Austin v. Thrifty Diversified, Inc.

ROBERT M. BELL, Judge. Douglas and Shirley Austin (appellants), parents of John Douglas Austin, the decedent, appeal from the judgment of the Circuit Court for Baltimore County granting summary judgment in favor of Thrifty Diversified, Inc., t/a Better Engineering, appellee. Questioning only the propriety of the court’s ruling on the summary judgment motion, they ask: 1. Did the lower court err in ruling that the affidavit produced by appellee is not in conflict with the facts produced by the pleadings and affidavits produced by the appellants? ¹⁵² 2.

Did the decedent suffer an injury that arose out of, and in the course of, his employment as the phrase is defined by Article 101, § 21(b)(5) of the Annotated Code of Maryland? We will affirm. Appellants brought suit against appellee for the wrongful death of their son. Their complaint alleged that appellee negligently failed to maintain and repair equipment used by the deceased; that appellee failed properly to supervise and warn the deceased of the dangerous and defective condition of the equipment; and that appellee violated provisions of the Maryland Occupational Safety Act, Md.Code Ann., art. 89, §§ 28-49D.

Appellee answered the complaint and engaged in discovery, which consisted of propounding interrogatories to appellants. After appellants had responded to the interrogatories, appellee moved for summary judgment on the ground that appellants’ exclusive remedy was under the Maryland Workers’ Compensation Act, Md.Code Ann., art. 101. 1 Appellants opposed the motion. Each side supported its position with affidavits. Following a hearing on the motion, the trial judge filed a Memorandum Opinion and Judgment, in which he concluded that the death of the deceased arose out of and in the course of employment.

He thus granted appellee’s summary judgment motion. This appeal followed. We glean the facts necessary to the resolution of the issues presented on this appeal from the pleadings and affidavits filed by the parties and appellants’ answers to interrogatories. See Md. Rule 2-501(e); Brady v. Ralph Parsons Company, 308 Md. 486, 495 , 520 A.2d 717 (1987); Schlossberg v. Epstein, 73 Md.App. 415, 423 , 534 A.2d 1003 (1988).

Moreover, our concern upon review of a lower court’s ruling on a motion for summary judgment being to ¹⁵³ determine whether there is a genuine dispute as to any material fact and whether the moving party is entitled to judgment as a matter of law, we view the facts in the light most favorable to the party against whom the motion is made and resolve all inferences against the moving party. May Dept. Stores v. Harryman, 65 Md.App. 534, 538 , 501 A.2d 468 (1985), aff'd, 307 Md. 692 , 517 A.2d 71 (1986); Schlossberg, 73 Md.App. at 423 , 534 A.2d 1003 . Only if our review reveals that there is no genuine dispute as to any material fact and that only one inference can be drawn from those facts will we affirm the lower court’s grant of summary judgment.

Harryman, supra. John Douglas Austin, the deceased, was hired by appellee on May 14, 1984 as a certified welder. His hourly wage for that position was $4.50 per hour. He continued in that position until his death on July 23, 1984.

Throughout the period of the deceased’s employment, appellee carried Workers’ Compensation insurance covering its employees, including the deceased. On July 23, 1984, the deceased worked his regular shift, “punching out” at 4:00 p.m. Prior to punching out, however, the deceased sought, and received, permission to use one of appellee’s arc welding machines to repair the exhaust system on a friend’s automobile. The work was to be done on appellee’s premises after the deceased’s shift had ended.

Shortly after the end of the deceased’s shift, while still on appellee’s premises working on his friend’s exhaust system, using appellee’s welding equipment, the deceased was electrocuted. In addition to the foregoing, an affidavit filed on behalf of appellants and based upon the investigation of their attorney asserted “that the decedent had: (a) Completed his employment obligations to the employer at approximately 4:00 P.M. on the day of his death. * # * $ * * (d) That the employer [did not receive], and was not intended to receive any benefit from the personal project ¹⁵⁴ on which the decedent was working at the time of his death. (e) That but for the dangerous and defective equipment loaned the decedent by the Defendant, the decedent’s death would not have occurred.” These allegations were presumably in response to assertions in affidavits filed by appellee to the effect that “an employer/employee relationship existed between the decedent and the defendant on July 23, 1984, the date of decedent’s death ...” and that “[t]he employer customarily permitted employees, who ask permission, to use its welding equipment for personal projects.” These assertions are not, however, as the lower court ruled, in conflict and, therefore, do not give rise to a genuine dispute of material fact or to conflicting inferences to be drawn from the facts. 2 Thus, it is undisputed that the deceased was, on the date of his death, employed as a welder by appellee; that when he died, the deceased had completed his work day for ¹⁵⁵ appellee and, with appellee’s permission, was using appellee’s equipment to work on a personal project on appellee’s premises; and that he was electrocuted while working on the personal project. The only issue disputed is whether the decedent’s death resulted from an injury “arising out of and in the course of” his employment.

That issue is one of law and, as such, is to be resolved by the court. Knoche v. Cox, 282 Md. 447, 457 , 385 A.2d 1179 (1978). Maryland Code Ann., art. 101 § 15 provides, in pertinent part, that: Every employer subject to the provisions of this article, shall pay or provide ... compensation ... for the disability or death of his employee resulting from an accidental personal injury sustained by the employee arising out of and in the course of his employment without regard to fault as a cause of such injury.... (Emphasis added) Moreover, “except that if an employer fails to secure the payment of compensation for his injured employees and their dependents as provided in this article,” id., “the operation of the law is exclusive of all other remedy and liability, as to both employer and employee who come within the purview of the Act, with respect to all injury arising out of and in the course of the employment.” Knoche, 282 Md. at 453 , 385 A.2d 1179 .

See American Radiator & Standard Sanitary Corp. v. Mark Engineering Company, 230 Md. 584, 590 , 187 A.2d 864 (1963). See also Victory Sparkler Co. v. Francks, 147 Md. 368, 376-77 , 128 A. 635 (1925), in which the Court of Appeals, in making the same point, stated: In other words, the statute has given to labor what it never had before, and has taken from capital what it had always enjoyed, and has compensated the latter by limiting its liability, while engaged in hazardous employment, and conforming to the act, to the payment of compensation only to those who sustain an injury, arising out of and in course of their employment, that is compensable under the act. ¹⁵⁶ As a consequence, it being undisputed that appellee maintained workers’ compensation insurance covering the deceased, unless the personal injury did not arise out of or in the course of employment, appellants may not maintain this wrongful death action. Appellants assert that the trial court erroneously granted summary judgment inasmuch as the facts disclosed that the deceased’s death was not the result of an injury arising out of and in the course of employment. To reach this conclusion, they interpret § 21(b)(5) literally to require that the deceased be engaged in the employment for which he was hired at the very moment of death.

See note 1, supra. Since, they continue, the deceased had punched out some one and a half hours before his death, notwithstanding that he remained on the employer’s premises, used, with the employer’s permission, the employer’s equipment, and the employer gained no benefit from the work that the deceased was performing, his death did not arise out of or in the course of employment. Consequently, they conclude, at the very least, the facts were conflicting and summary judgment should have been denied. We do not agree. “The words ‘out of’ and ‘in the course of’ employment as used is the [Workers’] Compensation Act are not synonymous, and both must be satisfied by the claimant to bring his case within the operation of the Act.” Pariser Bakery v. Koontz, 239 Md. 586, 590 , 212 A.2d 324 (1965). 3 “Out of employment” refers to the cause or origin of the accident and “in the course of employment” relates to the ¹⁵⁷ time, place, and circumstances under which it occurred.

Slovsky, 71 Md.App. at 251, 524 A.2d 1245 . When the issue is whether an injury arises out of employment, the relevant inquiry is the causal connection between the injury and the employment. Knoche, 282 Md. at 455 , 385 A.2d 1179 . If the injury “results from some obligation, condition or incident of the employment, under the circumstances of the particular case,” Department of Correction v. Harris, 232 Md. 180, 184 , 192 A.2d 479 (1963), it arises out of employment.

The courts of this State have given the words “arising out of” a liberal construction. Knoche, 282 Md. at 456 , 385 A.2d 1179 ; National Indemnity Co. v. Ewing, 235 Md. 145, 149 , 200 A.2d 680 (1964). Whether the injury occurred in the “course of employment” involves an analysis of whether the activity out of which the injury arose had a purpose related to the employment. Wiley Manufacturing Co. v. Wilson, 280 Md. 200, 206 , 373 A.2d 613 (1977).

Thus, “an injury arises ‘in the course of employment’ when it occurs within the period of employment at a place where the employee reasonably may be in the performance of his duties and while he is fulfilling those duties or engaged in doing something incident thereto.” Watson v. Grimm, 200 Md. 461, 466 , 90 A.2d 180 (1952). When faced with the issue of whether a particular injury arose out of or in the course of employment, the courts of this State have “endeavored to keep in mind both the legislative mandate that the Workers’] Compensation Act shall be so interpreted and construed as to effectuate its general social purpose and the concomitant consideration that workers’], like other members of the general public, are not insured against the common perils of life,” Tavel v. Bechtel Corp., 242 Md. 299, 303 , 219 A.2d 43 (1966); see also Wiley Manufacturing Co. v. Wilson, 280 Md. at 217 , 373 A.2d 613 ; Coats and Clark’s Sales Corp. v. Stewart, 39 Md.App. 10, 16 , 383 A.2d 67 (1978), as well as to keep abreast of the expanding scope of the employer-employee ¹⁵⁸ relationship. See Knoche, 282 Md. at 455 , 385 A.2d 1179 . In so doing, they have allowed recovery for injuries which have been sustained, off premises, before the work day began, Harryman, 65 Md.App. at 546 , 501 A.2d 468 , during coffee breaks, Slovsky, after formal working hours, Watson, Coats and Clark’s Sales Corp. v. Stewart, and on weekends during recreational activities.

Sica v. Retail Credit Corp., 245 Md. 606 , 227 A.2d 33 (1967). There are no Maryland cases which directly address the issue before us. Nevertheless, the principles that have been enunciated in the cases involving off premises injuries in the context of social events, recreational activities, and coffee breaks are instructive. In addition, we believe that several out-of-state cases are persuasive.

See Nemeth v. Michigan Building Components, 390 Mich. 734 , 213 N.W.2d 144 (1973); Edwards v. Superior Coach Sales, Inc., 417 So.2d 1289 (La.App.), writ denied, 422 So.2d 423 (La.1982); Maheux v. Cove-Craft, Inc., 103 N.H. 71 , 164 A.2d 574 (1960); J. & G. Cabinets v. Hennington, 269 Ark. 789 , 600 S.W.2d 916 (App.1980). We start with the determination whether the injury arose out of the deceased’s employment. In Watson v. Grimm, the decedent fell from the sideboard of his employer’s garbage truck while enroute to Hagerstown after having completed his garbage collecting duties for the day. Although the employer usually drove the decedent to the farm where the decedent lived, on this particular day, the decedent told his employer that he wanted to be dropped off in downtown Hagerstown.

The Court of Appeals reversed a lower court’s determination that the decedent’s accidental injury did not arise out of his employment. In so doing, it found a causal connection between the injury and the employment both because “his employer allowed him to ride on the truck, and especially as there was some hazard in riding on the running board.” 200 Md. at 465 , 90 A.2d 180 . The Court went on to opine that: An employee’s fall need not be caused by an accident in order that his death resulting from the fall may be ¹⁵⁹ compensable under the Workmen’s Compensation Act, but it is sufficient if the death is brought about by a hazard of the employment and would not have ensued if it had not been for the employment.... Where an employee’s injury resulting from a fall is contributed to by some factor peculiar to the employment, it arises out of the employment within the meaning of the Act, although the fall has its origin solely in some idiopathy of the employee, (emphasis added) 200 Md. at 465-66 , 90 A.2d 180 .

In the instant case, the deceased’s death “would not have ensued if it had not been for the employment”; it was only because the deceased was an employee of appellee that he was permitted to use appellee’s equipment, on appellee’s premises, for a personal project. Moreover, the instrumentality of the death, the place where it happened, and the activity giving rise to it were the same as those he encountered in his employment; hence, it may be said that the death was brought about by the hazard of the employment. Under these circumstances, it may not be seriously contended that the death did not arise out of the deceased’s employment. Whether the death arose in the course of employment, requiring, as it does, an analysis of the extent to which the activity out of which death arose is sufficiently work related as to be an incident of employment, is more complex and more difficult to resolve.

Nevertheless, those cases involving deaths or injuries in connection with social events sponsored by an employer are