Appeal by plaintiffs from judgment entered 29 January 2001 by
Judge D. Jack Hooks, Jr., in Scotland County Superior Court. Heard
in the Court of Appeals 24 April 2002.
Puryear and Lingle, P.L.L.C., by David B. Puryear, Jr.; and
Hayes Hofler & Associates, P.A., by R. Hayes Hofler, for
plaintiff appellants.
Moreau, Marks & Gavigan, PLLC, by W. Timothy Moreau;
Etheridge, Moser, Garner & Bruner, by Terry R. Garner; and
Cranfill, Sumner & Hartzog, L.L.P., by Samuel H. Poole, Jr.,
for defendant appellees.
McCULLOUGH, Judge.
Plaintiffs Lolitta Hunt Caple and Luther R. Caple, Jr., appeal
from an order granting summary judgment in favor of defendants
Bullard Restaurants, Inc., d/b/a Burger King, Tar Heel, Inc., d/b/a
Burger King and Clifford Bullard, Jr., entered 29 January 2001 by
the Honorable D. Jack Hooks, Jr., during the 27 November 2000 Civil
Session of Scotland County Superior Court.
Plaintiff Lolitta Caple was the assistant manager of defendant
Tar Heel, Inc.'s Burger King restaurant in Hamlet, North Carolina.
On 14 May 1998, she was assigned by her supervisor to work as the
night manager at defendant Bullard Restaurants, Inc.'s LaurinburgBurger King restaurant. The two defendant companies had
interlocking ownership and management.
Defendant Wayne Fields worked at the Laurinburg restaurant as
the night porter on 14 May 1998. The night porter at Burger King,
among other things, was to safeguard fellow employees when the
restaurant closed at night by making sure they left safely. When
Fields was hired by defendant Bullard Restaurants, Inc., he
indicated on his application that he had not been convicted, pled
guilty, or pled no contest to any felony or misdemeanor other than
a traffic violation in the past five years. Defendants did not
perform a criminal record check, or for that matter verify anything
else from Fields' application. Fields had in fact been convicted
of several crimes within the previous five years, including
breaking and entering, assault on a female, communicating threats,
and injury to real property. Defendant Fields had also been
convicted of second-degree murder in 1986.
Mrs. Caple's duties as night manager were to run the shift, do
inventory, transfer the money from the registers to the safe after
counting it, and make sure that all was ready for the morning
shift. The night manager was not to leave the restaurant until the
night porter arrived.
Fields arrived at the restaurant on 14 May 1998 after
plaintiff had finished counting the money and putting it in the
safe. After the last of the employees left, plaintiff and Fields
were the only ones still in the restaurant. Fields then assaulted
her from behind with a pipe wrench. He demanded that she open thesafe. When she could not, he threatened to kill her. Then, he
tied her up and attempted to open the safe. Fields ended up
stealing the safe instead of getting it open. Plaintiff eventually
escaped and was found by police in the area. Fields was apprehended
and convicted of robbery, assault, and various other crimes arising
out of the incident.
Mrs. Caple signed a Form 21 Agreement for Workers'
Compensation Benefits on 25 May 1998. This form represents the
agreement between Mrs. Caple and Bullard's workers' compensation
carrier that she “sustained an injury by accident . . . arising out
of and in the course of employment on or by May 14, 1998.” The
injuries resulting from the assault by Fields were listed as to her
“wrist, ankle, and scapular contusion, psychological.” Mrs. Caple
has received workers' compensation payments beginning in May of
1998 to the present, as well as payment for all of her medical
bills as required under the act.
Nevertheless, Mrs. Caple filed this civil suit against
defendants on 22 October 1998. The complaint alleges that Mrs.
Caple suffers from “severe post traumatic stress syndrome and
depression. She is unable to eat, sleep, work, relax, leave her
home, or function at any reasonable level.” The complaint asserts
several theories of recovery, including negligence as to Bullard
Restaurants and Clifford Bullard's hiring of Fields, negligent
infliction of emotional distress, intentional infliction of
emotional distress as to Bullard Restaurants, Clifford Bullard, and
Fields; breach of contract as to Bullard Restaurants, Inc., TarHeel, Inc., assault and battery and false imprisonment as to
Fields, and a loss of consortium claim by her husband. In her
negligence claim, she alleges that she “continues to suffer
decreased earning capacity[.]” The crux of the complaint was that
there was no investigation into Fields' application before he was
hired to assist in the protection of his fellow employees.
Defendants Bullard Restaurants, Inc., Tar Heel, Inc., and
Clifford Bullard, Jr., made their motion for summary judgment on 8
May 2000. Evidence from discovery tended to show that during the
three weeks that Fields worked before the assault and robbery, he
did nothing to alert anyone as to his violent tendencies, or that
he was a safety risk. The evidence also showed that the hiring
practices used with Fields were the practices used in hiring all
other employees. Bullard Restaurants had no actual knowledge of
Fields' criminal history, and no indication of it through his
conduct at work. However, evidence for plaintiff revealed that
Fields' application showed unusual gaps for a 41-year-old man and
that defendants violated its own practices as well as industry
practices in failing to verify any information in the Fields
application. Had they checked with Fields last employer, they would
have found that he had been fired and became violent. That would
have mandated a criminal record check.
After a hearing, Judge Hooks found that there was no genuine
issue as to any material fact and granted summary judgment to
defendants, except for Fields, who had a default judgment entered
against him. Plaintiffs appeal from this order. The plaintiffs' sole assignment of error is that the trial
court erred in granting defendant's motion for summary judgment.
I.
The main issue at the trial court and on appeal is whether
the claims are barred by the exclusivity provisions of the Workers'
Compensation Act which turns on whether the injuries suffered by
plaintiff are covered by the Workers' Compensation Act.
N.C. Gen. Stat. § 97-10.1 states that:
If the employee and the employer are
subject to and have complied with the
provisions of this Article, then the rights
and remedies herein granted to the employee,
his dependents . . . shall exclude all other
rights and remedies of the employee, his
dependents . . . as against the employer at
common law or otherwise on account of such
injury or death.
N.C. Gen. Stat. § 97-10.1 (2001). “In order for an injury to be
compensable under the Workers' Compensation Act, a claimant must
prove: '(1) [t]hat the injury was caused by an accident; (2) that
the injury arose out of the employment; and (3) that the injury was
sustained in the course of employment.'”
Wake County Hosp. Sys. v.
Safety Nat. Casualty Corp., 127 N.C. App. 33, 38, 487 S.E.2d 789,
792,
disc. review denied, 347 N.C. 410, 494 S.E.2d 600 (1997)
(quoting
Gallimore v. Marilyn's Shoes, 292 N.C. 399, 402, 233
S.E.2d 529, 531 (1977)).
Plaintiffs' main contention is that the emotional injuries
suffered by her as a result of the assault by her co-employee did
not arise out of her employment and thus are not covered under the
Workers' Compensation Act. Initially, we note that there is significance to the fact that
plaintiff and defendants' workers' compensation carrier signed a
Form 21 Agreement for Workers' Compensation Benefits months in
advance of filing her civil suit. The Commission approved the
agreement on 22 December 1999. At this point, the agreement became
binding on the parties and assumed the force and effect of a ruling
by the Industrial Commission.
See Clark v. Sanger Clinic, P.A., 142
N.C. App. 350, 542 S.E.2d 668,
disc. review denied, 353 N.C. 450,
548 S.E.2d 524 (2001);
Pruitt v. Publishing Co., 289 N.C. 254, 221
S.E.2d 355 (1976); N.C. Gen. Stat. § 97-17 (2001). These cases
stand for the proposition that, once approved, a Form 21 “becomes
an award enforceable, if necessary, by a court decree.”
Pruitt,
289 N.C. at 258, 221 S.E.2d at 358.
In
Clark, an employee was contesting as incorrect the rate
agreed to in the Form 21 Agreement that she had signed and the
Industrial Commission had approved. The
Clark Court noted that the
employee had not properly preserved the right to challenge her rate
of compensation. In so holding, this Court said that once a Form
21 Agreement is approved, “neither party was in a position to
challenge any provision of the agreement, 'unless it [was] made to
appear to the satisfaction of the Commission 'that there [had] been
error due to fraud, misrepresentation, undue influence or mutual
mistake.''”
Clark, 142 N.C. App. at 353, 542 S.E.2d at 671
(quoting
Pruitt, 289 N.C. at 259, 221 S.E.2d at 358) (quoting
Neal
v. Clary, 259 N.C. 163, 130 S.E.2d 39 (1963)). In addition, the
claimant in
Clark had collected the compensation for almost a yearbefore she requested a hearing on her request for yearly increases
in compensation. The employee in
Clark therefore remained “bound
by the agreement and, due to her conduct, . . . waived any right to
challenge the compensation received thereunder.”
Id. at 354, 542
S.E.2d at 671.
The Form 21 Agreement approved in the present case
acknowledges that the injury suffered by Mrs. Caple was a
compensable injury, in that it was an “injury by accident . . .
arising out of and in the course of employment on or by May 14,
1998.” (Emphasis added.) Plaintiff began receiving compensation
in May of 1998 and has continued to do so up to the present.
Plaintiff did not dispute the provisions of her agreement until
around five months later when she filed her civil complaint. At no
time has Mrs. Caple sought to have the Form 21 Agreement set aside
for any of the reasons enumerated in § 97-17 (
i.e., fraud or
misrepresentation). Therefore, Mrs. Caple is bound by her
agreement in which it was stated that the injury arose out of the
employment.
Plaintiff argues that
Woodson v. Rowland, 329 N.C. 330, 407
S.E.2d 222 (1991) allows her to pursue this civil action. We
disagree. The Supreme Court in
Woodson concluded that the
plaintiff could simultaneously pursue a civil action against her
employer and her workers' compensation claim “without being
required to elect between them,” although she was entitled to only
one recovery.
Woodson, 329 N.C. at 337, 407 S.E.2d at 226. This
was so because her forecast of evidence tended to show that thedeath of the decedent “was the result of both an 'accident' under
the [Workers' Compensation Act] and an intentional tort,” and the
exclusivity provisions do not “shield the employer from civil
liability for an intentional tort.”
Id.
We hold that when an employer intentionally
engages in misconduct knowing it is
substantially certain to cause serious injury
or death to employees and an employee is
injured or killed by that misconduct, that
employee, or the personal representative of
the estate in case of death, may pursue a
civil action against the employer. Such
misconduct is tantamount to an intentional
tort, and civil actions based thereon are not
barred by the exclusivity provisions of the
Act. Because . . . the injury or death caused
by such misconduct is nonetheless the result
of an accident under the Act, workers'
compensation claims may also be pursued.
There may, however, only be one recovery
.
Woodson, 329 N.C. at 340-41, 407 S.E.2d at 228.
In
Woodson, a workers' compensation claim had been filed, yet
it had not been ruled upon because the claimant had “specifically
requested that the Industrial Commission not hear her case until
completion of [her civil action].”
Woodson, 329 N.C. at 336, 407
S.E.2d at 226. It is not clear from
Woodson that a claimant would
be allowed to file a Form 21 Agreement with the Industrial
Commission and begin to receive compensation, while still being
entitled to file a civil action for the same injury. What is clear
is that only one recovery may be had, and in the present case,
plaintiff has been receiving benefits.
Plaintiff correctly points out that receiving benefits does
not bar a suit by the employee for claims which rightfully falloutside the scope of the Workers' Compensation Act. Thus, we
discuss whether that is the case here.
As to the applicability of the Workers' Compensation Act to
the present facts, plaintiff asserts that her work as an assistant
manager of the restaurant did not create a risk that she would be
attacked by a co-employee as an expected incident of her
employment. We believe that
Wake County Hosp. Sys., 127 N.C. App.
33, 487 S.E.2d 789, controls the outcome here. That case states:
In North Carolina, courts have
consistently held that an intentional assault
in the work place by a fellow employee or
third party is an accident that occurs in the
course of employment, but does not arise out
of the employment unless a job-related
motivation or some other causal relation
between the job and the assault exists.
Id. at 39, 487 S.E.2d at 792
. In
Gallimore, 292 N.C. at 404, 233
S.E.2d at 532-33, our Supreme Court discussed this causal relation:
[T]he controlling test of whether an injury
“arises out of” the employment is whether the
injury is a natural and probable consequence
of the nature of the employment. A
contributing proximate cause of the injury
must be a risk to which the employee is
exposed because of the nature of the
employment. This risk must be such that it
“might have been contemplated by a reasonable
person familiar with the whole situation as
incidental to the service when he entered the
employment. The test 'excludes an injury which
cannot fairly be traced to the employment as a
contributing proximate cause and which comes
from a hazard to which the workmen would have
been equally exposed apart from the
employment. . . .'” In other words, the
“'causative danger must be peculiar to the
work and not common to the
neighborhood. . . . .'”
Id. (citations omitted). The causal relationship in the
Wake County Hosp. Sys. case was
supported by the facts that the employee was “abducted from the
employee parking lot, she was assaulted and killed on an adjacent
street, she was carrying work materials, and the assailant was a
co-employee.”
Wake County Hosp. Sys., 127 N.C. App. at 39, 487
S.E.2d at 792
. Relying on
Culpepper v. Fairfield Sapphire Valley,
93 N.C. App. 242, 377 S.E.2d 777,
aff'd, 325 N.C. 702, 386 S.E.2d
174 (1989), which stated that “course of employment” included the
employer's premises and may extend to adjacent premises or roads,
this Court in
Wake County Hosp. Sys. found that the facts were
sufficient to show a causal relationship between the employee's
employment and her death, and thus would be compensable under the
Workers' Compensation Act.
Wake County Hosp. Sys., 127 N.C. App.
at 39-40, 487 S.E.2d at 792
-93.
Regardless, the claimant in that case made the argument that
the employee could still maintain a civil action for negligent
hiring and retention against the hospital.
Id. at 40, 487 S.E.2d
at 793. This Court noted that the remedies afforded by the act
were exclusive per N.C. Gen. Stat. § 97-10.1, precluding claims for
ordinary or willful and wanton negligence, but that there was an
exception under the
Woodson case for injuries that were the result
of intentional conduct which the employer knew was substantially
certain to cause serious injury or death. The Court stated,
“[e]mployees have not been permitted to recover damages from an
employer in a
Woodson claim for injury or death resulting from
negligent hiring or retention.”
Id. The Court continued: Here, the only allegations contained in the
complaint . . . that could possibly be
construed as asserting a
Woodson claim were
that the Hospital hired a laundry employee
with a relatively minor criminal record, and
failed to fire that employee even though it
had knowledge that he had engaged in sexual
relations with other hospital employees at
work, knew he had a violent temper, and had
knowledge of his alleged but unproven
altercations with female co-employees in which
no one was injured. Though these allegations
may be sufficient to allege that the Hospital
was negligent in hiring and retaining
[assailant], the allegations are insufficient
to allege conduct on the part of the Hospital
substantially certain to cause injury or death
and, therefore, do not meet the stringent
requirements of
Woodson. Without a
Woodson
claim, workers' compensation is the only
remedy available in this case; any other
action is barred as a matter of law.
Wake County Hosp. Sys., 127 N.C. App. at 40-41, 487 S.E.2d at 793
.
The facts in the present case clearly fall within the realm of
the
Wake County Hosp. Sys. Indeed, they fit it much better.
Contrary to plaintiffs' contention, the facts show that the injury
to Mrs. Caple arose out of her employment because of the causal
relation between her job and the assaultive conduct. She was the
night manager. Her duties as such were, among others, to take the
money out of the registers, count it, and then put it into the
safe. Usually most of the employees would be gone at this time,
save the night porter. It is certain that getting robbed was a
risk that “'might have been contemplated by a reasonable person
familiar with the whole situation as incidental to the service[.]'”
Gallimore, 292 N.C. at 404, 233 S.E.2d at 532-33.
Her allegations also fail to support a
Woodson claim. Shealleges that defendants failed to investigate Fields' application,
and as a result he assaulted her during the robbery causing her
severe emotional distress. As in
Wake County Hosp. Sys., such
conduct, at best, only shows that defendants were negligent in
hiring and retaining Fields. It would still be insufficient to
allege “conduct on the part of [defendants] substantially certain
to cause injury or death and, therefore, [does] not meet the
stringent requirements of
Woodson.”
Wake County Hosp. Sys., 127
N.C. App. at 41, 487 S.E.2d at 793
. Defendants had no indication
during the three weeks of Fields' employment that he would commit
such a crime.
See Stanley v. Brooks, 112 N.C. App. 609, 436 S.E.2d
272 (1993),
disc. review denied, 335 N.C. 772, 442 S.E.2d 521
(1994) (Employers generally have no duty to perform criminal record
checks and a presumption exists that an employer uses due care in
hiring its employees.).
Plaintiffs next argue that
Hogan v. Forsyth Country Club Co.,
79 N.C. App. 483, 340 S.E.2d 116,
disc. review denied, 317 N.C.
334, 346 S.E.2d 140-41 (1986), stands for the proposition that
negligent hiring by an employer resulting in emotional injury is
not covered under the Workers' Compensation Act and thus dictates
a different result in the case
sub judice. In that case this Court
stated:
Although the Act eliminated negligence as a
basis of recovery against an employer, the Act
covers only those injuries which arise out of
and in the course of employment. An injury
arises out of the employment “when it is a
natural and probable consequence or incident
of the employment and a natural result of oneof its risks, so there is some causal relation
between the injury and the performance of some
service of the employment.”
The emotional injury allegedly suffered
by [plaintiff], resulting from [co-employee's]
sexual harassment, [was not] a “natural and
probable consequence or incident of the
employment.”
Hogan, 79 N.C. App. at 496, 340 S.E.2d at 124.
Plaintiffs rely on
Hogan for the proposition that negligent
hiring by an employer resulting in emotional injury is not covered
under the Act. While emotional damage might not be a natural or
probable consequence of working at a fast food restaurant, robbery
is a risk that is incidental to the service of a night manager who
counts money before placing it in a safe. The night porter was
hired to attempt to reduce just such a risk. The act does cover
emotional distress if it is a natural consequence of the job, as in
the case of a police officer suffering from depression or post-
traumatic stress disorder from the rigors of his job.
See Pulley
v. City of Durham, 121 N.C. App. 688, 468 S.E.2d 506 (1996).
Further, in
Jordan v. Central Piedmont College, 124 N.C. App. 112,
476 S.E.2d 410 (1996),
disc. review denied, 345 N.C. 753, 485
S.E.2d 53 (1997), this Court held that mental injuries
are
compensable under the Workers' Compensation Act, the same as
physical injuries so long as the injury meets the statutory
requirements.
Jordan, 124 N.C. App. at 118-19, 476 S.E.2d at 413-
14.
Plaintiffs' argument perverts the natural consequence/causal
relation requirement of the “arising out of the employment” test.
Hogan held that “[s]exual harassment is not a risk to which an
employee is exposed because of the nature of the employment but is
a risk to which the employee could be equally exposed outside the
employment.”
Hogan, 79 N.C. App. at 496, 340 S.E.2d at 124.
Basically, no one takes a job expecting to be sexually harassed.
However, robbery is a general risk when you count money at a
business at closing time.
For the reasons set forth above, the ruling of the trial court
is
Affirmed.
Judges TIMMONS-GOODSON and BIGGS concur.
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