Osteen v. Greenville County School Dist., No. 24843.

• Court: United States State Supreme Court of South Carolina
• Writing for the Court: WALLER, Justice
• Citation: 333 S.C. 43,508 S.E.2d 21
• Parties: Linda F. OSTEEN, Respondent, v. GREENVILLE COUNTY SCHOOL DISTRICT, Employer and Self-Insurer, Petitioner.
• Decision Date: 26 October 1998
• Docket Number: No. 24843.

333 S.C. 43
508 S.E.2d 21

Linda F. OSTEEN, Respondent,
v.
GREENVILLE COUNTY SCHOOL DISTRICT, Employer and Self-Insurer, Petitioner

No. 24843.

Supreme Court of South Carolina.

Heard November 19, 1997.

Decided October 26, 1998.

Rehearing Denied December 2, 1998.

333 S.C. 45

Richard V. Davis, of Christian & Davis, of Greenville, and J. Mark Hayes II, of Harrison and Hayes, of Spartanburg, for respondent

Richard B. Kale, Jr., and Jeffrey S. Jones, both of Haynsworth, Marion, McKay & Guerard, of Greenville, for petitioner.

ON WRIT OF CERTIORARI TO THE COURT OF APPEALS

WALLER, Justice:

We granted certiorari to review the Court of Appeals' opinion in Osteen v. Greenville County School District, 323 S.C. 432, 475 S.E.2d 775 (Ct.App.1996). We reverse.

FACTS

Linda Osteen ("Osteen") was an attendance clerk at Mountain View Elementary School. She worked Monday through Friday, 8:00 a.m. to 4:00 p.m. Her duties included responsibility for attendance; helping out in the office; running errands to classrooms; assisting in the health room; checking in and retrieving supplies; and delivering mail to the teachers' lounge and the cafeteria.

In the middle of August 1992, Osteen planned a week-end picnic with her family at Lake Keowee. On Friday, August 21, 1992, Osteen brought an ice chest with her to work which she intended to fill with ice from the school cafeteria for use at her picnic. At approximately 3:00 p.m., Osteen, accompanied by her son, retrieved the ice chest from her car and took it to

333 S.C. 46

the school cafeteria. After filling the cooler with ice, she and her son carried it back to her car. When Osteen picked up the chest to put it into her car, she injured her back.¹

Thereafter, Osteen filed a workers' compensation claim. The Single Commissioner found Osteen had sustained a compensable injury under S.C.Code Ann. § 42-1-160 (1985). The Full Commission reversed, finding Osteen's injury did not arise out of and in the course of her employment. The Circuit Court affirmed the Panel's finding that Osteen's injury was not compensable. A majority of the Court of Appeals reversed; it held Osteen's injury was by accident arising out of and in the course of her employment.

ISSUES

Did the Court of Appeals err in holding Osteen's injury was by accident arising out of and in the course of her employment?

DISCUSSION

The Court of Appeals held Osteen's injury fell squarely within the "personal comfort" doctrine. This was error.

The personal comfort doctrine aids a court in determining whether, and under what circumstances, entirely personal activities engaged in by an employee at work may be considered incidental to employment. See Mack v. Post Exchange, 207 S.C. 258, 35 S.E.2d 838 (1945); Arthur Larson, The Law of Workmen's Compensation, § 21.00 et seq. (1996). In Mack v. Post Exchange, we adopted the personal comfort doctrine by stating:

Such acts as are necessary to the life, comfort, and convenience of the servant while at work, though strictly personal to himself, and not acts of service, are incidental to the service, and injury sustained in the performance thereof is deemed to have arisen out of the employment. A

333 S.C. 47

man must breathe and occasionally drink water while at work. In these and other conceivable instances he ministers unto himself, but in a remote sense these acts contribute to the furtherance of his work.... That such acts will be done in the course of employment is necessarily contemplated, and they are inevitable incidents. Such dangers as attend them, therefore, are incident dangers. At the same time injuries occasioned by them are accidents resulting from the employment.

Mack, 207 S.C. at 264-65, 35 S.E.2d at 840 (emphasis supplied). In Mack, the employee arrived on work premises approximately one-half hour before work began. While waiting, he smoked a cigarette and accidentally burned his leg when the cigarette ignited his trousers. In finding his injuries compensable under the Workers' Compensation Law, we held that smoking was incidental to his employment: "Tobacco is universally recognized to be a solace to him who uses it, and may be that such a one, unless he finally shakes off the habit, cannot perform the labors of his life as well without it as with it." Id. at 265, 35 S.E.2d at 841.

In McCoy v. Easley Cotton Mills, 218 S.C. 350, 62 S.E.2d 772 (1950), we again addressed the question of whether an employee's injury occurring during a smoking break was compensable. We stated that it was "well settled that an employee, in order to be entitled to compensation, need not necessarily be engaged in the actual performance of work at the time of injury; it is enough if he is upon his employer's premises, occupying himself consistently with his contract of hire in some manner pertaining to or incidental to his employment." Id. at 355-56, 62 S.E.2d at 774; see also Beam v. State Workmen's Compensation Fund. 261 S.C. 327, 200 S.E.2d 83 (1973). In McCoy, the employee, while on his break, was accidentally struck in the eye by a copper pipe thrown by another employee. We again concluded that smoking was incidental to the worker's employment, and therefore, the injury occurring during such break was compensable.

However, the personal comfort doctrine has consistently been limited to imperative acts such as eating, drinking, smoking, seeking relief from discomfort,² preparing to begin

333 S.C. 48

or quit work, and resting or sleeping. See Larson, §§ 21.00-21.714. In this case, the Court of Appeals cited numerous cases from other jurisdictions to support its holding that Osteen's activity came within the personal comfort doctrine. Osteen, 323 S.C. at 437-38 nn. 1-7, 475 S.E.2d at 778-79 nn. 1-7. However, all of the cited cases fit into one of the limited categories listed above.³ This case, on the other hand, does not fit into any of these categories: Osteen was not smoking, resting, sleeping, eating, drinking, seeking relief from discomfort, or preparing to begin or quit work when she was injured. Thus, we find Osteen's activity was not a "natural incident" of her employment. As stated by Judge Huff in his dissent, "[o]btaining ice for a family picnic the following day was not `necessary to the life, comfort, and convenience' of [Osteen] while she was at work." Osteen, 323 S.C. at 445, 475 S.E.2d at 782. Accordingly, we find the Court of Appeals erred in applying the personal comfort doctrine to the circumstances of this case

Further, the Court of Appeals cited Cauley v. Ross Builders Supplies, Inc., 238 S.C. 38, 118 S.E.2d 879 (1961) to hold that "even if the activity was entirely personal to [Osteen], her injury is compensable because the deviation from her employment was insubstantial." Osteen, 323 S.C. at 440, 475 S.E.2d at 780. We find Cauley inapposite to this case.

In Cauley, this Court adopted Professor Larson's view that there are circumstances when injuries arising out of acts outside the scope of an employee's regular duties may be compensable. These circumstances have been applied to: (1) acts benefiting co-employees; (2) acts benefiting customers or

333 S.C. 49

strangers; (3) acts benefiting claimant;⁴ and (4) acts benefiting employer privately. Larson, §§ 27.00-27.48. In Cauley, we adopted Larson's rule for injuries occurring while assisting co-employees: "[An employee's] injury was ... not compensable unless the deviation from the course of employment was so trivial that it could be fairly characterized as insubstantial." Cauley, 238 S.C. at 40, 118 S.E.2d at 880; Larson § 27.15, at 5-376. In Cauley, the employee was injured while trimming a piece of board to make a wedge for a fellow employee. We found the employee's activity was an insubstantial deviation from his work as a carpenter, and thus, the injury arising therefrom was compensable under the Workers' Compensation Law

Unlike Osteen, the employee in Cauley was trained as a carpenter, and the injury occurred during an activity which was incidental to his normal employment. In fact, Cauley was in the process of fashioning a block of wood pursuant to his job assignment when he took a moment to make from it a wedge for his co-employee. We agree with Judge Huff's dissent that Cauley is simply inapposite here.

Finally we find no basis on which to hold Osteen's injury occurred "by accident arising out of and in the course of her employment."

The South Carolina Workers' Compensation Act requires that, to be compensable, an injury by accident must be one "arising out of and in the course of employment." S.C.Code Ann. § 42-1-160 (1985). The two parts of the phrase "arising out of and in the course of employment" are not synonymous. Both parts must exist simultaneously before any court will allow recovery. Hicks v. Piedmont Cold Storage...