{
  "id": 8523405,
  "name": "HERBERT T. FORSYTHE, Father and Next of Kin of VICKY FORSYTHE, Deceased, Employee; Plaintiff v. INCO, Employer; LIBERTY MUTUAL INSURANCE COMPANY, Carrier; Defendants",
  "name_abbreviation": "Forsythe v. Inco",
  "decision_date": "1989-10-03",
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  "casebody": {
    "judges": [
      "Judges Phillips and Cozort concur."
    ],
    "parties": [
      "HERBERT T. FORSYTHE, Father and Next of Kin of VICKY FORSYTHE, Deceased, Employee; Plaintiff v. INCO, Employer; LIBERTY MUTUAL INSURANCE COMPANY, Carrier; Defendants"
    ],
    "opinions": [
      {
        "text": "LEWIS, Judge.\nUnder the Workers\u2019 Compensation Act, plaintiff\u2019s right to recover for the death of his daughter depends upon whether it resulted from an \u201caccident arising out of and in the course of the employment.\u201d G.S. 97-2(2); Bartlett v. Duke University, 284 N.C. 230, 232, 200 S.E.2d 193, 194 (1973). \u201cArising out of the employment\u201d refers to the origin or cause of the accidental injury; \u201cin the course of employment\u201d refers to the time, place and circumstances under which an accidental injury occurs. The two phrases involve two ideas and two conditions, both of which must be met to sustain an award. Sweatt v. Rutherford County Board of Education, 237 N.C. 653, 657, 75 S.E.2d 738, 742 (1953); Harless v. Flynn, 1 N.C. App. 448, 454, 162 S.E.2d 47, 52 (1968).\nConceding, arguendo, that plaintiff\u2019s intestate was in the course of her employment while she was eating her lunch, the determinative question is whether a causal connection existed between her choking on the peanut butter sandwich and her employment. Bartlett, supra at 233, 200 S.E.2d at 195.\nWe find that the facts in this case are analogous to the Bartlett case, cited above. In Bartlett, plaintiff\u2019s decedent was employed by Duke University as a construction administrator. Duke sent him to Washington, D.C., to recruit a maintenance engineer. As the trip required an overnight stay, Bartlett arranged to stay with some friends in the Washington area. At approximately 6:30 p.m., Bartlett and his hostess went out to eat at a nearby restaurant. Bartlett had concluded his job-related duties for the day. While eating dinner, Bartlett aspirated a chunk of meat and immediately became unconscious. He subsequently died from the ensuing complications. His widow filed a workers\u2019 compensation claim. Id.\nCiting various cases, the court noted the general standard for determining whether an injury arises out of one\u2019s employment:\nThe term \u2018arising out of the employment\u2019 is not susceptible of any all-inclusive definition, but it is generally said that an injury arises out of the employment, \u2018when it is a natural and probable consequence or incident of the employment and a natural result of one of its risks, so there is some causal relation between the injury and the performance of some service of the employment.\u2019\nTo have its origin in the employment an injury must come from a risk which might have been contemplated by a reasonable person familiar with the whole situation as incidental to the service when he entered the employment. The test \u2018excludes an injury which cannot fairly be traced to the employment as a contributing proximate cause and which comes from a hazard to which the workmen would have been equally exposed apart from the employment. The causative danger must be peculiar to the work and not common to the neighborhood. It must be incidental to the character of the master and servant. It need not have been foreseen or expected, but after the event it must appear to have had its origin in a risk connected with the employment, and to have flowed from that source as a rational consequence.\u2019\n284 N.C. at 233, 200 S.E.2d 195 (citations omitted).\nApplying the foregoing test, the court concluded that there was no causal relationship between Bartlett\u2019s employment and his aspiration of the meat. The court noted:\nThe risk that Commander Bartlett might choke on a piece of meat while dining at the Orleans House was the same risk to which he would have been exposed had he been eating at home or at any other public restaurant in the Washington area. Whether employed or unemployed, at home or traveling on business, one must eat to live. In short, eating is not peculiar to traveling; it is a necessary part of daily living, and one\u2019s manner of eating, as well as his choice of food, is a highly personal matter.\n284 N.C. at 234, 200 S.E.2d 195.\nThe reasoning in Bartlett is applicable to the facts before us. Although Ms. Forsythe was injured on her employer\u2019s premises, the fact that she ate lunch on the premises did not subject her to any greater risk from eating her food than would have been the case if she had taken her lunch at home, or anywhere else for that matter.\nThe fact that the accident occurred on the employer\u2019s premises is not sufficient, in and of itself, to warrant a finding that Ms. Forsythe\u2019s injury arose out of her employment. The North Carolina Supreme Court has stated:\nWhen an injury cannot fairly be traced to the employment as a contributing proximate cause, or if it comes from a hazard to which the employee would have been equally exposed apart from the employment, or from the hazard common to others, it does not arise out of the employment. In such a situation the fact that the injury occurred on the employer\u2019s premises is immaterial.\nCole v. Guilford County and Hartford Acc. and Indem. Co., 259 N.C. 724, 727, 131 S.E.2d 308, 311 (1963) (citations omitted) (emphasis added). We find Tscheiller v. National Weaving Co., 214 N.C. 449, 199 S.E. 623 (1938) distinguishable. In Tscheiller, claimant suffered food poisoning from eating a spoiled sandwich sold to her by her employer. Ms. Forsythe\u2019s sandwich was neither prepared nor provided by INCO. Rather, it was prepared at the group home and brought to work by Ms. Forsythe herself.\nPlaintiff has put forth no evidence that her death arose out of her employment. Her employment at INCO created no greater risk of injury or death by choking than the risk one must take every time food is ingested. Plaintiff contends that the defendant owed a higher duty of care to its employees because they were mentally retarded. This argument is better suited to a negligence action where duty and foreseeability are required to be proven in order for the plaintiff to recover. This, however, is a workers\u2019 compensation claim where fault has been eliminated and the worker may recover without proving negligence if the injury arises out of and in the course of employment. Bare v. Wayne Poultry Co., 70 N.C. App. 88, 94, 318 S.E.2d 534, 539 (1984), cert. denied, 312 N.C. 796, 325 S.E.2d 484 (1985). The fact that the plaintiff\u2019s intestate was mentally retarded has no bearing on whether her employment created a greater risk of her choking. Accordingly, we\nAffirm.\nJudges Phillips and Cozort concur.",
        "type": "majority",
        "author": "LEWIS, Judge."
      }
    ],
    "attorneys": [
      "Zollicoffer & Zollicoffer, by Nicholas Long, Jr., for the plaintiff-appellant.",
      "Patterson, Dilthey, Clay, Cranfill, Sumner & Hartzog, by Reid Russell, for defendant-appellees."
    ],
    "corrections": "",
    "head_matter": "HERBERT T. FORSYTHE, Father and Next of Kin of VICKY FORSYTHE, Deceased, Employee; Plaintiff v. INCO, Employer; LIBERTY MUTUAL INSURANCE COMPANY, Carrier; Defendants\nNo. 8910IC312\n(Filed 3 October 1989)\nMaster and Servant \u00a7 55.5\u2014 workers\u2019 compensation \u2014 employee choking on sandwich \u2014no injury arising out of employment\nThe trial'court properly concluded that an employee\u2019s death from choking while eating a peanut butter sandwich on her employer\u2019s premises did not arise out of her employment, since she was not subjected to any greater risk from eating her food than would have been the case if she had taken her lunch at home or elsewhere; furthermore, the fact that the employee was mentally retarded had no bearing on whether her employment created a greater risk of her choking.\nAPPEAL by plaintiff from opinion filed 13 December 1988 by the North Carolina Industrial Commission. Heard by the Full Commission on 7 December 1988 on an appeal by plaintiff from an opinion by Deputy Commissioner Lawrence J. Shuping denying the claim. Heard in the Court of Appeals 21 September 1989.\nVicky Forsythe was a forty-six-year-old woman who was mentally retarded from birth as a result of a congenital defect. She lived at a group home for the mentally retarded in May 1985. She had been employed at the defendant INCO\u2019s sheltered workshop in Henderson, North Carolina since September 1980. INCO\u2019s program was offered to service the needs of mentally and physically handicapped individuals with vocational training and provided sheltered, paid employment to adults with developmental disabilities.\nEmployees of INCO\u2019s workshop brought food from home, but were required to remain on the premises during lunch and breaks. Ms. Forsythe was on her lunch break on 2 May 1985 and was eating a peanut butter sandwich which she had brought in the defendant\u2019s lunchroom when she began choking at approximately 12:15 p.m. Employees of the defendant, who were on duty in the lunchroom to supervise the employees, immediately noticed Ms. Forsythe\u2019s difficulty and attempted to assist her, without success.\nMs. Forsythe was transported to Maria Parham Hospital in Henderson by employees of the defendant, where she was admitted to the emergency room at 12:25 p.m. Hospital personnel removed a \u201cbig blob\u201d of peanut butter sandwich which was covering Ms. Forsythe\u2019s pharynx. She suffered severe brain damage from a lack of oxygen and died on 7 May 1985.\nThe death of the plaintiff\u2019s intestate was directly and proximately caused by her aspirating and choking on the peanut butter sandwich, which caused a lack of oxygen and death.\nAt the time of her death, the plaintiff\u2019s intestate was an employee of the defendant, INCO, and covered by defendant Liberty Mutual Insurance Company\u2019s policy of workers\u2019 compensation.\nZollicoffer & Zollicoffer, by Nicholas Long, Jr., for the plaintiff-appellant.\nPatterson, Dilthey, Clay, Cranfill, Sumner & Hartzog, by Reid Russell, for defendant-appellees."
  },
  "file_name": "0742-01",
  "first_page_order": 770,
  "last_page_order": 774
}
