*1 SUPREME COURT IN THE Burlingtоn Industries Roberts ROBERTS, ROBERTS, WIDOW; HUDSON ROSEMARY HUDSON ROSEMARY ROBERTS, MINOR DAUGH JESSICA GAY AD LITEM OF GUARDIAN ROBERTS, DECEASED, Employee/Plaintiffs LEE TER OF TIMOTHY INC., Employer, INDUSTRIES, and LUMBERMEN'S v. BURLINGTON CO., Carrier, Defendants MUTUAL CASUALTY No. 387PA87 (Filed 1988) February compensation during emergency as- § Master and Servant 55.5— workers’ —death arising employment of stranger injury not out sistance to — by he designer who was struck a vehicle as a furniture The death of employee’s injured pedestrian duties had no connection to the an who assisted trip returning did not employer’s while home from a business his business or designer’s acts did benefit out of his since arise extent, designer’s employment in- appreciable did not employer to an and the by assisting injured a would be struck car while an creasе the risk that he stranger with no to the relation dissenting. Justice Martin 7A-31 discretionary pursuant review N.C.G.S. On § 126, 356 reported at 86 N.C.
decision Court (1987), and award of the opinion which reversed plaintiffs’ that denied claim North Carolina Industrial Commission Supreme workers’ Heard compensation. for December 1987. Parks, Clifford, H. by Harry Clendenin &
McNairy, III, Clendenin, plaintiff-appellees. for Moore, Jr., Cowan, Helms Mulliss & J. Donald Smith Wyatt, Caroline H. defendant-appellants.
WHICHARD, Justice. home from business employee, returning Decedent while he an injured was a car killed as assisted trip, struck employee’s had no duties or his pedestrian who connеction employer’s is whether his business. issue death arose out under compensable and thus was the Workers’ Act, We 97-1 et hold did not. seq. N.C.G.S. that it §
Decedent, Roberts, Timothy Lee defendant employed Industries, (Burlington) as a furniture designer Inc. IN THE SUPREME COURT *2 Division in sells ex- Lexington. Burlington its Furniture furniture retailers; clusively to decedent’s duties thus did include not did, however, He public. contact with the make occasional general visits to retail furniture stores to inspect displayed furniture.
On 18 private November decedent drove his car from his home in to Regional Thomasville the Greensboro He Airport. there, four they met other made a busi- employees and Robbinsville, ness trip Burlington’s plant in North Carolina. They returned 5:30 p.m. airport to Greensboro at and left around 5:45 in p.m. separate cars.
The record contains no evidence of decedent’s activities dur- the next and a half. ing parties hour stipulated that Burling- ton sold furniture to two retail stores near located the scene of On accident. the date both question open stores were from 5:45 7:30 p.m. to and were p.m., displaying Burlington’s both fur- niture.
At 7:30 approximately p.m., decedent drove down the en- trance 1-85 ramp toward South at the Holden Road Exit arrived, Greensboro. Moments before he car had struck a pedestrian who was walking down the ramp. David Smith was the person first arrive at the scene. stopped Decedent also and of- scene, fered to assist contacting the authorities. He left the Patrol, notified the Highway eight returned in five to minutes.
Decedent suggested then Smith ramp that move up warn oncoming traffic. Decedent positioned himself near pedestrian’s body in away order to direct cars from it. While standing pedestrian’s body, near the he was struck a car. He died at the scene from injuries thereby sustained.
Decedent’s benevolent acts received some attention from six media. industry At least and an newspapers magazine his reported tragic Three of death. these publications mentioned that decedent was employed by Burlington.
Decedent’s widow and daughter this action brought seeking workers’ compensation death benefits. Deputy Commissioner Shu- ping found that decedent was returning home his normal route from business trip and that the accident thus occurred in the concluded, however, course of He the ac- Burlington Industries he thus denied employment, and did arise out of cident following “findings on the conclusion He based this compensatiоn. of fact”: death, however, not arise out untimely did 2. Decedent’s rather, entirely arose but from employment; the same of voluntary commendable, humanitarian undisputedly —albeit to render good stopping of a citizen and
act [S]amaritan absolutely had stranger total apparent to an assistance designer as a furniture his duties relationship no rational only said which employer, nor was defendant-employer *3 than in- directly to outlets rather to its retail sold furniture any appreciably public, of the extent dividual members indirectly. thereby directly or whether benefited in- designer primarily 3. As decedent was a furniture sales, end of rather than the production, volved the obviously re- which did not business defendant-employer[’]s per- the same develop that he foster quire attempt with customers as would have potential sonal contacts and, then, force such customers members of its sales even members but public large; were rather, individual of the whom ex- of the retail outlets to it
representatives ordinarily clusively furniture who would themselves not sold any any with In personal have direct contact decedent. particular is no that individual regard there evidence aid, was attemрted to who himself an apparent that decedent was In- defendant-Burlington total a customer of stranger, only upon the nature dustries and based not above-described customers, ordinary but was of its that the same [individual] destitute, financially reasonably he it can be inferred that then, likely was not had never been nor would ... be a similarly absolutely no evidence customer thereof. There record either directed or en- defendant-employer of couraged employees general pub- its to assist members of the any or to take they lic that encountered distress otherwise general members so as to public direct action towards of thereby good foster will and its business interest. At individual], driv- time of to assist decedent was stopping [the vehicle, his own as to one the defendant- ing opposed IN THE SUPREME COURT as such and which could be identified employer[’]s specifically render aid stopped him as an employee thereof ha[d] [who] by a member of the any general public accident scene rather, asked specifically unless someone had passing; but him of his or he had otherwise the nature it, likely heroic act have re- volunteered decedent’s would [anonymous] stranger had he not been mained one of [an] killed, which he was as result of identified tragically some, all, as an stipulated newspaper but not article[s] Industries; however, in defendant-Burlington will toward undersigned, resulting good opinion for his is too remote and defendant-employer immeasurable] any appreciable, on this occasion to be considered of actions indirect, employer. even benefit to said Whether as matter should recover under the Workers’ public decedent policy good Act in order to foster similar acts of beyond Industrial Commission’s [S]amarit[an]ism authority grant. Commission, which as adopted to the full appealed
Plaintiffs and award. Com- Deputy opinion its own the Commissioner’s majority stating: mission summarized its activity in which was en- opinion, our members of of death was a risk to which at the time gaged *4 employ- equally exposed are outside general public ment. a natural or risk was not created designer. as a furniture of his
part Clay dissented. Commissioner The Court Appeals. to the Court of appealed then
Plaintiffs employment, arise out of the injury did held that v. Burling- Roberts the Commission. it reversed accordingly (1987). 126, Industries, S.E. 794 It 356 2d 86 App. N.C. ton a compensable which hold that line of casеs long acknowledged would risk “to which the from a cannot result injury Roberts employment.” from the exposed apart equally have been 135, 800. Industries, 2d at 86 at N.C. v. however, “found,” by decedent hazard encountered It 354
was not one to which general public equally exposed. Id. 136, 356 act, at S.E. 800. 2d at The selfless nature of decedent’s stated, the court made it “not something generally done all.” By action, Id. taking affirmative humanitarian decedent willingly exposed himself to “hazards to which general public is [not] Moreover, equally exposed.” Id. the publicity surrounding dece- dent’s benevolent acts benefited his emрloyer “by increasing the Id, 133, employer’s good will.” 356 at S.E. 2d 798. The court also noted that holding its would encourage humanitarian acts 136, and thus employers. benefit Id. at 356 S.E. 2d An opinion and award of the Industrial only Commission will be disturbed upon the basis a patent legal error. Hoffman Lines, Inc., 502, 505, (1982). Truck 306 N.C. 293 S.E. 2d 809 The legal error asserted here relates to the requirement that for by injury death to be compensable under the Workers’ Compen- Act, sation it arise must out of and in the course of employ- (10) (1985). 97-2(6), ment. N.C.G.S. injury “Whether an arose § out of and in the course of employment is a mixed question of law and fact, and where there is evidence to support the Commissioner’s findings in this we regard, are bound those findings.” Hoffman Lines, Inc., v. Truck 809-10, N.C. at 293 S.E. 2d at World, 329, 331, quoting Barham v. Food 300 N.C. 266 S.E. 2d (1980). Act,
As used in the Workers’ Compensation the phrase “aris ing out of the employment” refers to the origin or cause of the injury, accidental while the words “in the course of the employ time, ment” refer to the place, and circumstances under which an accidental occurs. Bartlett v. Duke University, 230, 233, (1973); 200 S.E. 2d 194-95 Nicholson, Robbins v. 234, 238, 188 interrelated, While often concepts out “arising of’ and “in the course of’ the employ ment are requirements, distinct and a claimant must establish to receive both compensation. Hoyle Isenhour Brick and Tile 248, 251, 306 N.C. 293 S.E. 2d
The Deputy Commissioner concluded that decedent’s death *5 by injury arose in the course of his employment, and the full Com- mission his adopted conclusion. Burlington does not dispute this conclusion. Whether the “arising out of the employment” require- has only ment been met thus is the issue presented. IN THE SUPREME COURT Burlington Industries injury
To determine
an
or death
accident arose
whether
necessary
the
is
to examine the
of
employment,
findings
out of
“it
Co.,
272, 274,
crucial facts.”
v. Bakeries
262 N.C.
specific
Perry
The
is
question
2d
basic
whether
a
v.
contributing
injury.
cause of
See Allred
Inc.,
554, 557,
Allred-Gardner,
117 S.E.
253 N.C.
2d
injury
An
an
while he is
acts for the
performing
to
employee
of
not аrise out of the
persons
benefit
third
does
extent.
employer
appreciable
unless the acts benefit
410, 412,
Co.,
132 S.E. 2d
260 N.C.
Lewis
Tobacco
(1963). “Basically,
compensable
upon
claim is
turns
whether
[a]
any
employer
whether the
acts for the benefit
his
solely
his
or whether
acts
extent
appreciable
of a
Guest v.
person.”
benefit or
or that
third
Iron &
purpose
own
(1955).1
448, 452,
However,
Co.,
241 N.C.
Metal
is
helping
effect of claimant’s
others
to advance
ultimate
“[i]f
work,
...
it
whether
his own
should
matter
employer’s
beneficiary
activity
a . . .
helpful
complete
immediate
Larson,
Id.,
A.
The
Workmen’s
1A
Law
stranger.”
quоting
27.21.
Compensation §
anyone other than
no
here contains
evidence
record
accidental death
surrounding his
in the events
decedent
involved
reveals,
as this record
any
So far
Burlington.
connection
had
We thus
solely
party.
of a third
for the benefit
decedent acted
arise
of the
See
employment.
that his death did not
out
hold
880.
compensability by an of an suffered while assist- instructions, ing stranger. his emplоyer’s Pursuant to the em- in that ployee case drove to the Greensboro fix a Airport pair to tubes, tires of flat on a truck. replacing After inner he and a fellow a filling they located station where asked the for operator some “free air” to inflate the tires. operator but agreed, employees while were filling the first tire he them push asked to a customer’s help They stalled car. complied they with request, and while were pushing car onto the highway an approaching severely injured car struck and Guest, claimant-employee. N.C. at 2d at We upheld the Commission’s award of compensation, explaining: co-employee
Plaintiff and his They were not customers. for asked and received permission get air. The free assistance extended filling station was operator for turn, the benefit their employer. the filling station operator requested plaintiffs aid in pushing off and starting car, his customer’s then blocking access to his gas pumps. Reciprocal courtesies and assistance were requested and ex- noteworthy tended. ... It that plaintiff, when he respond- assistance, toed the filling station operator’s request had not received the assistance needed to enable him complete his service to his employer. Plaintiff grounds had reasonable apprehend that his refusal to render the assistance re- quested him might well have resulted like refusal filling operator. station
Id. at
presented
pure
Decedent’s
employer’s
road” and bore
to his
interests. We
of the
no relation
actions,
that such
altruistic
with no actual bene-
purely
now hold
employment.
sup-
the
do not arise out of the
For
employer,
fit to
authority
jurisdictions,
following:
from other
see the
porting
(Me.
Services,
1982);
449 A.
362
Comeau v. Maine Coastal
2d
Co.,
364,
217
Application of the increased risk test here would not render decedent’s compensable. demise Decedent’s did employment not increase the risk he be would struck a car while shielding injured with no relation to the The stranger employment. risk was common neighborhood, to the work. peculiar
One was ground Appeals’ opinion application for the Court of doctrine, of the “positional injury risk” which holds that “[a]n arises out of employment if it would not have occurred but for the fact that employment the conditions and of obligations placed Larson, claimant in the where he was 1 A. injured.” (1984). Law Workmen’s 6.50 court noted § that “the conditions and obligations of employment [decedent’s] him in put he position where was killed.” Roberts v. Bur- Industries, 134, lington 86 at 356 S.E. N.C. 2d at 799. Court, however, This never applied has risk” “positional cases; rather, doctrine to “benefit party” of third has main- it tained the “employer benefit” In approach. Bartlett v. Duke University, we noted a Minnesota case in which the court held 359 v.
Roberts if, event, after the it injury employment that “an arises out injury has its source circumstances can be seen that Bartlett, him.” 284 N.C. employee’s employment placed which the 200 S.E. at v. General quoting Snyder Paper at 2d (1967). 376, 383, 748 “This Minn. 152 N.W. 2d We stated: 277 v. jurisdiction.” law in this Bartlett generality broad is not the Similarly, 284 200 S.E. 2d 196. Duke N.C. at University, may “a provide op- we have said that the convenient injury providing for the or death accident without portunity” Nicholson, 240, 188 281 S.E. 2d at cause. N.C. at Robbins him to require when an duties employee’s We have held that travel, journey are risks of the the hazards of the have 2d We Hinkle v. N.C. Lexington, caused accident is com- highway also stated that “an acting accident is if at the time pensable of some performance and in the the course of his Small, 581, 585, duty Hardy incident thereto.” howеver, Bartlett, we denied compensation eating while occurred choking for a death that that “eat- trip. explained We during out with a friend business injuries involving and that cases traveling” is not ing peculiar restaurant, from hotel to a “walking riding sustained while or [a] result from or which employer’s premises, while on the eating required where the place employer food at a eating tainted [an Bartlett, eat, . . . .” are not employee] pertinent *9 234-35, Here, merely placed the travel required 200 S.E. 2d at in- to rescue the opportunity to seize the decedent in a danger; aid created the decision to render jured pedestrian. His journey. risk was not a hazard of the liberally con- Act “should be The Workers’ should not be denied thereof strued to end that the benefits however, technical, “the interpretation”; narrow and strict upon a to attribute to employed cannot be rule of liberal construction and un- plain to the meaning foreign provision of the act Iron & Metal is couched.” Guest v. mistakable words in which it 599, Co., 452, Hosiery v. 241 85 S.E. 2d at Johnson quoting N.C. at (1930) 38, 40, 591, Co., v. Leath- Henry 593 199 153 N.C. (1950). 760, 477, 480, Co., 762-63 The Act 57 S.E. 2d 231 er N.C. v. Perry insurance benefits. general was not intended to establish 360 Co., 647,
Bakeries 262 136 S.E. 2d quoting N.C. at at Duncan Charlotte, 86, 91, 66 S.E. 25 grant To effectively here would compensation “arising remove the out of employment” requirement from the Act. See Bartlett v. Duke University, Snyder N.C. at 2d at citing Minn, (Peter- Co., General N.W. 2d Paper son, J., dissenting). Accordingly, the decision of the Court is reversed. The cause is remanded to that court with directions that it re- mand to the Industrial Commission for reinstatement opin- its ion and award denying compensation.
Reversed remanded. Martin
Justice dissenting. Ias do that law Believing of North Carolina requires Timothy conclusion that the death of Roberts arose out of his Industries, I with dissent from the hold- majority contrary. ing of the
In whether a determining death accident arosе out of the question basic employment, whether was a contributing injury. cause of the In this case the decision of the Appeals finding Court of that the death did arise out of the em- can be ployment supported upon two theories.
Employer
Theory
Benefit
In
v. Iron &
Guest
Metal
To it is indisputable that Burlington’s goodwill was by benefited the tragic events in question. This is demonstrated local regional newspapers that carried story. The Lexington Dispatch printed:
A for designer Burlington in Lexington Furniture killed on rain-slick 85 Thursday Interstate night after he stopped to direct traffic body around the of a pеdestrian who fatally had been injured moments before. Buckner,
John division personnel manager at Burlington, said this morning Roberts had worked as a furniture de- for signer Burlington July. since “It is to be a going tragic loss for I just us. do not know the facts ... at this time we are trying gather facts at this time.” The Thomasville newspaper printed: “Roberts was a graduate of Fieldale-Collinsville School and High Kendall School of Design Rapids, Grand Mich. He was as a employed furniture designer Burlington with Industries.” Similar articles appeared News, Record, Daily Greensboro the Greensboro and the High Point Enterprise.
Also, in the December issue of Today, Furniturе article appeared concerning 29-year-old this accident which stated: “A N.C., designer staff Furniture in Lexington, in the Samaritan, act of being good was struck and killed as he at- tempted lying busy aid a man on a interstate highway.” The article was of three columns and contained a stating, headline BURLINGTON’S TIM ROBERTS DESIGNER KILLED WHILE AIDING [ ]— Today publication Furniture a trade cir- generally Hurt Man. industry. culated throughout majority’s the furniture holding that these articles are too remote and too immeasurable to result benefit to Burlington simply this record. unsupported only The goodwill can have been benefited publications presenting its in heroic рroportions industry. public to the furniture
Employee At Risk theory, him employment places Under this where a claimant’s risk, injuries arising compensable. in a therefrom are *11 THE SUPREME COURT 362 IN Burlington Industries Roberts v. compen- in workers’ the scholars
This is sometimes referred
Larson,
Law
1 A.
The
risk doctrine.
positional
as the
sation
of
(1985).
Su-
The United States
6.50
Compensation
Workmen’s
§
Court,
Longshoremen’s
under the
in
an award
reviewing
preme
Act,
the view that
adopted
Compensation
and Harbor Workers’
they are
in
during
emergency,
acts
injuries
where
are sustained
in the emer-
employee
places
if the
compensable
employment
504, 95
483
Brown-Pacific-Maxon, 340 U.S.
L.Ed.
gency. O’Leary v.
(1951).
for his
waiting
employer’s
employee
O’Leary
The
when he saw or heard two
bus to take him from the work area
coast of Guam
beyond
reefs
a channel off the
standing
men
on the
in an effort to swim
He
into the water
signaling
help.
plunged
by the cur-
the channel
rescue the two men but was overcome
benefits,
of
approved
awarding
rent and drowned. The Court
The
employment.
arose out of the
Court
holding that
the death
by common law
stated that workers’
is not confined
compensation
held
The Court further
that
concepts
scope
may
risks оf the em-
attempt
a reasonable rescue
be one of the
very
I
be a
O’Leary
and so covered
the Act.
find
ployment
in our case.
convincing
argument
case in
of the claimant’s
support
law of
theory
stranger
at risk
is no
to the
relied upon
North
It was
compensation.
Carolina on workers’
Guild,
33,
57
App.
Court of
Felton v.
N.C.
Hospital
158,
value,
291 S.E.
307
2d
curiam without
per
precedential
aff’d
(1982).
121,
N.C.
tions
by his
required
where he was killed. He was
position
Asheville,
visit a furniture
and to do
plant
with
to
fly
Asheville. He was
required
so he had to
from Greensboro to
was while he was on his
airport.
drive himself to and from the
It
Winters,
way
Mr.
a
in a dan-
stranger,
home that he encountered
highway
required
on the
which
assistance from
gerous position
Mr.
was killed in
that assistance.
providing
others.
Roberts
an
existed and that Mr. Roberts
emergency
It is clear that
to be an
perceived
emergency.
the situation
ap-
made
famous
which is
pronouncement
Justice Cardozo
cry
rescue. The
of distress is
“Danger
to this case.
invites
plicable
Co., 232 N.Y.
Wagner
Ry.
the summons to relief.”
International
133 N.E.
Tim Roberts in
Here the act of
rescue of Mr. Winters was the child of the occasion.
going to the
were a result of his em-
Clearly
presence
Mr. Roberts’
and actions
I
quarrel
him in the
of risk.
have no
ployment placing
quire
105, 79 S.E. 2d
Lexington,
Hinkle v.
employment. E.g.,
State v. Powell
majority’s
here. The
aberrant
state-
Such is the case
danger
Mr.
render aid created the
ment that
Roberts’ decision to
contrary
only
law but to the facts and to human nature.
facts are
been
previously
that Mr. Winters had
struck
was that
highway.
danger
automobile and was
on the
lying
lay
another vehicle
as he
might
highway
strike Winters
on
injure
perhaps
injuries
and further
him or
even cause
to the oc-
of such other automobile. That is the
cupants
dangerous situation
which Mr. Roberts faced and which in the conduct of human af-
fairs cried out to him for rescue. The law
these reac-
recognizes
tracing
tions of the human mind in
conduct to its consequences.
reaction;
Mr. Roberts’ reaction was a normal
he did what was nat-
that Mr.
probable.
might
ural and
The risk
Roberts
be faced with
danger
such a
on his return home while about his employer’s busi-
journey
ness was a hazard of the
and is compensable. Id.
recovery in
Allowing
cases such as this
a sound
supports
public policy
encourages
to undertake
Sa-
employees
“good
*13
maritan” acts of humanitarianism desirable in
enlightеned
society.
10:30-36.
Luke
Such a
is also in
holding
accord with the
of liberal
principle
construction of
Workers’
technical, narrow,
Act that benefits
be
should not
denied upon
and strict
v.
interpretation, Henry
Leather
(1950),
and with the following decisions:
O’Leary
483;
Brown-Pacific-Maxon, 340 U.S.
95 L.Ed.
Food Products
(Ct.
Com’n,
1981);
v. Indus.
129 Ariz.
630 P.
Corp.
2d 31
Case,
(1976);
369 Mass.
343 N.E.
D’Angeli’s
2d 368
“2”
Big
(Miss. 1980).
Freeman,
Engine Rebuilders v.
No. (Filed 1988) February g impermissibly suggestive pretrial pro- Criminal Law 66.14— identification independent origin cedures —identification at trial of prosecution degree rape, degree trial court in a for first first sex of- fense, against by admitting and crime nature did not err the victim’s in-court