Burke, Timothy v. Steve Towers Enterprises, LLC, a/k/a Steve Towers Holding, LLC

FILED
Jun 23, 2023
08:48 AM(CT)
TENNESSEE COURT OF
WORKERS' COMPENSATION
CLAIMS
TENNESSEE BUREAU OF WORKERS’ COMPENSATION
IN THE COURT OF WORKERS’ COMPENSATION CLAIMS
AT NASHVILLE
Timothy Burke, ) Docket No. 2022-06-0311
Employee, )
v. )
Steve Towers Enterprises, LLC, a/k/a )
Steve Towers Holding, LLC, ) State File No. 55612-2021
Employer, )
And )
Hartford Insurance Co. of the )
Southeast, ) Judge Kenneth M. Switzer
Carrier. )
COMPENSATION ORDER GRANTING SUMMARY JUDGMENT
Timothy Burke was accidently shot by a coworker while working at a vehicle repair
shop owned by Steve Towers Enterprises. Towers filed a motion for summary judgment,
which the Court heard on June 21, 2023. Towers contends that Mr. Burke’s claim for
benefits should be dismissed because he cannot show an essential element of his claim:
that his injury arose primarily out of his employment. Mr. Burke rejects that contention
and counters that multiple disputed material facts make summary judgment inappropriate.
For the reasons below, the Court finds no genuine issue of material fact exists. An
accidental shooting, while tragic, bears no causal relationship to the employer’s business
of repairing cars and trucks. Towers is therefore entitled to summary judgment as a matter
of law.
Facts
The parties agreed to the following facts, mostly verbatim, for purposes of this
motion.
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Mr. Burke seeks benefits for an accident that occurred in July 2021 while he worked
for Towers. Towers operated Midas automobile repair stores in middle Tennessee, and
Mr. Burke was a store manager.
Mr. Burke was accidentally and unintentionally shot by coworker Josh Daniels.1
“Buying a gun” was not a part of Mr. Burke’s job. Likewise, Mr. Daniels was not doing
something that was part of his job when he shot Mr. Burke.
Before the shooting occurred, coworker John Graves told Mr. Burke that he had
recently sold a gun. Mr. Daniels overheard the conversation and told Mr. Burke he owned
a gun he could sell to Mr. Burke. The three then went outside the store to Mr. Daniels’s
truck to look at the gun. Before Mr. Burke saw it, he heard a phone ringing inside the store
and returned to answer it.
Mr. Graves and Mr. Daniels followed Mr. Burke back into the store. Mr. Daniels
brought the loaded gun into the store and placed it on a desk near Mr. Burke. Mr. Burke
hung up the phone, picked up the gun, and handled it before putting it back down. Mr.
Daniels picked up the gun, when it accidently discharged and shot Mr. Burke.
Mr. Burke asserts additional facts. These facts include that when he was shot, he
was clocked in and not on a break, and he was working behind the counter, in uniform, and
on a work-related phone call. Mr. Burke contends that these material facts preclude
summary judgment and prove that the injury was work related.
Law and Analysis
Summary judgment is appropriate when “the pleadings, depositions, answers to
interrogatories, and admissions on file, together with the affidavits, if any, show that there
is no genuine issue as to any material fact and that the moving party is entitled to a judgment
as a matter of law.”2 Tenn. R. Civ. P. 56.04 (2023).
When a party who does not bear the burden of proof at trial files a motion for
summary judgment, it must do one of two things to prevail: (1) submit affirmative evidence
1
Mr. Burke inaccurately argues that Towers “failed to produce” Mr. Daniels as a witness. A September
15, 2022 status hearing order states that one of the fact witnesses, presumably Mr. Daniels, is no longer
employed by Steve Towers. A February 28, 2023 status order says that the parties are “unable to locate”
Mr. Daniels. During the hearing, Mr. Burke’s lawyer said, “Mr. Daniels is nowhere to be found.”
2
Rule 56.03 states, “Each fact shall be supported by a specific citation to the record.” Towers filed excerpts
of deposition testimony to support its Statement of Undisputed Material Facts. Mr. Burke implies that “the
record” means the entire depositions must be filed. He cited no authority for this interpretation, and the
Court rejects it. Rather, parties are encouraged to decrease the volume of documents in cases. See, e.g.,
Love v. Delta Faucet Co., 2016 TN Wrk. Comp. App. Bd. LEXIS 45, at *11 (Sept. 19, 2016).
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that negates an essential element of the nonmoving party’s claim, or (2) demonstrate that
the nonmoving party’s evidence is insufficient to establish an essential element of the
nonmoving party’s claim. Tenn. Code Ann. § 20-16-101 (2022); see also Rye v. Women’s
Care Ctr. of Memphis, MPLLC, 477 S.W.3d 235, 264 (Tenn. 2015).
If the moving party successfully meets one of those elements, the nonmoving party
must respond by producing affidavits, pleadings, depositions, responses to interrogatories,
or admissions that set forth specific facts showing that there is a genuine issue for trial.
Tenn. R. Civ. P. 56.06. If the nonmoving party fails to do so, “summary judgment, if
appropriate, shall be entered against the [nonmoving] party.” Id.Here, Towers argues that Mr. Burke’s evidence is insufficient to establish an
essential element of his claim: that his injury arose primarily out of his employment.
The Workers’ Compensation Law defines “injury” as one that arises primarily out
of and in the course and scope of employment. Tenn. Code Ann. § 50-6-102(13). The
requirements that an injury “arise out of” and occur “in the course of” employment are not
synonymous, although both elements exist to ensure a work connection to the injury for
which the employee seeks benefits. Harris v. Nashville Ctr. for Healing and
Rehabilitation, 2021 TN Wrk. Comp. App. Bd. LEXIS 9, at *8 (Jan. 28, 2021).
The term “in the course of” refers to the time, place, and circumstances of the injury,
while “arising out of” refers to causation. Id.. An accidental injury arises out of the
employment “when there is apparent to the rational mind, upon consideration of all of the
circumstances, a causal connection between the conditions under which the work is
required to be performed and the resulting injury.” Id. The phrase “causal connection”
means “cause in the sense the accident had its origin in the hazards to which the
employment exposed the employee while doing his work.” Id. “Arising out of” refers to
“a causal connection between the conditions under which the work is required to be
performed and the resulting injury.” Rosasco v. W. Knoxville Painters, LLC, No. E2020-
016556-SC-R3-WC, 2021 Tenn. LEXIS 441, at *5 (Tenn. Workers’ Comp. Panel Nov. 18,
2021). The injury must “flow from his work as a rational consequence.” Id. at *7.
Towers does not contest the “course and scope” requirement but instead argues that
Mr. Burke’s injury did not “arise out of” his employment because the undisputed facts
show that Mr. Burke was shot by a coworker who was attempting to sell him a gun. That
activity has no origin in a risk connected to the employment. Therefore, Mr. Burke cannot
prove an essential element of the claim. The Court agrees.
Towers is in the business of servicing and repairing motor vehicles. One employee
attempting to sell a gun to a coworker bears no relation to that business purpose. Being
accidentally shot by a coworker is not a risk inherent to employment in a vehicle
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maintenance and repair shop. Nor would the presence of a handgun for sale by a coworker
naturally or normally be expected.
Mr. Burke argues that his response to the statement of undisputed facts established
a genuine dispute of several material facts. For example, he contends that a factual issue
exists as to whether he was on the phone when he was shot, and that the Court must make
a credibility determination to resolve that question. The Court disagrees. This fact is a
consideration under the “course and scope” prong, which is immaterial to the question of
whether Mr. Burke’s injury “arose out of” his employment. See King v. Kasai N. Am., Inc.,
2019 TN Wrk. Comp. App. Bd. LEXIS 19, at *8-9 (Apr. 4, 2019) (Disputed issues of fact
must be “material” to the legal issue presented).
Nor is it material to the legal issue if Mr. Burke was in uniform, on the clock, or
behind a counter. Towers does not dispute these facts; it asserts they are not material. “A
fact is ‘material’ if ‘it must be decided in order to resolve the substantive claim or defense
at which the motion is directed.’” Patterson v. Shelter Mut. Ins. Co., 2015 Tenn. App.
LEXIS 734, at *20-21 (Tenn. Ct. App. 2015). The Court does not need to decide them
because they are not material to the question of whether Mr. Burke’s injury flowed from
his work as a natural consequence.
The Court does not need to restate every additional proposed fact that Mr. Burke
has raised and explain why each one is not “material.” Rather, from the undisputed
material facts, the Court finds no genuine fact issue for trial, so summary judgment is
appropriate as a matter of law. Mr. Burke’s injury did not arise primarily out of his
employment.
Mr. Burke’s claim for benefits is therefore dismissed with prejudice to its refiling.
Towers must pay costs of $150.00 to the Court Clerk within five business days of entry of
this order. Towers must also submit an SD-2 within ten business days of the order
becoming final. Unless appealed, this order becomes final after thirty days.
IT IS ORDERED.
ENTERED June 23, 2023
_____________________________________
JUDGE KENNETH M. SWITZER
Court of Workers’ Compensation Claims
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CERTIFICATE OF SERVICE
I certify that a copy of this Order was sent as indicated on June 23 2023.
Name Certified Via Via Service sent to:
Mail Fax Email
Jason Denton, X jdenton@rma-law.com
Employee’s attorney tlawrence@rma-law.com
hsmith@rma-law.com
Blair Cannon, X blair.cannon@thehartford.com
Employer’s attorney
_____________________________________
Penny Shrum, Clerk of Court
WC.CourtClerk@tn.gov
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NOTICE OF APPEAL
Tennessee Bureau of Workers’ Compensation
www.tn.gov/workforce/injuries-at-work/
wc.courtclerk@tn.gov | 1-800-332-2667
Docket No.: ________________________
State File No.: ______________________
Date of Injury: _____________________
___________________________________________________________________________
Employee
v.
___________________________________________________________________________
Employer
Notice is given that ____________________________________________________________________
[List name(s) of all appealing party(ies). Use separate sheet if necessary.]
appeals the following order(s) of the Tennessee Court of Workers’ Compensation Claims to the
Workers’ Compensation Appeals Board (check one or more applicable boxes and include the date file-
stamped on the first page of the order(s) being appealed):
□ Expedited Hearing Order filed on _______________ □ Motion Order filed on ___________________
□ Compensation Order filed on__________________ □ Other Order filed on_____________________
issued by Judge _________________________________________________________________________.
Statement of the Issues on Appeal
Provide a short and plain statement of the issues on appeal or basis for relief on appeal:
________________________________________________________________________________________
________________________________________________________________________________________
________________________________________________________________________________________
________________________________________________________________________________________
Parties
Appellant(s) (Requesting Party): _________________________________________ ☐Employer ☐Employee
Address: ________________________________________________________ Phone: ___________________
Email: __________________________________________________________
Attorney’s Name: ______________________________________________ BPR#: _______________________
Attorney’s Email: ______________________________________________ Phone: _______________________
Attorney’s Address: _________________________________________________________________________
* Attach an additional sheet for each additional Appellant *
LB-1099 rev. 01/20 Page 1 of 2 RDA 11082
Employee Name: _______________________________________ Docket No.: _____________________ Date of Inj.: _______________
Appellee(s) (Opposing Party): ___________________________________________ ☐Employer ☐Employee
Appellee’s Address: ______________________________________________ Phone: ____________________
Email: _________________________________________________________
Attorney’s Name: _____________________________________________ BPR#: ________________________
Attorney’s Email: _____________________________________________ Phone: _______________________
Attorney’s Address: _________________________________________________________________________
* Attach an additional sheet for each additional Appellee *
CERTIFICATE OF SERVICE
I, _____________________________________________________________, certify that I have forwarded a
true and exact copy of this Notice of Appeal by First Class mail, postage prepaid, or in any manner as described
in Tennessee Compilation Rules & Regulations, Chapter 0800-02-21, to all parties and/or their attorneys in this
case on this the __________ day of ___________________________________, 20 ____.
______________________________________________
[Signature of appellant or attorney for appellant]
LB-1099 rev. 01/20 Page 2 of 2 RDA 11082