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Daniels v. Swofford

Filed: February 2, 1982.

DONNA DANIELS, PLAINTIFF
v.
JAMES E. SWOFFORD, INDIVIDUAL DEFENDANT, AND DERMOX, INC., CORPORATE DEFENDANT



Appeal by plaintiff from Hairston, Judge. Judgment entered 24 March 1981 in Superior Court, Alexander County. Heard in the Court of Appeals 7 January 1982.

Vaughn, Judge.

Vaughn

At issue is whether the trial court has subject matter jurisdiction over plaintiff's claim or whether the Industrial Commission has exclusive jurisdiction. We conclude that the Workers' Compensation Act precludes plaintiff from seeking recovery from the corporate employer. Plaintiff, however, does have the right to bring a tort action against the assaultive coemployee. Summary judgment in favor of that defendant was improperly granted.

[1] We must first determine whether plaintiff has the right to proceed under the Workers' Compensation Act. It is well settled that to maintain an action for compensation, the claimant must be an employee of the party from whom compensation is sought. Askew v. tire Co., 264 N.C. 168, 141 S.E.2d 280 (1965); Hart v. Motors, 244 N.C. 84, 92 S.E.2d 673 (1956).

Plaintiff argues she cannot proceed under the Act because she was not an employee of Dermox, Inc. at the time of the alleged assault. Under similar facts, however, North Carolina and Tennessee courts found that the employer/employee relationship did continue to exist. McCune v. Manufacturing Co., 217 N.C. 351, 8 S.E.2d 219 (1940); Williams v. Smith, 222 Tenn. 284, 435 S.W. 2d 808 (1968).

In both McCune and Williams, the plaintiff sought damages for injuries intentionally inflicted by his supervisor immediately after the supervisor had fired him. In both cases the corporate defendant sought dismissal based on its state's Workers' Compensation Act. By applying the Act's exclusivity provisions to the issues on appeal, the courts by necessity had to find that an employer/employee relationship existed. We, therefore, hold as a matter of law that at the time of the alleged incident, plaintiff was still an employee of Dermox, Inc.

Plaintiff argues the Act is nevertheless unavilable to her because the alleged assault was not a risk incident to employment. We disagree.

In order to be compensable, an injury must result from an accident arising out of and in the course of employment. G.S. 97-2(6); Gallimore v. Marilyn's Shoes, 292 N.C. 399, 233 S.E.2d 529 (1977). Under North Carolina's Workers' Compensation Act, the term "accident" includes "an unlooked for and untoward event which is not expected or designed by the injured employee." Harding v. Thomas & Howard Co., 256 N.C. 427, 428, 124 S.E.2d 109, 110-11 (1962). An unexpected assault, therefore, may be considered an accident despite its characterization as an intentional act. We conclude that the alleged assault in the present action was an accident as defined by the Workers' Compensation Act. The pleadings do not indicate that the assault was personally motivated so as to remove the necessary connection with employment. See Gallimore v. Marilyn's Shoes, 292 N.C. at 404-05, 233 S.E.2d at 532. In fact, defendants admit in their answer that at the time of the incident Mr. Swofford was discussing business and plaintiff's job with the plaintiff. We, therefore, further conclude that the alleged assault arose out of and in the course of plaintiff's employment.

[2] We must next determine whether North Carolina Workers' Compensation Act is plaintiff's exclusive remedy.

Worker compensation laws were enacted to treat the cost of industrial accidents as a cost of production. W. Prosser, Handbook of the Law of Torts § 80 (4th ed. 1971). Under these acts, employers assure employees compensation for accidental injuries "arising out of and in the course of employment." The economic loss is then passed on to consumers. Id.

In return for guaranteed compensation, employees give up their right to common law verdicts. 2A A. Larson, The Law of Workmen's Compensation § 72.20 (1976) [hereinafter cited as Larson]. G.S. 97-10.1 is similar to provisions of other states' worker compensation acts:

"If the employee and the employer are subject to and have complied with the provisions of this Article, then the rights and remedies herein ...


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