DAVID LEE HARRIS,
Defendant
Appeal by plaintiff from order entered 27 November 2000 by
Judge Orlando F. Hudson, Jr. in Vance County Superior Court. Heard
in the Court of Appeals 6 June 2002.
Harvey D. Jackson for plaintiff-appellant.
Bailey & Dixon, L.L.P., by Dayatra T. King, for defendant-
appellee.
CAMPBELL, Judge.
On 21 July 1998, plaintiff filed the instant action in Vance
County Superior Court alleging that defendant's negligent operation
of an automobile in which plaintiff was a passenger caused an
accident that resulted in injuries to plaintiff. On 3 August 1998,
the summons and a copy of the complaint were returned unserved on
defendant, for the stated reason that defendant no longer lived at
the address indicated on the summons. On or about 17 August 1998,
Nationwide Mutual Insurance Company (“Nationwide”) appeared on
behalf of the allegedly uninsured defendant and filed a motion todismiss plaintiff's action on the grounds of insufficiency of
process, insufficiency of service of process, and lack of personal
jurisdiction. The record does not contain a ruling on this motion.
On 15 March 1999, Nationwide filed a motion for summary judgment,
which was withdrawn on 27 April 1999. On 16 October 2000,
Nationwide filed an answer admitting defendant's negligence but
denying that his negligence resulted in the injuries allegedly
received by plaintiff. Nationwide also moved to dismiss the action
for lack of subject matter jurisdiction based on the exclusivity
provisions of the North Carolina Workers' Compensation Act. See
N.C. Gen. Stat. § 97-10.1 (2001). The case was tried at the 30
October 2000 Civil Session of Vance County Superior Court.
Plaintiff's evidence at trial tended to show that he and
defendant were co-workers at Southern Quilters, a manufacturer of
pillowcases and bed comforters. On the morning of 22 November
1996, plaintiff's work shift ended earlier than scheduled.
Plaintiff asked defendant for a ride home. Defendant responded
that he could give plaintiff a ride home but that he had “some
business to take care of” before they left. Plaintiff then waited
in the break room for defendant for approximately twenty to twenty-
five minutes. Thinking defendant had left, plaintiff went outside
to the parking lot, which was owned and operated by Southern
Quilters, to find another ride home. Plaintiff saw defendant inthe parking lot speaking with another fellow employee. After
defendant finished his conversation, he approached plaintiff and
the two of them got into defendant's car. Defendant then drove his
car into the vehicle being operated by the individual with whom he
had just been talking. Plaintiff testified that he sustained
injuries to his neck and back in the collision and that his
injuries resulted in medical expenses, loss of income and other
related damages.
At the close of plaintiff's evidence, Nationwide moved for a
directed verdict on the grounds that plaintiff's evidence
demonstrated as a matter of law that his action against defendant
was barred by the exclusivity provisions of the Workers'
Compensation Act (“the Act”) and therefore the trial court lacked
subject matter jurisdiction over the action. The trial court
agreed and dismissed plaintiff's action due to a lack of subject
matter jurisdiction. Plaintiff appeals.
The sole issue on appeal is whether the trial court erred in
dismissing the action for a lack of subject matter jurisdiction
based on the exclusivity provisions of the Act. For the following
reasons, we affirm the trial court's dismissal of plaintiff's
action.
“Whenever it appears by suggestion of the parties or otherwise
that the court lacks jurisdiction of the subject matter, the courtshall dismiss the action.” N.C. R. Civ. P. 12(h)(3) (2001). Thus,
“[a]n objection to subject matter jurisdiction may be made at any
time during the course of the action.” Vance Construction Co. v.
Duane White Land Corp., 127 N.C. App. 493, 494, 490 S.E.2d 588, 589
(1997).
For an injury to be compensable under the Act, the employee
must show that the injury was caused by an accident arising out of
and in the course of the employment. N.C. Gen. Stat. § 97-2(6)
(2001); Gallimore v. Marilyn's Shoes, 292 N.C. 399, 402, 233 S.E.2d
529, 531 (1977). Injuries incurred by an employee in the course of
employment due to the negligence of a co-employee fall within the
provisions of the Act. Pleasant v. Johnson, 312 N.C. 710, 713, 325
S.E.2d 244, 247 (1985). “[T]he rights granted an injured employee
under the Act are the exclusive remedy in the event of the
employee's injury by accident in connection with the employment.”
Reece v. Forga, 138 N.C. App. 703, 705, 531 S.E.2d 881, 883 (2000);
N.C. Gen. Stat. § 97-10.1. The exclusive jurisdiction of such
cases is statutorily conferred upon the Industrial Commission.
Lemmerman v. A.T. Williams Oil Co., 318 N.C. 577, 350 S.E.2d 83
(1986). Therefore, an employee who sustains an injury by accident
arising out of and in the course of employment cannot maintain a
common law action against a co-employee whose negligence caused the
injury. Pleasant, 312 N.C. at 713, 325 S.E.2d at 247. Within the meaning of the Act, an accident is an “'unlooked
for and untoward event which is not expected or designed by the
person who suffers the injury.'” Adams v. Burlington Industries,
Inc., 61 N.C. App. 258, 260, 300 S.E.2d 455, 456 (1983) (citation
omitted). It is clear that the alleged injuries sustained by
plaintiff in the automobile collision in the instant case are
injuries by accident within the purview of the Act. The remaining
inquiry is whether the accident was one arising out of and in the
course of plaintiff's employment.
“The phrases 'arising out of' and 'in the course of' one's
employment are not synonymous but rather are two separate and
distinct elements both of which a claimant must prove to bring a
case within the Act.” Gallimore, 292 N.C. at 402, 233 S.E.2d at
531. “In general, the term 'in the course of' refers to the time,
place and circumstances under which an accident occurs, while the
term 'arising out of' refers to the origin or causal connection of
the accidental injury to the employment.” Id. As a general rule,
“an injury by accident occurring while an employee travels to and
from work is not one that arises out of or in the course of
employment.” Royster v. Culp, Inc., 343 N.C. 279, 281, 470 S.E.2d
30, 31 (1996). However, “[a] limited exception to the 'coming and
going' rule applies when an employee is injured when going to orcoming from work but is on the employer's premises.” Id.
(See footnote 1)
“'[I]njuries sustained by an employee while going to and from his
place of work upon the premises owned or controlled by his employer
are generally deemed to have arisen out of and in the course of the
employment within the meaning of the Workmen's Compensation Acts
and are compensable provided the employee's act involves no
unreasonable delay.'” Maurer v. Salem Co., 266 N.C. 381, 382, 146
S.E.2d 432, 433-34 (1966) (quoting Bass v. Mecklenburg County, 258
N.C. 226, 232, 128 S.E.2d 570, 574 (1962)).
In Maurer, an employee (“Maurer”) had arranged to ride home
after work with one of his fellow employees (“Caudle”). At the end
of the workday, Maurer and Caudle went to Caudle's car, which was
located in the employer's parking lot. The car would not start and
the two of them spent approximately twenty to twenty-five minutes
attempting to get the engine started. Finally, they released the
brakes and attempted to start the engine by pushing the vehicle.
During this attempt, the forward movement of the vehicle caught and
injured Maurer. As a result, Maurer filed a claim for compensationwith the North Carolina Industrial Commission (“the Commission”).
The Commission concluded that Maurer had suffered an injury by
accident arising out of and in the course of his employment and
awarded compensation. On appeal, the Supreme Court concluded that
the delay between the time Maurer left the employer's plant and the
time Maurer was injured was not unreasonable because it was
“devoted exclusively to their efforts to start the vehicle,” in an
attempt to leave the employer's premises. Id. at 382, 146 S.E.2d
at 433. Thus, the Court held that Maurer's injury fell “within the
exception to the general rule that injuries in travel to and from
work are not compensable.” Id.
In Harless v. Flynn, 1 N.C. App. 448, 162 S.E.2d 47 (1968),
the plaintiff was injured in an accident in the parking lot owned
and maintained by her employer. The accident was caused by the
negligence of the plaintiff's co-employee while both parties were
in vehicles that were leaving the employer's premises during a
lunch break. This Court set forth the law on the subject as
follows:
With respect to time, the course of
employment begins a reasonable time before
actual work begins, and continues for a
reasonable time after work ends, and includes
intervals during the work day for rest and
refreshment . . . . With respect to
circumstances, injuries within the course of
employment include those sustained while 'the
employee is doing what a man so employed mayreasonably do within a time which he is
employed and at a place where he may
reasonably be during that time to do that
thing.' . . . And an employee may be in the
course of his employment when he is on the way
to the place of his duties, leaving the place
of his duties at the end of the day, or
leaving upon learning that there was no work
for him to do.
Harless, 1 N.C. App. at 456, 162 S.E.2d at 52-53 (emphasis in
original) (internal citations omitted). The Court then concluded
that the plaintiff was injured during the course of her employment
since leaving the employer's premises during lunch was an activity
permitted by the employer and one in which other employees
customarily participated. In addition, the Court concluded that
the plaintiff's injury was attributable to the heightened risk
present when large numbers of employees were attempting to leave
the employer's parking lot. Accordingly, the Court held that the
plaintiff's injuries arose out of and in the course of her
employment, thus barring the plaintiff's common law action against
the defendant.
In the instant case, plaintiff was allowed to leave his place
of employment early because there was no work for him to do. As a
result, plaintiff was without a ride home. Plaintiff successfully
secured a ride home from defendant, but was told that he would have
to wait for defendant to “finish up some business.” Plaintiff
waited in the break room for defendant for twenty to twenty-fiveminutes, then proceeded out to the parking lot, where he waited for
defendant for a few more minutes while defendant finished a
conversation with another fellow employee. In sum, the evidence
tends to show that plaintiff waited for a ride for approximately
thirty minutes after his work shift ended. However, under the
decisions in Maurer and Harless, it is clear that the length of
time between an employee getting off work and the employee leaving
the employer's premises is not the determinative factor. Rather,
the conduct of the employee during the delay must be judged to
determine whether “the employee [was] doing what a man so employed
may reasonably do[.]” Harless, 1 N.C. App. at 456, 162 S.E.2d at
53. Here, the evidence shows that plaintiff's conduct after his
work shift ended was devoted exclusively to looking for a ride home
and then waiting for that ride to materialize. There is no
evidence that plaintiff's decision to wait for defendant was
unreasonable. The fact that other alternatives may have existed
that would have reduced plaintiff's delay in leaving the employer's
premises, such as asking another fellow employee for a ride or
calling his normal ride to inform them he was ready, does not by
itself render plaintiff's conduct unreasonable. Under the facts
and circumstances of this case, we find that plaintiff acted as “a
man so employed may reasonably” act in his efforts to leave his
place of employment following his work shift. Id. Therefore, weconclude that plaintiff's alleged injuries arose out of and in the
course of his employment. Accordingly, plaintiff's remedy falls
within the exclusivity provisions of the Workers' Compensation Act,
with jurisdiction statutorily conferred upon the Industrial
Commission, and plaintiff may not maintain this common law action
against defendant. Thus, we affirm the trial court's dismissal of
plaintiff's action.
Affirmed.
Judges MARTIN and TIMMONS-GOODSON concur.
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