Hensley v. Hillhaven

The majority opinion herein concludes that plaintiff's injury did not arise out of her employment because plaintiff's injuries arose out of an assault by a person who was not employed by defendant-employer. It is uncontroverted that plaintiff's injuries occurred within the course of her employment. The general rule cited by the majority is that assaults to employees do not arise out of the employment unless there is a peculiar risk to the employee or the injury can be fairly traced to the employment as a contributing proximate cause. Gallimore v.Marilyn Shoes, 292 N.C. 399 (1977). Gallimore is distinguishable from the instant case in one important respect. The employee inGallimore was kidnapped from a mall parking lot; consequently, she was not on the premises owned or controlled by her employer. The risk to the employee in Gallimore was the same as the risk of any other mall patron using the parking lot. The employee's injury in Gallimore did not occur within the course of her employment.

I believe, based upon the facts of this case, that plaintiff's injury was a natural and probable consequence of the nature of her employment and was proximately caused by a risk to which plaintiff was exposed because of the nature of her employment. Plaintiff worked the second shift (from 2:45 p.m. to 11:00 p.m.) at Hillhaven Nursing Home. Hillhaven was open to the public at all hours of the day. The only open entrance and exit to the facility after 7 p.m. was the door leading to the parking lot. On May 26, 1995, as plaintiff stepped from the building to the parking lot shortly after 11:15 p.m., someone drove into the parking lot near her; approached her and began to ask questions about the nursing home. Plaintiff believed that the person talking to her was a welcomed visitor; therefore, she stopped and attempted to be as helpful as possible as she had always done when approached by visitors in the past. When plaintiff began walking to her car, the visitor grabbed her shoulder bag and dragged plaintiff to the pavement. Plaintiff sustained injuries to her back, neck, arm and leg as a result of the assault. Plaintiff was unable to work as a result of her injuries from June 4, 1995 and continuing.

Plaintiff's employment placed her in a position where she encountered strangers who needed information or directions. Plaintiff was expected by her employer to be polite to visitors and to assist them in any way she could. Plaintiff's employment caused her to come into contact with persons who might be visiting the facility late at night. Plaintiff's employment caused her to treat people she encountered in defendant-employer's parking lot at night as welcomed visitors rather than taking reasonable precautions when dealing with strangers. This case is similar toCulpepper v. Fairfield Sapphire Valley, 93 N.C. App. 242 (1989), where a cocktail waitress was assaulted after she stopped to help a stranded motorist whom she recognized as a customer of the place where she worked. The court awarded compensation to plaintiff.

For the foregoing reasons, I respectfully DISSENT from the majority opinion herein.

S/ ___________________ BERNADINE S. BALLANCE COMMISSIONER

BSB:md

The undersigned have reviewed the Award based upon the record of the proceedings before the deputy commissioner.

The appealing party has shown good grounds to reconsider the evidence. However, upon much detailed reconsideration of the evidence, the undersigned reach the same facts and conclusions as those reached by the deputy commissioner with some minor modifications and additions. The Full Commission, in their discretion, have determined that there are no good grounds in this case to receive further evidence or to rehear the parties or their representatives, as sufficient convincing evidence exists in the record to support their findings of fact, conclusions of law, and ultimate order.

2. Plaintiff was hired by defendant as a licensed practical nurse working 3:00 p.m. until 11:00 p.m., or until such time as plaintiff's duties were complete.

3. On May 26, 1995, at approximately 11:30 p.m., plaintiff and a co-worker had finished their work shift and were in the process of leaving the defendant's premises.

4. The two left the defendant's building through a designated entryway leading to the defendant's parking lot so that they could go to their respective vehicles. This was the only door to the facility open to the public and staff at that hour of the evening.

5. Just outside the doorway, plaintiff's co-worker stopped briefly to light a cigarette. There is no evidence that plaintiff unreasonably delayed in leaving her place of work. At approximately the same time, a vehicle pulled up to the entrance and an unidentified man got out of the car and approached plaintiff and her co-worker. This unidentified individual engaged plaintiff in some brief conversation and the plaintiff, assuming the individual was a visitor to the facility, politely responded.

6. Suddenly, the man grabbed the strap of plaintiff's purse and tried to take it from her. Plaintiff instinctively held on to her purse, causing the assailant to pull even harder. During the assault, plaintiff was pulled forward and onto the ground. She was dragged on the ground a short distance toward the assailant's car. Plaintiff released her grip on the purse, and the bag pulled free from her arm. The assailant and his accomplice(s) fled the defendant's parking lot. Plaintiff did not know her assailant, nor is there any reason to believe she was a specific target of attack.

7. The defendant's facility is located on Victoria Road in Asheville in the general area of Memorial Mission Hospital. There are other buildings in closer proximity to the defendant which are predominantly used as professional offices. At the time of plaintiff's assault, these businesses had completed their work day and their parking lots were empty.

8. At the time of plaintiff's assault, it was dark, and defendant's parking lot was dimly lit. The parking lot was bordered by thick shrubbery and vegetation. Defendant had no security personnel on staff to patrol the parking lot and grounds. Access to the parking lot was not restricted.

9. Following the assault, the Asheville Police Department was contacted and a supervisor for defendant completed an "Account Information" form. The Account Information form indicated that plaintiff suffered bruises and abrasions. Plaintiff further stated at the initial hearing that shortly after the assault, she began to experience pain in her back, neck, arms and legs.

2. Assaults to employees do not arise out of the employment unless it can be said that there was a peculiar risk to the employee or the injury can otherwise be fairly traced to the employment as 292 N.C. 399 (1977). Even though plaintiff a contributing proximate cause. Gallimore v. Marilyn's Shoes,292 N.C. 399, 233 S.E.2d 529 (1977). Even though plaintiff was in the employer's parking lot at the time of the assault, there is insufficient convincing evidence for the undersigned to be able to conclude that the assault arose out of her employment with the employer. The mere time of day, or the fact that plaintiff is female and may work with females, does not convincingly prove that her risk of assault was any greater than that of the general public. The undersigned therefore reach the conclusion that the credible, convincing evidence shows that the risk of assault on this employee was essentially one common to the neighborhood and was not peculiar to or affected by her employment. Gallimore, Id at 405.

3. Plaintiff's claim, therefore, is not compensable under the provisions of the North Carolina Workers' Compensation Act. N.C. Gen. Stat. § 97-2(6).

2. Each side shall bear its own costs.

This case is ORDERED REMOVED from the Full Commission docket.

This the 27th day of January 1998.

S/ _________________ J. HOWARD BUNN, JR. CHAIRMAN

CONCURRING:

S/ ______________________ LAURA KRANIFELD MAVRETIC COMMISSIONER

DISSENTING:

S/ ______________________ BERNADINE S. BALLANCE COMMISSIONER

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