{ "id": 11917026, "name": "DONNA MARIE ROSS, Daughter, and RICHARD LEE GODWIN, Son of MAMIE PAULETTE BROCK, Deceased Employee-Appellants v. MARK'S INC., d/b/a HARDEE'S OF GREENVILLE, Employer-Appellee", "name_abbreviation": "Ross v. Mark's Inc.", "decision_date": "1995-11-07", "docket_number": "No. COA94-1383", "first_page": "607", "last_page": "611", "citations": [ { "type": "official", "cite": "120 N.C. App. 607" } ], "court": { "name_abbreviation": "N.C. Ct. App.", "id": 14983, "name": "North Carolina Court of Appeals" }, "jurisdiction": { "id": 5, "name_long": "North Carolina", "name": "N.C." }, "cites_to": [ { "cite": "49 ALR4th 926", "category": "reporters:specialty", "reporter": "A.L.R. 4th", "opinion_index": -1 }, { "cite": "233 S.E.2d 529", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1977, "pin_cites": [ { "page": "531" }, { "page": "532" } ], "opinion_index": 0 }, { "cite": "292 N.C. 399", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8569857 ], "weight": 2, "year": 1977, "pin_cites": [ { "page": "402" }, { "page": "403-04" } ], "opinion_index": 0, "case_paths": [ "/nc/292/0399-01" ] }, { "cite": "386 S.E.2d 174", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1989, "opinion_index": 0 }, { "cite": "325 N.C. 702", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2488046 ], "year": 1989, "opinion_index": 0, "case_paths": [ "/nc/325/0702-01" ] }, { "cite": "377 S.E.2d 777", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1989, "opinion_index": 0 }, { "cite": "93 N.C. App. 242", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8527997 ], "year": 1989, "opinion_index": 0, "case_paths": [ "/nc-app/93/0242-01" ] }, { "cite": "188 S.E.2d 350", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 3, "year": 1972, "pin_cites": [ { "page": "353" }, { "page": "354" }, { "page": "354" } ], "opinion_index": 0 }, { "cite": "281 N.C. 234", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8574679 ], "weight": 3, "year": 1972, "pin_cites": [ { "page": "238" }, { "page": "240" }, { "page": "240" } ], "opinion_index": 0, "case_paths": [ "/nc/281/0234-01" ] }, { "cite": "N.C. Gen. Stat. \u00a7 97-2", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "year": 1991, "pin_cites": [ { "page": "(6)" } ], "opinion_index": 0 }, { "cite": "378 S.E.2d 799", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1989, "opinion_index": 0 }, { "cite": "324 N.C. 337", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2486154, 2483507, 2484885, 2484376, 2484444 ], "year": 1989, "opinion_index": 0, "case_paths": [ "/nc/324/0337-05", "/nc/324/0337-01", "/nc/324/0337-02", "/nc/324/0337-03", "/nc/324/0337-04" ] }, { "cite": "374 S.E.2d 116", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1988, "pin_cites": [ { "page": "118" } ], "opinion_index": 0 }, { "cite": "92 N.C. App. 222", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8526693 ], "year": 1988, "pin_cites": [ { "page": "225" } ], "opinion_index": 0, "case_paths": [ "/nc-app/92/0222-01" ] }, { "cite": "288 S.E.2d 806", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1982, "opinion_index": 0 }, { "cite": "304 N.C. 726", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8571392, 8571365, 8571463, 8571337, 8571433 ], "year": 1982, "opinion_index": 0, "case_paths": [ "/nc/304/0726-03", "/nc/304/0726-02", "/nc/304/0726-05", "/nc/304/0726-01", "/nc/304/0726-04" ] }, { "cite": "283 S.E.2d 436", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1981, "pin_cites": [ { "page": "438" } ], "opinion_index": 0 }, { "cite": "54 N.C. App. 314", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8521916 ], "year": 1981, "pin_cites": [ { "page": "316" } ], "opinion_index": 0, "case_paths": [ "/nc-app/54/0314-01" ] } ], "analysis": { "cardinality": 589, "char_count": 11205, "ocr_confidence": 0.731, "pagerank": { "raw": 8.742351238967182e-08, "percentile": 0.4946431239813595 }, "sha256": "c2229cd38fbb48c3344349fedb5a224c001696ef979219d58f4eb15f9f0873b5", "simhash": "1:2417259aaaaf3379", "word_count": 1868 }, "last_updated": "2023-07-14T16:17:04.771230+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges MARTIN, John, and WALKER concur." ], "parties": [ "DONNA MARIE ROSS, Daughter, and RICHARD LEE GODWIN, Son of MAMIE PAULETTE BROCK, Deceased Employee-Appellants v. MARK\u2019S INC., d/b/a HARDEE\u2019S OF GREENVILLE, Employer-Appellee" ], "opinions": [ { "text": "SMITH, Judge.\nIn this case, plaintiffs, children of deceased employee, attempted to recover workers\u2019 compensation benefits for the death of their mother resulting from an assault inflicted by her ex-husband. Deputy Commissioner Roger L. Dillard, Jr., found that the moving cause of the assault upon the employee was personal, did not arise out of her employment and, therefore, was not compensable under the Workers\u2019 Compensation Act. Plaintiffs appealed to the Full Commission, which adopted, with slight modification, the findings of fact and conclusions of law of the Deputy Commissioner and affirmed the denial of benefits. Plaintiffs appeal to this Court. We affirm.\nIn August of 1990, employee, Mamie Paulette Brock, was the assistant manager of Hardee\u2019s Fast Food Restaurant in Greenville. At that time she had been divorced from Larry Ray Godwin for seven years. Approximately six months prior to August of 1990, Brock and Godwin began living together again. The two had a tumultuous relationship because Brock continued to have boyfriends other than Godwin and Godwin became very jealous. Three months before Brock\u2019s death, Godwin discovered her having sex with another man in the back of a van. At that time Godwin held a gun to Brock\u2019s head and threatened to kill her. On several occasions, Godwin told coworkers that he was going to kill Brock. Several days before 13 August 1990, Godwin became so enraged with Brock that he asked her to move out of the mobile home in which the two lived.\nOn 13 August 1990, Godwin went to Hardee\u2019s and saw Brock having dinner with one of her boyfriends. Outraged, Godwin went out to the Hardee\u2019s parking lot and waited 20 or 30 minutes. Brock\u2019s boyfriend exited through the back door of Hardee\u2019s and did not confront Godwin. Godwin went home, where he explained to his roommate what had happened. His roommate told him he needed to \u201cget her back.\u201d According to Godwin\u2019s later confession to police, he and his roommate then formulated a plan to punish and embarrass Brock. They decided to take defendant employer\u2019s money from employee Brock after she had closed the restaurant and was on her way to make the night deposit. They believed that by robbing the employee, they could embarrass her and make her think she would have to replace the money out of her own funds in order to prevent employer from absorbing a loss caused by her personal acquaintances. As a result, Godwin and his roommate believed this would be revenge upon Brock.\nLater on the evening of 13 August 1990 Godwin and his roommate went back to Hardee\u2019s where Godwin hid in Brock\u2019s car, waiting for her until she finished work. When Brock got into her vehicle and was on her way to the bank, Godwin showed himself. At some point, Brock stopped the car and allowed Godwin to drive. The two became engaged in a fight and, after driving down the road for some distance, Godwin pulled the car to the side of the road where he and Brock continued a heated argument. Godwin grabbed a pistol, which was in Brock\u2019s car, and shot her at least twice. Godwin then told his roommate, who had been following them in another car, what had happened. The roommate then shot Brock again.\nGodwin and his roommate took Brock\u2019s body to a remote site in Washington, North Carolina, where they disposed of Brock\u2019s body, her belongings and their own bloody clothes. During this time, the roommate said that they needed to make it look like a kidnapping, robbery, rape and murder. They divided the bank deposit of $293.61.\nBased upon the foregoing facts, the Full Commission made the following conclusions of law:\n1. There is no reasonable inference that can be drawn from the evidence presented that the decedent\u2019s employment created the risk of her attack. The actual cause of the assault on the deceased employee by her ex-husband was personal. The plaintiff\u2019s claim is not compensable.\n2. Decedent\u2019s death did not arise out of her employment, although she was kidnapped and murdered as she was leaving her place of employment and was on the way to make defendant-employer\u2019s bank deposit. Even though there is evidence that would tend to indicate that robbing the employee was the method that the ex-husband and his roommate had schemed to have revenge on the employee, these actions were directed to the. deceased employee personally and arose from a set of circumstances outside of her employment and, thus, did not arise within or out of the scope of her employment.\nPlaintiffs contend that the Industrial Commission erred on the ground that there is a reasonable inference which can be drawn from the evidence that decedent Brock\u2019s employment created the risk of her attack and that the assault arose out of and in the course of her employment and was not personal in nature.\nIn an appeal from a decision by the Industrial Commission, this Court\u2019s standard of review is limited to a determination of whether the Commission\u2019s findings of fact are supported by competent evidence and whether the conclusions of law are supported by the findings. Hemric v. Manufacturing Co., 54 N.C. App. 314, 316, 283 S.E.2d 436, 438 (1981), disc. review denied, 304 N.C. 726, 288 S.E.2d 806 (1982). This is so even if there is evidence which would support contrary findings. Richards v. Town of Valdese, 92 N.C. App. 222, 225, 374 S.E.2d 116, 118 (1988), disc. review denied, 324 N.C. 337, 378 S.E.2d 799 (1989).\nUnder the Workers\u2019 Compensation Act a compensable death is one which results from an injury by accident arising out of and in the course of employment. N.C. Gen. Stat. \u00a7 97-2(6) (1991); Robbins v. Nicholson, 281 N.C. 234, 238, 188 S.E.2d 350, 353 (1972); Culpepper v. Fairfield Sapphire Valley, 93 N.C. App. 242, 377 S.E.2d 777, aff\u2019d, 325 N.C. 702, 386 S.E.2d 174 (1989). This appeal presents only the question of whether decedent\u2019s injuries arose out of her employment with defendant employer. The parties have stipulated that decedent\u2019s death resulted from an accident within the meaning of the Workers\u2019 Compensation Act and that she died in the course of her employment.\nIn general, the term \u201carising out of\u2019 refers to the origin or causal connection of the accidental injury or death to the employment. Gallimore v. Marilyn\u2019s Shoes, 292 N.C. 399, 402, 233 S.E.2d 529, 531 (1977). While assaults upon employees may be compensable if they arise out of and in the course of employment, privately motivated assaults which spring from disputes \u201cthat claimant, so to speak, brought with him to the employment premises from outside\u201d are generally not compensable under the Workers\u2019 Compensation Act. A. Larson, The Law of Workmen\u2019s Compensation, \u00a7 11.31 (1992); Gallimore, 292 N.C. at 403-04, 233 S.E.2d at 532; Robbins, 281 N.C. at 240, 188 S.E.2d at 354. This is so because privately motivated assaults do not arise out of the employment relationship; they are foreign to it. The necessary connection between the injury and the employment does not exist.\nPlaintiffs argue that Godwin\u2019s roommate was the impetus of the assault upon employee Brock and that his primary motivation was to rob her for personal financial gain. They contend that the nature of her employment increased the risk of such a robbery and that the assault upon Brock was an inherent risk of her employment. Plaintiffs argue that there was a dual motive for the robbery of and assault upon Brock: one was the personal relationship between Brock and Godwin, the other was the roommate\u2019s desire for financial gain. They argue that, when such a dual motive exists, the resulting injury is compensable under the Act. However, the Full Commission found only one motivating force behind the assault of Brock and that was the personal relationship between her and Godwin. We are bound by the findings of the Industrial Commission if there is competent evidence in the record to support them. In this case, we find that there is competent evidence to support the Commission\u2019s finding that the assault was privately motivated by only one factor: the domestic relationship between the employee and her ex-husband.\nGodwin and Brock had a stormy relationship, and only days before the assault Godwin had asked Brock to move out of the mobile home they occupied. He had threatened her life on at least one occasion and had told co-workers he was going to kill her. When Godwin told his roommate that he had seen Brock having dinner with another man, the roommate\u2019s immediate comment was that Godwin needed to \u201cget her back.\u201d In Brock\u2019s car on the night of the assault, she and Godwin engaged in a bitter fight. It was not until after he shot Brock that Godwin and his roommate took money from her which belonged to defendant employer. -At that point, the roommate told Godwin they needed to make it \u201clook like\u201d a robbery, kidnapping, rape and murder. This ample evidence supports the Commission\u2019s finding that the relationship between Brock and Godwin was the motivating force behind the assault. When the \u201ccircumstances surrounding the assault furnish ho basis for a reasonable inference that the nature of the employment created the risk of such an attack, the injury is not compensable.\u201d Robbins, 281 N.C. at 240, 188 S.E.2d at 354.\nThe risk of assault and murder by a jealous ex-husband is not one which a rational mind would anticipate as an incident of the employment of an assistant manager of a fast food restaurant. The motivation behind the robbery and assault was unrelated to the employment of the deceased and likely to present itself at any time and in any place. Therefore, the resultant injury was not directly traceable to and connected with the employment. For these reasons, we conclude that the deceased employee did not sustain injury and death by accident arising out of the course of her employment. The opinion and award of the Industrial Commission is\nAffirmed.\nJudges MARTIN, John, and WALKER concur.", "type": "majority", "author": "SMITH, Judge." } ], "attorneys": [ "James Hite Avery Clark & Robinson, by Leslie S. Robinson, for plaintiff appellants.", "Cranfill, Sumner & Hartzog, L.L.P., by C.D. Taylor Pace and W. Scott Fuller, for defendant appellee." ], "corrections": "", "head_matter": "DONNA MARIE ROSS, Daughter, and RICHARD LEE GODWIN, Son of MAMIE PAULETTE BROCK, Deceased Employee-Appellants v. MARK\u2019S INC., d/b/a HARDEE\u2019S OF GREENVILLE, Employer-Appellee\nNo. COA94-1383\n(Filed 7 November 1995)\nWorkers\u2019 Compensation \u00a7 133 (NCI4th)\u2014 employee depositing employer\u2019s funds \u2014 murder by ex-husband \u2014 no injury arising out of employment\nThere was competent evidence to support the Industrial Commission\u2019s finding that the murder of the deceased employee was privately motivated by only one factor, the stormy domestic relationship between the employee and her ex-husband, and the Commission therefore did not err in concluding that the injury did not arise out of and in the course of the employee\u2019s employment, even if it did occur as sheTeft work on her way to the bank to deposit the employer\u2019s funds.\nAm Jur 2d, Workers\u2019 Compensation \u00a7 569.\nWorkers\u2019 compensation law as precluding employee\u2019s suit against employer for third person\u2019s criminal attack. 49 ALR4th 926.\nAppeal by plaintiffs from an opinion and award of the North Carolina Industrial Commission entered 19 July 1994. Heard in the Court of Appeals 19 September 1995.\nJames Hite Avery Clark & Robinson, by Leslie S. Robinson, for plaintiff appellants.\nCranfill, Sumner & Hartzog, L.L.P., by C.D. Taylor Pace and W. Scott Fuller, for defendant appellee." }, "file_name": "0607-01", "first_page_order": 641, "last_page_order": 645 }