Sheerin v. Holin Co., 84-1737

• Decision Date: 15 January 1986
• Docket Number: No. 84-1737,84-1737
• Citation: 380 N.W.2d 415
• Parties: Ann H. SHEERIN, Administrator of the Estate of Louise Sheerin, Deceased, Appellant, v. HOLIN CO., Appellee, State of Iowa, Safer Foundation Holiday Inns, Inc., L.M. Nelson, Sarkey's Inc., Ed Kopp, and Bernard Hickman, Defendants.
• Court: Iowa Supreme Court

Page 415

380 N.W.2d 415

Ann H. SHEERIN, Administrator of the Estate of Louise Sheerin, Deceased, Appellant, v. HOLIN CO., Appellee State of Iowa, Safer Foundation Holiday Inns, Inc., L.M. Nelson, Sarkey's Inc., Ed Kopp, and Bernard Hickman, Defendants.

No. 84-1737.

Supreme Court of Iowa.

Jan. 15, 1986.

Harold J. DeLange II of Wehr & DeLange, Davenport, for appellant.

Patricia R. Cepican and John Stonebraker of McDonald, Stonebraker & Cepican, P.C., Davenport, for appellee.

Considered en banc.

CARTER, Justice.

The sole issue presented on this appeal is whether there exists a genuine issue of material fact with respect to the claim of defendant, Holin Co., that the tragic death of plaintiff's decedent was a circumstance arising out of and in the course of her employment with that defendant. The district court ruled that there was no genuine issue of material fact concerning decedent's entitlement to workers' compensation benefits and granted the employer's motion for summary judgment in this action seeking to recover common-law damages. We find that, on the record made on the motion for summary judgment, the employer has failed to negate the existence of a genuine issue of material fact concerning whether decedent's injuries occurred in the course of her employment. Accordingly, we reverse the grant of summary judgment.

In September 1981, plaintiff's decedent, Louise Sheerin, was employed by the defendant, Holin Co. (Holin), as a waitress at a motel in Bettendorf. On September 5, 1981, she was stabbed to death at the motel during working hours by Bernard Hickman who was employed there as a cook. Hickman was subsequently charged with first-degree murder and convicted. That conviction and life sentence was affirmed on appeal. State v. Hickman, 337 N.W.2d 512 (Iowa 1983).

The administrator of Louise Sheerin's estate filed this wrongful death action against several defendants, including Holin. It is alleged in this action that Holin was negligent in (1) failing to acquire adequate information about Hickman's history of violent behavior, (2) failing to warn other employees of Hickman's background of sexual assault, (3) failing to adequately protect other employees from Hickman, and (4) allowing Hickman access to dangerous instrumentalities. Holin thereafter moved for summary judgment on the ground that the sole remedy for the death of plaintiff's decedent is that provided under the workers' compensation act, Iowa Code chapter 85. Specifically, this argument is posited on the exclusive remedy provisions contained in Iowa Code sections 85.3(1) and 85.20 (1981). In resistance, plaintiff asserted an issue of material fact existed concerning whether the death of Louise Sheerin occurred in the course of her employment or arose out of her employment. The district court granted Holin's motion, and this appeal followed.

We have repeatedly held in ruling on motions for summary judgment that, where the evidentiary matter in support of the motion does not establish the absence of a genuine issue of material fact, summary judgment must be denied without regard to the sufficiency of the resistance. Banks v. City of Ames, 369 N.W.2d 451, 456 (Iowa 1985); Daboll v. Hoden, 222 N.W.2d 727, 732-33 (Iowa 1974); Sherwood v. Nissen, 179 N.W.2d 336, 339 (Iowa 1970). In Sherwood, 179 N.W.2d at 339, we quoted the following from 6 J. Moore, Moore's Federal Practice p 2825 (2d ed. 1966):

"[T]he party moving for summary judgment has the burden to show that he is entitled to judgment under established principles; and if he does not discharge that burden then he is not entitled to judgment. No defense to an insufficient showing is required."

Tested by these principles, we believe that Holin's motion for summary judgment was insufficiently supported to establish as a matter of law that the death of plaintiff's decedent occurred in the course of her employment.

The requirement that in order to fall within the scope of the workers' compensation act an injury or a death must occur "in the course of" the employment refers to time, place and circumstances of injury. Buehner v. Hauptly, 161 N.W.2d 170, 171 (Iowa 1968). The additional requirement that the injury or a death "arise out of" the employment relates to the cause and origin of the injury. McClure v. Union County, 188 N.W.2d 283, 287 (Iowa 1971). The "arising out of" requirement is satisfied by showing a causal relationship between the employment and the injury, but the "in the course of" requirement is not. Nor is it always enough that the injury occur at the employer's place of business during working hours in order to be incurred "in the course of" employment. If an employee deviates sufficiently from the line of duty so that his or her actions are foreign to the employer's work, this may take the employee outside the course of employment. Crees v. Sheldahl Telephone Co., 258 Iowa 292, 300, 139 N.W.2d 190, 195 (1965); Walker v. Speeder Machinery Corp., 213 Iowa 1134, 1145-46, 240 N.W. 725, 730 (1932).

Holin, in support of its motion for summary judgment, attempted to establish the "arising out of" and "in the course of" requirements in two ways. First, by a reference to the allegations contained in plaintiff's petition. Second, by the affidavit of the manager of the motel where Louise Sheerin was employed, stating that she was an employee and "on duty" at the time of her death. Allegations contained in a pleading which has not been withdrawn or superseded are conclusive admissions of the facts stated and may be utilized by an opposing party in support of a motion for summary judgment. See Matter of Estate of Thompson, 346 N.W.2d 5, 7 (Iowa 1984); Grantham v. Pottoff-Rosene Co., 257 Iowa 224, 230, 131 N.W.2d 256, 259 (1964). While we can accept the contention that the allegations contained in plaintiff's petition when coupled with the affidavit of the motel manager serve to negate any genuine issue of material fact with respect to the "arising out of" element, we are not convinced that the showing made establishes as a matter of law that the "in the course of" element has been established. The record in support of the motion is largely silent concerning the circumstances at and immediately prior to decedent's injury and death. For this reason, the record does not negate the possibility that the attack was preceded by a departure from the course of employment. This circumstance precludes the granting of summary judgment on this jurisdictional issue. ¹

Because we have based our decision on the insufficiency of the showing presented by the moving party, we need not consider the consequences of plaintiff's resistance to the motion for summary judgment, which appears to invoke the statutory exclusion contained in Iowa Code section 85.16(3) (compensation not allowed for willful act of a third party directed against the employee for reasons personal to such employee). The order granting summary judgment is reversed, and the case is remanded to the district court for further proceedings not inconsistent with this opinion.

REVERSED AND REMANDED.

All Justices concur except REYNOLDSON, C.J., and HARRIS, J., who dissent.

HARRIS, Justice (dissenting).

There are only two versions of this tragedy. One, shown by the State in a prior murder trial, was alleged by the plaintiff. The other was asserted by the murderer at the same trial. The majority position, as I understand it, is to start with the murderer's version and to imagine a scenario which might take the case outside workers' compensation coverage and thus rescue this tort suit against the employer. Much as my heart goes out to the family of this victim I have a number of problems with the majority's rescue. I think the trial court's ruling was correct.

I. The plaintiff's version is unequivocal. She alleges

that on or about September 5, 1985, Louise [the decedent] was working at her place of employment ... when between the hours of 5:30 a.m. and 7:00 a.m. a fellow employee, Bernard Hickman, violently assaulted, and stabbed Louise numerous times, resulting in her death.

The negligence which plaintiff alleges against the employer is six-fold:

(1) In failing to acquire proper and adequate information concerning the background of Hickman prior to his employment.

(2) In failing to warn co-employees of Hickman's background for sexual assaults.

(3) In failing to take adequate steps to protect employees from Hickman.

(4) In failing to protect Louise from assault of employees.

(5) In allowing access to Hickman to dangerous instrumentalities which could cause injuries or death.

(6) In failing to provide adequate security for employees upon the premises at the time of Louise's death.

We know some undisputed facts from the record made in Hickman's trial. State v. Hickman, 337 N.W.2d 512 (Iowa 1983). We also know Hickman's version.

We can take it as established that Louise was employed as a waitress at a Bettendorf motel and that Hickman was employed there as a cook. Louise's relationship with Hickman originated at work; the place of work necessitated contact between the two; Louise's work assignment...