Voeller v. HSBC Card Servs., Inc.

• Citation: 834 N.W.2d 839,2013 S.D. 50
• Decision Date: 10 July 2013
• Docket Number: No. 26331.,26331.
• Parties: Ronald VOELLER, Court–Appointed Personal Representative of the Estate of Julie Diane Tassler and Court–Appointed Guardian of Mitchel Kane Tassler and Kristal Macie Tassler, Minors and Dependants of Deceased Employee, Julie Diane Tassler, Claimants and Appellants, v. HSBC CARD SERVICES, INC. and Chartis Insurance, Employer, Insurer and Appellees.
• Court: Supreme Court of South Dakota

834 N.W.2d 839

2013 S.D. 50

Ronald VOELLER, Court–Appointed Personal Representative of the Estate of Julie Diane Tassler and Court–Appointed Guardian of Mitchel Kane Tassler and Kristal Macie Tassler, Minors and Dependants of Deceased Employee, Julie Diane Tassler, Claimants and Appellants,

v.HSBC CARD SERVICES, INC. and Chartis Insurance, Employer, Insurer and Appellees.

No. 26331.

Supreme Court of South Dakota.

Argued March 20, 2013.

Decided July 10, 2013.

N. Dean Nasser, Jr., Jimmy Nasser of Nasser Law Offices, PC, Sioux Falls, South Dakota, Attorneys for claimants and appellants.

Richard L. Travis, Eric D. Denure of May & Johnson, PC, Sioux Falls, South Dakota, Attorneys for employer, insurer and appellees.

ZINTER, Justice.

[¶ 1.] Julie Tassler was shot and killed by her estranged husband in the parking lot of her employer. The personal representative of Julie's estate sought worker's compensation benefits for her death. Julie's employer and the South Dakota Department of Labor and Regulation denied benefits. They ruled that Julie's death did not “arise out of” her employment. The circuit court affirmed. We affirm.

Facts and Procedural History

[¶ 2.] On December 23, 2008, Julie served her husband Steven with a summons and complaint for divorce. The next morning, Julie reported to work at HSBC Card Services (Employer), where she had been employed since 2002. Around 9:30 a.m., Julie logged out of her work duties and left Employer's building to take her morning break in her car, which was in Employer's parking lot. Steven, who had been waiting in the parking lot in his vehicle, shot and killed Julie near her parked car. Steven then took his own life. There were no witnesses to the incident.

[¶ 3.] Ronald Voeller, Julie's father, was appointed the personal representative of Julie's estate. After Employer denied worker's compensation benefits for Julie's death, Voeller filed a petition for benefits with the Department.

[¶ 4.] To recover worker's compensation benefits, Voeller was required to prove, among other things, that Julie's death arose out of her employment. Voeller argued that Julie's death arose out of her employment because “but for” her being at work that day, she would not have been killed. Voeller also argued that Julie's employment facilitated her death because Steven would have only killed Julie on Employer's premises. Voeller claimed that Julie was only away from their children while at work, and Steven would not have killed her when their children were present. Voeller also claimed that Steven knew the layout of the parking lot, Julie's vehicle model, Julie's habit of parking in a certain area of the lot, and Julie's routine of taking morning breaks in her car. On the other hand, Employer argued that Julie's death arose out of a domestic assault that was purely personal, and consequently, there was no causal connection between the assault and Julie's employment.

[¶ 5.] On cross-motions for summary judgment, an administrative law judge granted summary judgment in favor of Employer. The ALJ noted that the “origin of the assault was a marital conflict[.]” The ALJ also noted that Steven and Julie were not coworkers, and there was “no evidence that [Julie's] employment or [any] relationship with a co-worker was a source of irritation in their marriage.” The ALJ concluded that Julie's employment “did not exacerbate or contribute to the assault[,]” and Julie's death “did not ‘arise out of’ her employment and [was] not compensable[.]” The Department's Secretary affirmed the ALJ's decision. Voeller appealed to the circuit court, which affirmed.

Decision

[¶ 6.] “When reviewing a grant of summary judgment, we decide only whether genuine issues of material fact exist and whether the law was correctly applied.” Fedderson v. Columbia Ins. Grp., 2012 S.D. 90, ¶ 5, 824 N.W.2d 793, 795 (internal quotation marks omitted). We conduct that review de novo. Jorgensen Farms, Inc. v. Country Pride Coop., Inc., 2012 S.D. 78, ¶ 7, 824 N.W.2d 410, 414. “All reasonable inferences drawn from the facts [are] viewed in favor of the nonmoving party and reasonable doubts [are] resolved against the moving party.” Gul v. Ctr. for Fam. Med., 2009 S.D. 12, ¶ 8, 762 N.W.2d 629, 632. However, “[e]ntry of summary judgment is mandated against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial.” Zephier v. Catholic Diocese of Sioux Falls, 2008 S.D. 56, ¶ 6, 752 N.W.2d 658, 662.

[¶ 7.] To recover worker's compensation benefits, the employee has the burden of proving that he or she sustained an injury “arising out of” and “in the course of” employment. SDCL 62–1–1(7). We construe these requirements liberally so benefits are “not limited solely to the times when the employee is engaged in the work that he [or she] was hired to perform.” Fair v. Nash Finch Co., 2007 S.D. 16, ¶ 9, 728 N.W.2d 623, 628–29. Even though we analyze each requirement independently, “they are part of the general inquiry of whether the injury or condition complained of is connected to the employment.” Id. ¶ 9, 728 N.W.2d at 629.

[¶ 8.] In this case, the parties agree that Julie's death occurred in the course of her employment. The question is whether Julie's death arose out of her employment. To prove that an injury arose out of employment, “the employee must show that there [was] a ‘causal connection between the injury and the employment.’ ” Id. ¶ 10, 728 N.W.2d at 629 (quoting Bender v. Dakota Resorts Mgmt. Grp., Inc., 2005 S.D. 81, ¶ 10, 700 N.W.2d 739, 742). “Although the employment need not be the direct or proximate cause of the injury, the accident must have its ‘origin in the hazard to which the employment exposed the employee while doing [his or her] work.’ ” Id. (quoting Bender, 2005 S.D. 81, ¶ 10, 700 N.W.2d at 742).

[¶ 9.] In determining whether the requisite causal connection exists, it is often useful to examine three categories of risk of injury to which an employee may be exposed: “risks distinctly associated with the employment, risks personal to the [employee], and neutral risks[.]” Bentt v. D.C. Dep't of Emp't Servs., 979 A.2d 1226, 1232 (D.C.2009) (internal quotation marks omitted). See also Logsdon v. ISCO Co., 260 Neb. 624, 618 N.W.2d 667, 672 (2000); Fetzer v. N.D. Workforce Safety & Ins., 815 N.W.2d 539, 546 (N.D.2012) (Maring, J., dissenting); 1 Arthur Larson & Lex K. Larson, Larson's Workers' Compensation Law §§ 4.01–4.03 (2012). Injuries arising from risks distinctly associated with employment are universally compensable, while injuries from personal risks are generally noncompensable. Bentt, 979 A.2d at 1232;Logsdon, 618 N.W.2d at 672;Fetzer, 815 N.W.2d at 546;see also Larson, supra, § 7.02[4]. Risks personal to the employee are those risks “so clearly personal that, even if they take effect while the employee is on the job, they could not possibly be attributed to the employment.” Larson, supra, § 4.02.

[¶ 10.] Injuries occurring as a result of neutral risks may be compensable under the positional risk doctrine. See, e.g., Milledge v. Oaks, 784 N.E.2d 926, 931–34 (Ind.2003); Logsdon, 618 N.W.2d at 672–74; Larson, supra ¶ 9, § 3.05. The positional risk doctrine involves:

situations in which the only connection of the employment with the injury is that its obligations placed the employee in the particular place at the particular time when he or she was injured by some neutral force, meaning by “neutral” neither personal to the claimant nor distinctly associated with the employment.

Larson, supra ¶ 9, § 3.05. The positional risk doctrine utilizes the “but for” test: ¹ “An injury arises out of the employment if it would not have occurred but for the fact that the conditions and obligations of the employment placed claimant in the position where he or she was injured.” Id. Voeller argues that Julie's death is compensable under the “but for” test.

[¶ 11.] This Court—without stating it—has applied the positional risk doctrine. In Steinberg v. South Dakota Department of Military & Veterans Affairs, 2000 S.D. 36, ¶¶ 22, 30, 607 N.W.2d 596, 603, 606, a slip and fall on ice on employer's premises was compensable because the employee was “in an area where she might reasonably be and at the time when her presence there would normally be expected.” In Walz v. Fireman's Fund Insurance Co., 1996 S.D. 135, ¶¶ 2, 5, 15, 556 N.W.2d 68, 69, 72, an employee's injury, which was sustained by slipping on ice in her employer's parking lot, was compensable because the employee “would not have been in [her][e]mployer's parking lot if she had not been working that day.” In Fair v. Nash Finch Co., 2007 S.D. 16, ¶¶ 13–18, 728 N.W.2d 623, 629–32, an employee's fall while leaving the employer's store was compensable. We noted, “[A]ccidental injuries suffered by an employee while leaving the building wherein his actual work is being done are generally deemed to have arisen out of and in the course of the employment [.]” Id. ¶ 13, 728 N.W.2d at 629.

[¶ 12.] In this case, however, compensation is not awardable under positional risk cases like Steinberg, Walz, and Fair. Unlike those cases, this case did not involve a neutral risk. Julie's death arose out of the personal risk that developed from accumulating domestic pressures and her divorce. By definition, the positional risk doctrine requires that the risk must be one in which “any other person then and there present would have met with irrespective of his employment[.]” Steinberg, 2000 S.D. 36, ¶ 25, 607 N.W.2d at 605. But here, no other employee present in Employer's parking lot that day would have been assaulted by Steven.

[¶ 13.] Voeller, however, points out that this Court has allowed compensation under the “but for” test in two assault cases. In Anderson v. Hotel Cataract, 70 S.D. 376, 17 N.W.2d 913 (1945), this Court concluded that an assault by one coworker upon...