Ross v. Mark's Inc.

• Decision Date: 07 November 1995
• Docket Number: No. COA94-1383,COA94-1383
• Citation: 463 S.E.2d 302,120 N.C.App. 607
• Court: North Carolina Court of Appeals
• Parties: Donna Marie ROSS, Daughter, and Richard Lee Godwin, Son of Mamie Paulette Brock, Deceased Employee-Appellants, v. MARK'S INC., d/b/a Hardee's of Greenville, Employer-Appellee.

Page 302

463 S.E.2d 302

120 N.C.App. 607

Donna Marie ROSS, Daughter, and Richard Lee Godwin, Son of

Mamie Paulette Brock, Deceased Employee-Appellants, v. MARK'S INC., d/b/a Hardee's of Greenville, Employer-Appellee.

No. COA94-1383.

Court of Appeals of North Carolina.

Nov. 7, 1995.

James Hite Avery Clark & Robinson by Leslie S. Robinson, Greenville, for plaintiffs-appellants.

Cranfill, Sumner & Hartzog, L.L.P. by C.D. Taylor Pace and W. Scott Fuller, Raleigh, for defendant-appellee.

SMITH, Judge.

In this case, plaintiffs, children of deceased employee, attempted to recover workers' compensation benefits for the death of their mother resulting from an assault inflicted by her ex-husband. Deputy Commissioner Roger L. Dillard, Jr., found that the moving cause of the assault upon the employee was personal, did not arise out of her employment and, therefore, was not compensable under the Workers' Compensation Act. Plaintiffs appealed to the Full Commission, which adopted, with slight modification, the findings of fact and conclusions of law of the Deputy Commissioner and affirmed the denial of benefits. Plaintiffs appeal to this Court. We affirm.

In August of 1990, employee, Mamie Paulette Brock, was the assistant manager of Hardee's Fast Food Restaurant in Greenville. At that time she had been divorced from Larry Ray Godwin for seven years. Approximately six months prior to August of 1990, Brock and Godwin began living together again. The two had a tumultuous relationship because Brock continued to have boyfriends other than Godwin and Godwin became very jealous. Three months before Brock's death, Godwin discovered her having sex with another man in the back of a van. At that time Godwin held a gun to Brock's head and threatened to kill her. On several occasions, Godwin told co-workers that he was going to kill Brock. Several days before 13 August 1990, Godwin became so enraged with Brock that he asked her to move out of the mobile home in which the two lived.

On 13 August 1990, Godwin went to Hardee's and saw Brock having dinner with one of her boyfriends. Outraged, Godwin went out to the Hardee's parking lot and waited 20 or 30 minutes. Brock's boyfriend exited through the back door of Hardee's and did not confront Godwin. Godwin went home, where he explained to his roommate what had happened. His roommate told him he needed to "get her back." According to Godwin's later confession to police, he and his roommate then formulated a plan to punish and embarrass Brock. They decided to take defendant employer's money from employee Brock after she had closed the restaurant and was on her way to make the night deposit. They believed that by robbing the employee, they could embarrass her and make her think she would have to replace the money out of her own funds in order to prevent employer from absorbing a loss caused by her personal acquaintances. As a result, Godwin and his roommate believed this would be revenge upon Brock.

Later on the evening of 13 August 1990 Godwin and his roommate went back to Hardee's where Godwin hid in Brock's car, waiting for her until she finished work. When Brock got into her vehicle and was on her way to the bank, Godwin showed himself. At some point, Brock stopped the car and allowed Godwin to drive. The two became engaged in a fight and, after driving down the road for some distance, Godwin pulled the car to the side of the road where he and Brock continued a heated argument. Godwin grabbed a pistol, which was in Brock's car, and shot her at least twice. Godwin then told his roommate, who had been following them in another car, what had happened. The roommate then shot Brock again.

Godwin and his roommate took Brock's body to a remote site in Washington, North Carolina, where they disposed of Brock's body, her belongings and their own bloody clothes. During this time, the roommate said that they needed to make it look like a kidnapping, robbery, rape and murder. They divided the bank deposit of $293.61.

Based upon the foregoing facts, the Full Commission made the following conclusions of law:

1. There is no reasonable inference that can be drawn from the evidence presented that the decedent's employment created the risk of her attack. The actual cause of the assault on the deceased employee by her ex-husband was personal. The plaintiff's claim is not compensable.

2. Decedent's death did not arise out of her employment, although she was kidnapped and murdered as she was leaving her place of employment and was on the way to make defendant-employer's bank deposit. Even though there is evidence that would tend to indicate that robbing the employee was the method that the ex-husband and his roommate had schemed to have revenge on the employee, these actions were directed to the deceased employee personally and arose from a set of circumstances outside of her employment and, thus, did not arise within or out of the scope of her employment.

Plaintiffs contend that the Industrial Commission erred on the ground that there is a reasonable inference which can be drawn from the evidence that decedent Brock's employment created the risk of her attack and that the assault arose out of and in the course of her employment and was not personal in nature.

In an appeal from a decision by the Industrial Commission, this Court's standard of review is limited to a determination of whether the Commission's findings of fact are supported by competent evidence and whether the conclusions of law are supported by the findings. Hemric v. Manufacturing Co., 54 N.C.App. 314, 316, 283 S.E.2d 436, 438 (1981), disc. review denied, 304 N.C. 726, 288 S.E.2d 806 (1982)....