Blaw-Knox Foundry & Mill MacHinery, Inc. v. Dacus
505 N.E.2d 101
Ind. Ct. App.
1987
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*1 MILL FOUNDRY & BLAW-KNOX

MACHINERY, INC., Appellant

(Defendant Below), DACUS, al., Appellee et Thelma (Plaintiff Below).

No. 2-785A231. Appeals of Court of District. Second March Rehearing Denied June Schreiner, Hammond, appel- E. for

James lant. Merriliville, Pera, appellee. R. for

John SHIELDS, Judge. Presiding Machinery Foundry & Mill appeals Inc. the Industrial Board decision awarding Compensation bene- Dacus, employee Thelma the wife of fits to Ducas. Charles We affirm.

DISCUSSION p.m. August 11:20 on approximately

At Dacus, 28, 1979, employee an Charles Blaw-Knox, gunshot fatal sustained by an unknown assailant inflicted wounds parking lot in Blaw-Knox's completing his work his car after going to at 4440 Rail-' foundry located shift at Chicago. The issue on out Dacus's death arose appeal is whether of his in the course of and dependents, must employee, An or his arose employee's accident demonstrate the "out of and (Burns ment", Ann. 22-8-2-2 Ind.Code § eligible for Workmen's Repl.1986) to be phrases in Indiana. The "in the employment and "out of" the employment have course requirements must be meanings and both compensation is awarded. fulfilled before probe into portends "'Out partic- aof causation and the particular harm and a ular accident charged. sought to be *2 primary inquiry The is directed toward "(aln accident occurs in the course of em question of whether the accidental ployment when it place takes within the injury or outgrowth death was the period of employment, place at a where the employment, whether it was due to the employee may be, and while he employment, whether it was work-in- fulfilling is the duties of his employment, duced. Generally stated, the rule seems engaged or is in doing something incidental to be that an accident arises out of the thereto." Wayne Buick, Adams Inc. v. employment when there is a causal con- (1981), Ference Ind.App., 421 N.E.2d nection between it and performance 735; see Indiana Michigan & Electric Co. of some service of the employment. A (1986), v. Morgan 494 N.E.2d 991. causal connection is established when the Indiana courts previously have held the accident is shown to have arisen out of a period encompasses a rea risk which a person reasonable might sonable time before and after comprehend as incidental to engages in work. Goldstone v. Kozma ment, or where the evidence shows an (1971), 149 Ind.App. 304; 274 N.E.2d incidental connection between conditions (1958), Reed v. Brown Ind.App. 75, 129 152 under which the employee worked and N.E.2d They have also confirmed em resulting or death. The ployer-controlled parking lots are exten phrase, of, requires, on the sions of employer's operating premises, hand, other investigation into the (1979), Ward v. Tillman Ind.App. 626, 179 work itself and the breadth of grasp. its 1003; 386 N.E.2d Donahue v. Youngstown principal The emphasis upon the time Sheet (1985), Ind., and Tube place elements, and so 'in the course place and thus a where an employee of' the employment might be taken to may reasonably Finally, be. the courts 'during' mean (foot- the employment." have held employees doing are something omitted) *3 working lighted in after hours a fenced and through risk or hazard inherent ries employee parking injury lot is an which Rather, peculiar employment. in or to his arose out of and in the course of the em- gen- a risk to the Dacus encountered which ployment. I cannot to such an subscribe and, exposed public equally was and is eral overly unwarranted broad construction therefore, necessary the of the Workmen's statute. employment death and his between Dacus's majority's I believe that the reliance is absent. (1983) upon Skinner v. Martin 1st Dist. review, Cognizant inappropriate. of our standard of Skinner, during In altercation occurred the the Board's find in the facts for premises a coffee break on the and arose necessary causal relation- conclusion not return precisely because Skinner would fenced, killed in a ship exists. Dacus was job upon request. to his task adjacent 4440 Rail- lighted parking lot clearly therefore arose as a result of Skin Chicago which was job perform his refusal to ner's duties or and after except locked an hour before in Subsequently them. Martin v. Powell p.m., changes. He was killed at 11:20 shift (1985) Ind.App., 477 N.E.2d 1st Dist. his shift ended. The hours of after panel apply the same declined to the "aris presence employment necessitated ing principles of to a situa out of" Skinner daily in the lot on a work week personal involved a incident as tion which at the late hour. The basis incident. opposed to a work-related providing lot reason- efforts in the secured us, the does In the case before evidence ably support the Board's determination the shooting incident was not disclose that the danger, especially con- area was a Because of the cireumstane- work related. sidering the hours of his contrary. es, appear quite to the it would event, I any In do not believe facts, gen- fact the coupled These with the decision here. majority ease lot, public access to the eral did not have fact, Mosbey in no one had access to the lot In Co. v. Olinger Construction (1981) Ind.App., 2d Dist. intervals, reasonably sup- except at limited risk or adopted positional a majority the risk to ports the Board's determination specifically test. The rule was "but for" definitely exposed was Dacus was traveling employees. It would limited to Ac- higher general public. than that however, now, majority seem that cordingly Board's determination Da- employ- to all to extend that doctrine seeks employ- arose out of his cus's risk "out that an accident arises ees and to hold ment, ie., it a risk a any time "the comprehend as inci- prudent person might place the accident occurs be- ee is at the and, work, specifically, was a dental to the employment." cause of his is sus- risk inherent reason, my I consider 915. For this inferences drawn tained the reasonable _ dissenting opinion Olinger to warrant undisputed from the facts. my dissent here. and necessitate Judgment affirmed. and direct I reverse the award would it be set aside. BUCHANAN, J., coneurs.

SULLIVAN, J., dissents, with opinion. notes incidental to their employment going Small, B. Law leaving the place work they are still (1950). 6.1§ on their employer's premises. Ward v. An award of the Board upon based com Tillman, supra, 1003; see Se petent evidence will not be reversed on gally (1985), v. Ancerys Ind.App., 486 appeal. It duty is the of the Board to N.E.2d 578. weigh the evidence and draw reasonable The fact Dacus had just finished inferences from the facts. In order to his work shift when he fatally shot in reach a contrary conclusion may not lot the In disregard any reasonable inference drawn dustrial Board's determination Dacus's by the Board from the facts the evidence death occurred in the course of employ prove. tends to When reviewing the ment. record, we required are disregard all evidence which is unfavorable to the find ings II. of the Board and only consider those facts and those reasonable inferences phrase The "arising out of" employ findings. such Lincoln v. ment origin refers to the and cause of the Whirlpool Corporation (1972), 151 Ind. injury. (1956), Armstead v. Sommer 126 App. 190, Ind.App. 131 N.E.2d 340. For an acci dent to arise out of there I. must be a between the phrase The "in the course of em employment and the injury. However, ployment" time, such a connection is established when the refers to the circumstances under which the accident1 accident arises out of a risk which a reason place. took (1985), Skinner v. Martin Ind. ably prudent person might comprehend as App., 455 N.E.2d 1168. More specifically, incidental to the work. It is not necessary dispute Blaw-Knox does not Dacus' death was an accident. expected SULLIVAN, dissenting. Judge, should have been that the Martin, foreseen. or respect Although I concur with to Issue at 1170. I, I dissent as to Issue II. can only interpretation be argues because Dacus was placed upon majority's holding is that assailant for un- killed an unknown night any injury sustained late at reasons, inju- he did not sustain his known