Roberts v. Burlington Industries, Inc., 387PA87

• Decision Date: 03 February 1988
• Docket Number: No. 387PA87,387PA87
• Citation: 321 N.C. 350,364 S.E.2d 417
• Parties: Rosemary Hudson ROBERTS, Widow; Rosemary Hudson Roberts, Guardian Ad Litem of Jessica Gay Roberts, Minor Daughter of Timothy Lee Roberts, Deceased, Employee, Plaintiffs v. BURLINGTON INDUSTRIES, INC., Employer Lumbermen's Mutual Casualty Co., Carrier, Defendants.
• Court: North Carolina Supreme Court

Page 417

364 S.E.2d 417

321 N.C. 350

Rosemary Hudson ROBERTS, Widow; Rosemary Hudson Roberts Guardian Ad Litem of Jessica Gay Roberts, Minor Daughter of Timothy Lee Roberts Deceased, Employee, Plaintiffs v. BURLINGTON INDUSTRIES, INC., Employer Lumbermen's Mutual Casualty Co., Carrier, Defendants.

No. 387PA87.

Supreme Court of North Carolina.

Feb. 3, 1988.

McNairy, Clifford, Clendenin & Parks by Harry H. Clendenin, III, Greensboro, for plaintiffs-appellees.

Smith Helms Mulliss & Moore by J. Donald Cowan, Jr., and Caroline H. Wyatt, Greensboro, for defendants-appellants.

WHICHARD, Justice.

Decedent employee, while returning home from a business trip, was struck by a car and killed as he assisted an injured pedestrian who had no connection to the employee's duties or his employer's business. The issue is whether his death arose out of the employment and thus was compensable under the Workers' Compensation Act, N.C.G.S. § 97-1 et seq. We hold that it did not.

Decedent, Timothy Lee Roberts, was employed by defendant Burlington Industries, Inc. (Burlington) as a furniture designer in its Furniture Division in Lexington. Burlington sells furniture exclusively to retailers; decedent's duties thus did not include any contact with the general public. He did, however, make occasional visits to retail furniture stores to inspect displayed furniture.

On 18 November 1982, decedent drove his private car from his home in Thomasville to the Greensboro Regional Airport. He met four other Burlington employees there, and they made a business trip to Burlington's plant in Robbinsville, North Carolina. They returned to Greensboro at 5:30 p.m. and left the airport around 5:45 p.m. in separate cars.

The record contains no evidence of decedent's activities during the next hour and a half. The parties stipulated that Burlington sold furniture to two retail stores located near the scene of the accident. On the date in question both stores were open from 5:45 p.m. to 7:30 p.m., and both were displaying Burlington's furniture.

At approximately 7:30 p.m., decedent drove down the entrance ramp toward I-85 South at the Holden Road Exit in Greensboro. Moments before he arrived, a car had struck a pedestrian who was walking down the ramp. David Smith was the first person to arrive at the scene. Decedent also stopped and offered to assist by contacting the authorities. He left the scene, notified the Highway Patrol, and returned in five to eight minutes.

Decedent then suggested that Smith move up the ramp to warn oncoming traffic. Decedent positioned himself near the pedestrian's body in order to direct cars away from it. While standing near the pedestrian's body, he was struck by a car. He died at the scene from the injuries thereby sustained.

Decedent's benevolent acts received some attention from the media. At least six newspapers and an industry magazine reported his tragic death. Three of these publications mentioned that decedent was employed by Burlington.

Decedent's widow and daughter brought this action seeking workers' compensation death benefits. Deputy Commissioner Shuping found that decedent was returning home by his normal route from a business trip and that the accident thus occurred in the course of the employment. He concluded, however, that the accident did not arise out of the employment, and he thus denied compensation. He based this conclusion on the following "findings of fact":

2. Decedent's untimely death, however, did not arise out of the same employment; but rather, arose from the entirely voluntary--albeit undisputedly commendable, humanitarian act of a good citizen and [S]amaritan in stopping to render assistance to an apparent total stranger and had absolutely no rational relationship to his duties as a furniture designer for defendant-employer nor was said employer, which only sold its furniture directly to retail outlets rather than to individual members of the public, to any extent appreciably benefited thereby whether directly or indirectly.

....

3. As a furniture designer decedent was primarily involved in the production, rather than the sales, end of defendant-employer[']s business which obviously did not require that he attempt to develop and foster the same personal contacts with potential customers as would have members of its sales force and, even then, such customers were not individual members of the public at large; but rather, representatives of the retail outlets to whom it exclusively sold furniture who would themselves not ordinarily have any direct personal contact with decedent. In any regard there is no evidence that the particular individual that decedent attempted to aid, who was himself an apparent total stranger, was a customer of defendant-Burlington Industries and based not only upon the above-described nature of its ordinary customers, but that the same [individual] was financially destitute, it can be reasonably inferred that he was not then, had never been nor would likely ... be a customer thereof. There was similarly absolutely no evidence of record that the defendant-employer either directed or encouraged its employees to assist members of the general public that they encountered in distress or to otherwise take any direct action towards members of the general public so as to foster good will and thereby its business interest. At the time of stopping to assist [the individual], decedent was driving his own vehicle, as opposed to one of the defendant- employer[']s which could be specifically identified as such and him as an employee thereof [who] ha[d] stopped to render aid at any accident scene by a member of the general public passing; but rather, unless someone had specifically asked him the nature of his employment or he had otherwise volunteered it, decedent's heroic act would have likely remained one of [an] [anonymous] stranger had he not been tragically killed, as a result of which he was identified in some, but not all, the stipulated newspaper article[s] as an employee of defendant-Burlington Industries; however, in the opinion of the undersigned, any resulting good will toward defendant-employer is too remote and immeasur[able] for his actions on this occasion to be considered of any appreciable, even indirect, benefit to said employer. Whether as a matter of public policy decedent should recover under the Workers' Compensation Act in order to foster similar acts of good [S]amarit[an]ism is beyond the Industrial Commission's authority to grant.

Plaintiffs appealed to the full Commission, which adopted as its own the Deputy Commissioner's opinion and award. The Commission majority summarized its position by stating:

In our opinion, the activity in which the employee was engaged at the time of death was a risk to which members of the general public are equally exposed outside of the employment.

....

The risk was not created by the employment or a natural part of his employment as a furniture designer.

Commissioner Clay dissented.

Plaintiffs then appealed to the Court of Appeals. The Court of Appeals held that the injury did arise out of the employment, and accordingly it reversed the Commission. Roberts v. Burlington Industries, 86 N.C.App. 126, 356 S.E.2d 794 (1987). It acknowledged a long line of cases which hold that a compensable injury cannot result from a risk "to which the employee would have been equally exposed apart from the employment." Roberts v. Burlington Industries, 86 N.C.App. at 135, 356 S.E.2d at 800. It "found," however, that the hazard encountered by decedent was not one to which the general public was equally exposed. Id. at 136, 356 S.E.2d at 800. The selfless nature of decedent's act, the court stated, made it "not something generally done by all." Id. By taking affirmative humanitarian action, decedent willingly exposed himself to "hazards to which the general public is [not] equally exposed." Id. Moreover, the publicity surrounding decedent's benevolent acts benefited his employer "by increasing the employer's good will." Id. at 133, 356 S.E.2d at 798. The court also noted that its holding would encourage humanitarian acts and thus benefit employers. Id. at 136, 356 S.E.2d at 800.

An opinion and award of the Industrial Commission will only be disturbed upon the basis of a patent legal error. Hoffman v. Truck Lines, Inc., 306 N.C. 502, 505, 293 S.E.2d 807, 809 (1982). The legal error asserted here relates to the requirement that for a death by injury to be compensable under the Workers' Compensation Act, it must arise out of and in the course of the employment. N.C.G.S. § 97-2(6), (10) (1985). "Whether an injury arose out of and in the course of employment is a mixed question of law and fact, and where there is evidence to support the Commissioner's findings in this regard, we are bound by those findings." Hoffman v. Truck Lines, Inc., 306 N.C. at 506, 293 S.E.2d at 809-10, quoting Barham v. Food World, 300 N.C. 329, 331, 266 S.E.2d 676, 678 (1980).

As used in the Workers' Compensation Act, the phrase "arising out of the employment" refers to the origin or cause of the accidental injury while the words "in the course of the employment" refer to the time, place, and circumstances under which an accidental injury occurs. Bartlett v. Duke University, 284 N.C. 230, 233, 200 S.E.2d 193, 194-95 (1973); Robbins v. Nicholson, 281 N.C. 234, 238, 188 S.E.2d 350, 353 (1972). While often interrelated, the concepts of "arising out of" and "in the course of" the employment are distinct requirements, and a claimant must establish both to receive compensation. Hoyle v. Isenhour Brick and Tile Co., 306 N.C. 248, 251, 293 S.E.2d 196, 198 (1982).

The Deputy Commissioner concluded that decedent's death by injury arose in the course of his employment, and the full Commission adopted his conclusion. Burlington does not dispute this conclusion. Whether the "arising out of the employment" requirement has been met thus is the only issue...