FULCHER BY WALL v. Willard's Cab Co. , 132 N.C. App. 74 ( 1999 )

Judge Greene

concurring in the result.

I do not agree that Wall was an independent contractor, but because I believe his injury was not an accident arising out of and in the course of his employment, I agree with the majority that the award of the Commission must be reversed.¹

There are several items of evidence, necessary for my analysis, not included in the recitation of the facts by the majority. The evidence revealed Wall was shot in the back of the head, shell casings were found in the back seat of the taxicab, and Wall’s blood was found splattered on the inside of the taxicab’s windshield. The Commission found Defendant knew many of the customers seeking taxicab service were dangerous, the killing of Wall was “an unlooked for and untoward event,” and Wall was shot in the back of the head at 1:35 a.m. “while operating the taxicab.”

The Commission concluded' (1) there was an employer-employee relationship between Wall and Defendant on 1 November 1994; and (2) the death of Wall on 1 November 1994 was an injury by accident arising out of and in the course of his employment.

I

Employee or Independent Contractor

The ultimate test for determining whether an employer-employee relationship exists, rather than that of an employer and independent contractor, is the extent to which the party for whom the work is being done has the right to control the manner and method in which the work is performed. Hayes v. Eton College, 224 N.C. 11, 15-16, 29 S.E.2d 137, 140 (1944). The Hayes court enunciated several factors that can be used in making this determination, including the freedom to use such assistants as the person employed thinks proper. Id.

In this case, Defendant owned a taxicab franchise and entered into a contract with drivers and owners for the operation of the taxicabs. The driver paid for his own gasoline, collected and kept his own fares, and worked at his own schedule. The fares were controlled, not by Defendant, but by the City of Winston-Salem. The drivers were not able to possess firearms while operating the taxicabs, nor were they allowed to permit any other person to assist them in the operation of the taxicabs. Although the relationship has some indicia of an independent contractor, I believe Defendant’s self-imposed prohibitions against the possession of firearms and the use of assistants moves this relationship into one of employer-employee. Cf. Alford v. Cab Co., 30 N.C. App. 657, 228 S.E.2d 43 (1976) (city imposed controls over taxicab driver not sufficient to justify classification of driver as employee). The fact that the handgun restriction may have been “in the interest of both parties” is not material, as it was nonetheless a restriction imposed by the Defendant. Likewise, though the prohibition against the use of assistants may have been designed to protect Defendant’s property, it was still a restriction imposed by Defendant. It surely cannot be disputed that these two restrictions constitute some control of the manner and method in which the driving of the taxicab was to be performed.

Any effort by the majority to distinguish the facts in Hayes from the facts in this case is not helpful. Indeed, the facts are different, but the issue is the same: whether there was control over the manner and method of doing the work. Here the work of driving the taxicab only requires one person, as noted by the majority, but it did not, in the absence of the restriction on the use of assistants, have to be Wall.

II

Under the North Carolina Workers’ Compensation Act (Act), an injury is compensable if it is: (1) by accident; (2) arising out of the employment; and (3) in the course of the employment. N.C.G.S. § 97-2(6) (Supp. 1997); Robbins v. Nicholson, 281 N.C. 234, 238, 188 S.E.2d 350, 353 (1972). Whether the injury is an accident arising out of and in the course of the employment is a mixed question of law and fact. Gallimore v. Marilyn’s Shoes, 292 N.C. 399, 402, 233 S.E.2d 529, 531 (1977). In other words, this Court is bound by the Commission’s findings of how, when, and where the injury occurred, provided those findings are supported by competent evidence. Whether those findings support the conclusion that the injury was an accident arising out of and in the course of the employment presents a question of law and is fully reviewable on appeal.

Accident

An accident is an unusual event or result which is not expected or designed by the injured employee. Adams v. Burlington Industries, 61 N.C. App. 258, 300 S.E.2d 455 (1983). As a general proposition, therefore, if an injury occurs under normal work conditions and the employee was injured while performing his regular duties in the usual and customary manner, there is no accident within the meaning of the Act. Porter v. Shelby Knit, Inc., 46 N.C. App. 22, 264 S.E.2d 360 (1980). Assaults may constitute an accident, if they are unexpected and without design on the part of the employee who suffers the assault. Gallimore, 292 N.C. at 402, 233 S.E.2d at 531.

Defendant argues that the assault against Wall in this case was expected and thus not an accident within the meaning of the Act. Defendant suggests the finding by the Commission that the operation of a taxicab is a dangerous activity supports its argument. I disagree.

Defendant’s argument necessarily rests on the premise that an injury is expected if the injured employee is employed to perform a dangerous job, and is injured while performing that job. If our courts accepted this premise, employees would receive no protection under the Act, when performing the very job they were employed to perform, if the job is dangerous and the injury is related to the dangerous activity. For example, there would be no workers’ compensation coverage for the police officer assigned to the bomb squad, if the bomb goes off when he is trying to disarm it. Additionally, there would be no coverage for the coal miner who enters into the coal mine to dig the coal and is injured in the process. I therefore reject Defendant’s argument and would hold that the finding of the Commission that Wall, a taxicab driver, was shot in the back of the head, an unexpected event, supports its conclusion that his death was an accident within the meaning of the Act. See 2 Arthur Larson, Larson’s Workers’ Compensation Law § 37.20 (1998).

Arising out of and in the Course of the Employment

“Arising out of employment,” refers to the manner in which the injury occurred, its cause. Taylor v. Twin City Club, 260 N.C. 435, 132 S.E.2d 865 (1963). In other words, whether the injury was a natural and probable consequence of the employment. Perry v. Bakeries Co., 262 N.C. 272, 136 S.E.2d 643 (1964). If the injury is caused by 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.” Cole v. Guilford County, 259 N.C. 724, 727, 131 S.E.2d 308, 311 (1963).

“In the course of the employment” refers to the time, place, and circumstances under which the injury occurs. Robbins, 281 N.C. at 238, 188 S.E.2d at 353. The ultimate inquiry is whether the employee was, at the time of the injury, doing the work of his employer. Leonard T. Jernigan, Jr., North Carolina Workers’ Compensation § 6-1 (2d ed. 1995). An injury to an employee while he is performing acts “solely for the benefit or purpose of the employee or a third person” are not compensable. Lewis v. Tobacco Co., 260 N.C. 410, 412, 132 S.E.2d 877, 879 (1963).

In this case, the Commission found as fact that Wall was shot in the back of the head at 1:35 a.m. “while operating the taxicab.” There is no dispute that he was dispatched at 1:00 a.m. to a location in Winston-Salem. There are no findings and there is no evidence, however, on whether the person who shot Wall was the person who requested the dispatch, a person about to be or being transported for the benefit of Defendant, a person assaulting Wall as he was doing the business of Defendant, or an assault occurring at a time while Wall was not doing the work of Defendant. The fact that Wall was killed at 1:35 a.m. “while operating the taxicab,” after having received a 1:00 a.m. dispatch, does not answer the question of whether he was operating the taxicab at the time of the killing and in the work of Defendant. Because Plaintiffs had the burden of proving each element of their claim, Taylor, 260 N.C. at 437, 132 S.E.2d at 867, and failed to meet this burden, the Commission erred in concluding that Wall was killed arising out of and in the course of his employment with Defendant.² Accordingly, though Wall was an employee of Defendant, I would reverse the Commission’s award because his injury, though an accident, did not arise out of and in the course of his employment with Defendant.

1 . Because I also agree with Part I of the majority’s opinion, I will not address that issue.

2 . Plaintiffs argue in their brief to this Court that the person “who pled guilty to murdering” Wall formerly resided at the address where Wall was dispatched and this evidence supports the conclusion that Wall was killed while transporting the killer pursuant to the dispatch. The facts upon which this argument is based simply are not supported by either the findings of the Commission or the evidence. Furthermore, Plaintiffs’ argument that Defendant presented no “alternative theory of the murder” is to no avail, as Plaintiffs had the burden in this case.