summary judgment, the following facts are not in dispute:

Appellee ARA Services, Inc. ("ARA") operates a cafeteria at Klopman Mills, providing food services for employees of the mill. Jack Meffert was the supervisor of ARA's business at all times pertinent to the present action and was acting within the scope of his employment with ARA. In January, 1980 appellant Linda Murphy was hired by Meffert for employment in ARA's Klopman Mills cafeteria. Meffert remained appellant's supervisor until she was fired by him in February, 1980. Appellant's duties while in ARA's employ included attending the serving line, making salads, cleaning the premises, and other work generally associated with that of a cafeteria employee. Appellant was one of several female employees who worked in the cafeteria at that time.

On the day that appellant was employed, the supervisor, Meffert, began to sexually molest and abuse her, demanding under threat of firing that she have sexual intercourse with him. Specific descriptions of Meffert's behavior are contained in the complaint, appellant's deposition and affidavit, and other supporting documents. The complained of behavior took place entirely during the hours both Meffert and appellant were on duty.

Prior to appellant's employment ARA had actual knowledge that its supervisor, Meffert, did physically and verbally abuse many of ARA's female employees during working hours at their place of employment. Even though repeated complaints were made to ARA about Meffert's actions, ARA allowed him to remain as supervisor of its women employees in the Klopman Mills cafeteria.

In March, 1981 appellant brought the present suit seeking damages in two counts. Count I alleges assault and battery causing appellant to suffer humiliation, embarrassment, and mental anguish; Count II alleges ARA's negligence in hiring Meffert and in allowing him to remain in a supervisory position after appellant had informed ARA of his conduct toward her. The trial court granted ARA's subsequent motion for summary judgment concluding that the exclusive remedy for appellant's claim is provided under the Georgia Workers' Compensation Act (hereinafter "Act").

Appellant appeals the grant of summary judgment enumerating initially as error the trial court's conclusion that her common law claim for damages is barred by the Act. In support of this broad enumeration, appellant challenges two specific rulings contained in the trial court's order: (1) that her injuries were not the result of a wilful act by a third person for personal reasons; and (2) that her injuries arose out of and in the course of her employment. Reversal of either ruling would remove the present claim for damages from the auspices of the Act.

ARA was during the period of appellant's employment and is now subject to the Act, and the insurance coverage required for compliance with the Act was in force at that time. See Code Title 114 (now OCGA Title 34). Under Code Ann. § 114-103 (now OCGA § 34-9-11): "The rights and the remedies herein granted to an employee shall exclude all other rights and remedies of such employee ... at common law or otherwise, on account of such injury, loss of service or death...." See Nowell v. Stone Mtn. Scenic R., 150 Ga.App. 325, 257 S.E.2d 344 (1979). Therefore, in those instances where an employee's claim against his employer is one which is covered by the Act, his rights are determinable solely under its provisions and any rights or remedies otherwise available to him against the employer are excluded. Appellant's claim must, then, fall within an exception provided either within the Act itself or the body of case law interpreting it.

Contrary to the trial court's order, appellant contends that the misconduct of the supervisor for which she seeks damages is not a compensable "injury" within the meaning of the Act. Code Ann. § 114-102 (now OCGA § 34-9-1(4)) defines "injury" for purposes of the Act as "injury by accident arising out of and in the course of the employment...." Specifically excluded from this definition is "injury caused by the wilful act of a third person directed against an employee for reasons personal to such employee...." Appellant's claim was brought against her corporate employer, ARA, for injuries caused by a third person, her supervisor. Determination of whether the assault occurred due to "reasons personal to" appellant, and, thus, the applicability of the foregoing exclusion to the present factual situation are decided on the basis of whether the injuries alleged by appellant arose out of and in the course of her employment by ARA. See Employers Ins. Co. v. Wright, 108 Ga.App. 380, 133 S.E.2d 39 (1963).

" 'The terms "arising out of" and "in the course of" are not synonymous.' " State Dept. of Labor v. Yates, 131 Ga.App. 71, 72, 205 S.E.2d 36 (1974). "An injury arises in the course of employment, ... when it occurs within the period of the employment, at a place where the employee may be in the performance of his duties, and while he is fulfilling those duties or engaged in doing something incidental thereto." New Amsterdam Cas. Co. v. Sumrell, 30 Ga.App. 682(2), 118 S.E. 786 (1923). This statutory requirement relates to the time, place and circumstances under which the injury takes place. General Fire, etc., Co. v. Bellflower, 123 Ga.App. 864(3), 182 S.E.2d 678 (1971). Appellant admits, and we agree, that her injuries arose in the course of her employment in that each act of the supervisor's misconduct occurred during working hours while she was performing those tasks required by or incidental to her employment.

While an injury arising out of the employment ordinarily arises also in the course of it, the converse is not necessarily true. "It is a settled rule that an injury may arise in the course of the employee's employment and yet not arise out of his employment." United States Fidelity, etc., Co. v. Fried, 64 Ga.App. 186, 187, 12 S.E.2d 406 (1940). However, both conditions must concur before the Workers' Compensation Act can apply. Hughes v. Hartford Accident, etc., Co., 76 Ga.App. 785, 789, 47 S.E.2d 143 (1948). Under the Act "an injury ' "arises out of" the employment, when there is apparent to the rational mind, upon consideration of all the circumstances, a causal connection between the conditions under which the work is required to be performed and the resulting injury. Under this test, if the injury can be seen to have followed as a natural incident of the work, and to have been contemplated by a reasonable person familiar with the whole situation as a result of the exposure occasioned by the nature of the employment, then it arises "out of" the employment. But it excludes an injury which can not fairly be traced to the employment as a contributing proximate cause, and which comes from a hazard to which the...