P.A.M. v. Quad L. Associates

• Decision Date: 24 January 1986
• Docket Number: 84-618,Nos. 84-600,s. 84-600
• Citation: 221 Neb. 642,380 N.W.2d 243
• Parties: P.A.M., Appellant, v. QUAD L. ASSOCIATES, a Limited Partnership, Appellee. S.K., Appellant, v. QUAD L. ASSOCIATES, a Limited Partnership, Appellee.
• Court: Nebraska Supreme Court

Page 243

380 N.W.2d 243

221 Neb. 642

P.A.M., Appellant, v. QUAD L. ASSOCIATES, a Limited Partnership, Appellee.

S.K., Appellant, v. QUAD L. ASSOCIATES, a Limited Partnership, Appellee.

Nos. 84-600, 84-618.

Supreme Court of Nebraska.

Jan. 24, 1986.

Syllabus by the Court

1. Workmen's Compensation. The Workmen's Compensation Act provides the exclusive remedy by the employee against the employer for any injury arising out of and in the course of the employment.

2. Workmen's Compensation. Injuries caused by intentional assaults are compensable if they arise out of, or result from, a risk connected with the employment.

3. Workmen's Compensation. An employee injured on the premises of the employer where he works while coming to work or leaving after work is within the course of his employment under the Nebraska Workmen's Compensation Act.

Frederick S. Cassman of Abrahams, Kaslow & Cassman, Omaha, for appellants.

Richard J. Rensch of Hansen, Engles & Locher, P.C., Omaha, for appellee.

KRIVOSHA, C.J., BOSLAUGH, HASTINGS, CAPORALE, SHANAHAN and GRANT, JJ., and COLWELL, District Judge, Retired.

KRIVOSHA, Chief Justice.

P.A.M. and S.K., former employees of Quad L. Associates (Quad), the owner and operator of a restaurant known as Wendy's Old Fashioned Hamburgers (Wendy's), appeal from judgments entered by the district court for Douglas County, Nebraska, sustaining Quad's motions for summary judgment and dismissing appellants' actions against Quad. Because the injuries arose out of the same incident and involve the same questions of law, the cases were consolidated for argument in this court.

The specific question presented to this court is whether appellants' injuries arose out of and in the course of their employment within the Nebraska Workmen's Compensation Act and that the actions, therefore, were within the exclusive jurisdiction of the Workmen's Compensation Court, or whether the appellants could maintain a common-law action for negligence against their employer. This appears to be a case of first impression in this jurisdiction, in that the injuries sustained by the appellants occurred as a result of their being criminally assaulted while their employer's premises were being robbed. We believe that the district court was correct in finding that the injuries arose out of and in the course of the appellants' employment and that the actions were therefore exclusively within the jurisdiction of the Nebraska Workmen's Compensation Court. For that reason we affirm the judgments of the district court.

The depositions and affidavits of the various witnesses establish that on Friday, October 2, 1981, S.K., who was then 16 years of age and a junior in high school, was employed as a countergirl at a restaurant known as Wendy's Old Fashioned Hamburgers located in Omaha, Nebraska. S.K. had been working on a part-time basis since April of 1981. Although she had not been scheduled to work that evening, she was called to report for work at 6:30 p.m. Since she did not drive an automobile, her mother drove her to the restaurant. Later that evening, S.K. asked her friend and fellow employee, P.A.M., if P.A.M. could give her a ride home. P.A.M. agreed to do so.

Wendy's remained open until midnight, at which time the doors were locked and the exterior sign turned off. Thereafter, S.K. and three other employees performed their cleanup and restocking work, which was completed shortly after 1 a.m., at which time they punched out on the timeclock and the others left. S.K., nevertheless, waited in the building approximately 20 to 25 minutes for P.A.M. to finish her bookwork so she could be driven home.

P.A.M., who was then 19 years of age, had been employed by Wendy's for approximately 3 1/2 years, beginning while she was in high school. She had been designated as one of several "assistant managers" at that location. Normally there were four employees and one manager on duty but that evening the manager was working at another location. After closing, P.A.M. performed her bookwork, made up the deposit, and placed the day's receipts in deposit bags. P.A.M. testified in her deposition that part of her duties included making the bank deposit of the day's receipts. She indicated that she would do this by carrying the locked bank deposit bags to her automobile and driving to a bank approximately two blocks from the restaurant's location. She further testified that she was paid more than the other nonmanagement employees for having the position of assistant manager and that one of the duties as assistant manager was to make the night deposits upon closing.

After finishing her work P.A.M. also clocked out. It was approximately 1:30 a.m. She then shut off all of the lights in the building, turned on the burglar alarm, and she and S.K. left the building and walked to the parking lot adjacent to the restaurant where her automobile was located. P.A.M., at that time, was carrying the deposit bags which she intended to place in the night depository at the bank. As both women were entering P.A.M.'s automobile, which was parked in a portion of the parking lot, two men carrying guns ran over from behind a dumpster and demanded the deposit bags, which P.A.M. turned over to them. The men then ordered both women to return to the building and instructed P.A.M. to unlock the door and turn off the burglar alarm. After entering the building P.A.M. was directed to open the safe. The women were then taken into separate rooms, where each was brutally sexually assaulted. After being sexually assaulted P.A.M. was further directed to deliver to the armed men the keys to the locked bank deposit bags. The two men then left the premises and ultimately were apprehended and convicted.

Although the assaults upon these women were vicious and brutal and nothing we do here is intended to minimize the tragedy, the question presented to us is not whether the attacks were cruel and brutal but, rather, whether the employer is subject to common-law liability because, as appellants' petitions alleged, the employer was negligent "[i]n failing to provide any security protection for its female employees leaving the premises in the middle of the night when the defendant knew, or should have known, of the danger of criminal assault," or did appellants' injuries arise out of and in the course of their employment, thereby limiting their cause of action to filing claims under the Nebraska Workmen's Compensation Act. If these were injuries arising out of and in the course of their employment, their exclusive remedies were in the Workmen's Compensation Court. As we observed in Johnston v. State, 219 Neb. 457, 462, 364 N.W.2d 1, 5 (1985), quoting from Marlow v. Maple Manor Apartments, 193 Neb. 654, 228 N.W.2d 303 (1975):

The Workmen's Compensation Act provides the exclusive remedy by the employee against the employer for any injury arising out of and in the course of the employment. This is the basis on which the rights of employers and employees are put in balance. The employer, by having liability imposed on him without fault, receives in return relief from tort actions. Logically, therefore, where the employer is negligent he should not be relieved of liability where compensation coverage is not provided to the employee.

....

... The operative fact is one of coverage, not of election to file a claim for compensation. If coverage exists, even though for some reason compensation may not be payable, the Workmen's Compensation Act is exclusive.

We think that the question involving P.A.M.'s case is clear under Nebraska law. At the time that the assault occurred, P.A.M. was on the employer's premises and was on her way to the bank to make the night deposit, clearly within the course of her employment. As admitted to by P.A.M., one of her duties, for which she received compensation, was to make the night deposit. The situation regarding P.A.M. is not dissimilar to the facts in the case of Ridenour v. Lewis, 121 Neb. 823, 238 N.W. 745 (1931). The evidence in Ridenour discloses that the employee was hired for the purposes of installing, repairing, and servicing radios and making collections for his employer. In the performance of these duties and while on a public street, the employee was robbed and assaulted. As a result of the assault, he died. In affirming the judgment of the district court awarding Ridenour's family death benefits provided by workmen's compensation law, we said at 831, 238 N.W. at 749:

It seems to be well settled that injuries caused by intentional assaults are compensable if they arise out of, or result from, a risk connected with the employment. Socha v. Cudahy Packing Co., 105 Neb. 691 ; Nelson v. Service Oil Co., 121 Neb. 762, 238 N.W. 525. This court is committed to the view that, when an employee is sent into the public street, under the circumstances detailed in this record, on his master's business, his employment necessarily involves exposure to all risks of the street, and injury from any such cause, not involving what is often referred to in the books as an "Act of God" (Gale v. Krug Park Amusement Co., 114 Neb. 432 ), arises "out of the employment," within the meaning of the workmen's compensation act.

We concluded in Ridenour by saying at 833, 238 N.W. at 749:

It would follow in the instant case that where the employment involved the installation, repair, and "servicing" of radios sold by the master, and also the collection of the master's accounts by the employee, and where such employee passing along the public streets pursuing his employment, with one of such accounts then in his possession for collection, is there assaulted for the purpose of robbery, and therein and thereby receives wounds causing his death, such injury arises out of, and in the course of, his employment.

Similarly, in Goodwin v. Omaha Printing Co., 131 Neb. 212, 267 N.W. 419 (1936), we held that the shooting of a traveling salesman, by a highwayman, while...