IN THE COURT OF APPEALS OF TENNESSEE
AT KNOXVILLE
March 11, 2010 Session
MICHAEL CLAWSON, ET AL. v. MICHAEL L. BURROW, ET AL.
Appeal from the Circuit Court for Carter County
No. C-8896 Jean A. Stanley, Judge
No. E2008-02412-COA-R3-CV - FILED APRIL 30, 2010
Rachel M. Clawson (“the Decedent”) was an employee of Summers-Taylor, Inc. (“the
Employer”) when she was killed in a tragic automobile-pedestrian accident. A vehicle driven
by Michael Burrow veered off Highway 91 in Carter County and struck her. She had
concluded her job duties for the day and was at the rear of her personally-owned truck
visiting with co-workers and talking on a cell phone. The Decedent’s truck was parked on
the side of Highway 91 in an area approved by the Employer for employee parking. Michael
Clawson and Sherry Clawson, the Decedent’s parents (“the Parents”), filed this wrongful
death action against Burrow and the Employer.1 The Employer filed a motion for summary
judgment, arguing that on the undisputed facts the Decedent’s death arose out of and
occurred in the course and scope of her employment. The trial court agreed and entered an
order granting the Employer summary judgment. The Parents appeal. We affirm.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court
Affirmed; Case Remanded
C HARLES D. S USANO, J R., J., delivered the opinion of the Court, in which D. M ICHAEL
S WINEY and J OHN W. M CC LARTY, JJ., joined.
Richard Baker, Knoxville, Tennessee, for the appellants, Michael Clawson and Sherry
Clawson, individually and as the parents and next of kin of Rachel M. Clawson, deceased.
1
It appears that at some point the Tennessee Department of Transportation (“TDOT”) was added as
a defendant. We have not been informed as to whether claims against TDOT and/or Burrows have been
resolved, but the status of any such claims would not have any impact on the issue that is before us. The trial
court certified the order granting summary judgment as a final judgment pursuant to Tenn. R. Civ. P. 54.02.
The notice of appeal is from the order granting summary judgment to the Employer. We will leave it to the
trial court and the parties on remand to deal with any claims against any defendant other than the Employer.
Howard E. Jarvis and Robert L. Vance, Knoxville, Tennessee, and John M. Roche, Denver,
Colorado, for the appellee, Summers-Taylor, Inc.
OPINION
I.
This is the second time this case has been before this Court. In Clawson v. Burrow,
250 S.W.3d 59 (Tenn. Ct. App. 2007)(“Clawson I”), we affirmed the trial court’s refusal
to grant summary judgment to the Employer. The Employer’s motion was predicated on its
argument that, since the Parents accepted payment from the Employer’s workers’
compensation carrier, they had elected workers’ compensation as the exclusive remedy
available to them from the Employer for the Decedent’s wrongful death. The exclusive
remedy provision is found at Tenn. Code Ann. § 50-6-108(a)(2008), which states as follows:
The rights and remedies granted to an employee subject to this
chapter, on account of personal injury or death by accident,
including a minor whether lawfully or unlawfully employed,
shall exclude all other rights and remedies of the employee, the
employee's personal representative, dependents or next of kin,
at common law or otherwise, on account of the injury or death.
In Clawson I we held that
application of the [exclusive remedy] provision depends upon
whether the Decedent’s death arose out of and in the course of
her employment. [The Employer] may not use the exclusivity
provision of § 50-6-108 to secure a judgment as a matter of law
[despite payments made] unless it can show there was no
genuine dispute of material fact that the Decedent’s death arose
out of and in the course and scope of her employment.
Id. at 63. The Employer applied to the Supreme Court for permission to appeal our judgment
in Clawson I. The Supreme Court denied the application in an order that suggested the case
was ripe for a determination of whether or not the Decedent’s death arose out of and in the
course and scope of her employment. The High Court stated:
We note, however, that the papers . . . reflect[] that the trial
court has not ruled on [the Employer’s] motion for summary
judgment [asserting that the death arose out of and in the course
-2-
of employment] and that, contrary to its August 8, 2006 order,
the trial court should, on proper motion and when the material
facts are undisputed – as they appear to be in this case, decide
whether Ms. Clawson’s injuries arose out of and in the course
of her employment.
On remand, the trial court and the parties took the High Court’s statement to heart.
The Employer promptly filed a “motion for summary judgment in accordance with the
Tennessee Supreme Court per curiam order.” (Capitalization omitted.) The new motion
incorporated the “course of employment” summary judgment motion mentioned by the
Supreme Court, filed before the appeal in Clawson I. The Parents filed a motion for
summary judgment asking that the court hold that the Decedent “was no longer in the course
of her employment at the time of the collision.” Thus, when the matter came before the trial
court for hearing, it did so on the dueling motions of the parties as well as facts submitted by
both parties as undisputed for the purposes of the motions. The most notable of the
undisputed facts are the following ones acknowledged by the Parents to be true:
3. The Decedent worked as a construction Zone Flagger.
Response: Undisputed.
4. On July 19, 2002, the Decedent had parked her vehicle along
the side of the road in a parking area approved by [the
Employer].
Response: Undisputed.
5. The accident occurred while the Decedent was standing near
her truck visiting with two co-workers.
Response: Undisputed.
6. The accident occurred less than 30 minutes after [the
Employer] dismissed the Decedent from her work duties.
Response: Undisputed.
7. The accident occurred at 4:31 p.m., one minute after [the
Employer] stopped paying the Decedent for her time.
-3-
Response: Undisputed that Rachel Clawson was paid until 4:30
p.m., however the exact time of the accident may be subject to
dispute.
8. [The Employer’s] employees often spend time on
[Employer’s] premises after being released from their work
duties.
Response: Undisputed, immaterial fact.
9. After being released from their work duties, [the Employer’s]
employees often engage in activities on [Employer’s] work
premises such as putting away tools and equipment, and . . .
often visit with each other during this time.
Response: Undisputed, immaterial fact.
10. [The Employer] does not prohibit its employees from
visiting on . . . work premises after they have been released from
their work duties.
Response: Undisputed, immaterial fact.
11. [The Employer] acquiesces to the practice of employees
meeting and visiting on . . . work premises after being released
from their duties to the extent that the activity is a regular
incident of . . . employment.
Response: Undisputed, immaterial fact.
12. In fact, after a[n] . . . employee is released from his or her
work duties, [the Employer] pays the employee until the top of
the hour or bottom of the hour following such release.
Response: Undisputed, immaterial fact.
The Employer admitted that the following facts submitted by the Parents were
undisputed for the purposes of the pending motions for summary judgment:
-4-
Terri Davis [,Rachel’s co-worker,] . . . and Rachel “done had
our vests off . . .[,]” were not loading anything in the back of the
truck, and . . . Rachel had loaded her flags, and . . . they were . . .
engaging in private conversation, . . . . when the injury suddenly
occurred.
Rachel took her orange vest off at the time Wayne Buchanan
[,her supervisor,] dismissed Terri Davis and Rachel Clawson
from their work duties.
Wayne Buchanan had nothing else for Rachel to do that day and
had no intention of asking Rachel to do anything after he
dismissed her.
Based on the above undisputed facts, the trial court granted summary judgment in a
order that held the injury both arose out of and in the course of employment. As to the
requirement that the injury must arise out of the employment, the court stated:
Generally, for an injury to arise out of employment, it must
emanate from a peculiar danger or risk inherent to the nature of
the employment. . . . The phrase “arising out of” requires that a
causal connection exist[] between the employment conditions
and the resulting injury. It seems to this Court that a flag person
being struck and killed by a negligent driver while standing just
off the roadway demonstrates a causal connection between the
conditions under which the work is performed and the resulting
injury. That is, the injury emanated from a peculiar danger or
risk inherent to the nature of Ms. Clawson’s employment and
this Court concludes that her injuries and death “arose out of”
her employment.
With regard to the requirement that the injury be “in the course of” employment, the
trial court noted that according to Carter v. Volunteer Apparel, Inc., 833 S.W.2d 492 (Tenn.
1992), an employee is still in the course of employment “a reasonable interval before and
after official working hours while the employee is on the premises engaged in preparatory
or incidental acts.” Id. at 494. The court reasoned that talking with co-employees during a
post-work break was comparable to “eating, drinking, smoking, seeking toilet facilities,
seeking fresh air, coolness or warmth” all of which were treated by the Carter opinion as
“incidental acts.” Thus, the trial court held as follows:
-5-
The . . . “. . . inquiry to determine whether the injury occurred in
the course of employment focuses on the time, place and
circumstances of injury.” [(quoting Gooden v. Coors Technical
Ceramic Co., 236 S.W.3d 151, 154 (Tenn. 2007).] Of
significance in Ms. Clawson’s case is that the uncontested
evidence demonstrates the [the Employer] knowingly permitted
its employees to gather on the side of the road where their
vehicles were parked after being released from work, that this
occurred on a regular basis, and that the company knew this
occurred. Ms. Clawson was struck less than 30 minutes after
she was released from work and within . . . a few minutes of the
time through which she was paid[,] i.e. she was released
sometime after 4:00 – she was struck at approximately 4:30 –
she was paid through 4:30 p.m. This Court can not help but
conclude that was a reasonable time for her to have delayed her
departure from the work site, that her employer acquiesced in
this delay and that Ms. Clawson’s injuries arose in the course of
her employment.
The Parents filed a motion to alter or amend which the trial court denied. The court certified
the summary judgment as final, and the Parents filed a timely notice of appeal.
II.
On appeal, the Parents raise only this one issue:
Whether the trial court erred when it granted the Employer
summary judgment.
III.
A party is entitled to summary judgment if the “pleadings, depositions, answers to
interrogatories, and admissions on file, together with the affidavits . . . 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.” Tenn. R. Civ. P. 56.04; see Penley v. Honda Motor Co., 31 S.W.3d 181,
183 (Tenn. 2000). Because the resolution of a motion for summary judgment is a matter of
law, this Court reviews the trial court’s order granting summary judgment de novo with no
presumption of correctness. Blair v. West Town Mall, 130 S.W.3d 761, 763 (Tenn. 2004).
Also, this court reviews the evidence in the light most favorable to the opponent of summary
-6-
judgment and draws all reasonable inferences in favor of that party. Staples v. CBL&C
Assocs., Inc., 15 S.W.3d 83, 88 (Tenn. 2000).
IV.
The Parents argue that the Employer did not establish that the injury to the Decedent
was a compensable injury under the workers’ compensation statutory scheme because it did
not satisfy the “time, place and circumstances” test applicable to whether the employee was
“in the course of employment” at the time of the injury. The Parents concede that the “place”
part of the test was satisfied, but challenge both the “time” aspect and the “circumstances”
aspect of the test. As to the time requirement, the Parents state, “Decedent had been released
from her employment at 4:01 p.m. or 4:10 to 4:15 p.m. but in any event some 16 to 31
minutes prior to Decedent being struck at 4:31 p.m. . . .” Thus, they argue, that “Decedent,
by 4:31 p.m., was outside the time parameters of her employment relationship, or at a
minimum, material fact questions exist as to whether those facts, and inferences to be drawn
therefrom would indicate that Decedent was no longer within the employment relationship
at the time of injury.” We cannot agree with the Parents’ argument. It could not be clearer
that the “time” factor includes a “reasonable interval before and after official working hours
while the employee is on the premises engaged in preparatory or incidental acts.” Carter,
833 S.W.2d at 494. Incidental acts include such things as “eating, drinking, smoking,
seeking toilet facilities, . . . seeking fresh air, coolness or warmth.” Id. at 495 (footnote
omitted). It is not necessary that the activity being done at the time of the injury benefit the
employer. Id. The Parents, in response to the Employer’s statement of undisputed facts,
admitted that “[The Employer] acquiesces to the practice of employees meeting and visiting
on . . . work premises after being released from their duties to the extent that the activity is
a regular incident of . . . employment.” Even without this admission, we agree with the trial
court’s legal analysis that visiting with co-workers is comparable to comfort activities such
as eating, drinking, smoking, etc. We also note that based on undisputed facts the accident
happened one minute after the end of the Decedent’s paid shift time, i.e., 4:30 p.m. We thus
hold that the “time” factor was satisfied as a matter of law based on undisputed facts.
The Parents argue at length that the “circumstances” of the injury are not shown to be
within the holding of Carter. The core of the argument, however, is that “the activity being
engaged in at the time of the injury was completely personal [and] . . . ha[s] no connection
with the employee’s job related functions, and does not show that the employee was
furthering any interest of the employer at the time of the injury.” This argument completely
discounts more than one aspect of the Carter opinion. As we have already noted, it is not
necessary that the “incidental” act benefit the employer. Id. In fact, we find it hard to
imagine how an employee’s “smoking” could benefit an employer. A key component to the
holding in Carter is that an injury can be compensable even though the employee is off duty,
-7-
if it happens in that “reasonable interval before and after official working hours while the
employee is on the premises engaged in preparatory or incidental acts.” Id. We also cannot
ignore the Parents’ admission that “the practice of employees meeting and visiting on . . .
work premises after being released from their duties [happened] to the extent that the activity
is a regular incident of . . . employment.” We believe that this admission, as well as the
record facts upon which the submission was based, coupled with the holding of Carter,
establishes, as a matter of law, that the “circumstances” of the injury were within the course
of employment.
The Parents attempt to limit the holding of Carter to “plant employees having a fixed
time to clock in.” The Parents argue that since the Decedent did not work in a plant and did
not punch a time clock Carter is inapplicable. We agree with the Employer that the Carter
opinion did not place such explicit limitations on its holding. It would be a misapplication
of law to hold that the liberal construction given to the workers’ compensation scheme – one
that requires the courts to “liberally construe the Workers’ Compensation Law in order to
secure benefits for injured workers”2 – can be utilized in some way to restrict Carter’s
application to plant employees only. We believe also that any such possibility is eliminated
by at least one recent opinion of the Supreme Court which applied the holding of Carter to
a business other than a plant setting where employees punch time clocks. In Wait v.
Travelers Indemnity Co., 240 S.W.3d 220 (Tenn. 2007), the High Court held that a tele-
commuter who worked from an office in her home was still in the course of employment
when she was attacked during her lunch break at her home.3 Id. at 227. We follow the High
Court’s lead in Wait and hold that Carter is not limited to the context of a plant employee
whose work day revolves around a time clock.
The Parents also attempt to avoid the holding in Carter by arguing that this case is
more akin to the “en route” cases such as Lollar v. Wal-Mart Stores, Inc., 767 S.W.2d 143
(Tenn. 1989). We do not see how these cases help the Parents. The Decedent was not en
route anywhere at the time of the accident. She was visiting with a co-employee on the
premises. More importantly, Lollar and other such cases are in accord with Carter in that
both lines of cases represent an expansive reading of the law to allow injuries to fall within
workers’ compensation coverage. Both lines of cases are consistent with the recent
observation of the Supreme Court that “[t]he remedial policies of the Worker’s
Compensation Act would be undermined if too severe a line were drawn controlling the
compensability of injuries that occur during the normal course of the work day after
2
Building Materials Corp v. Britt, 211 S.W.3d 706, 713 (Tenn. 2007).
3
The Court ultimately denied benefits because the injury did not arise out of the employment. Wait,
240 S.W.3d at 229-30.
-8-
employees have arrived for work, have started working, and before they have left for the
day.” Wait, 240 S.W.3d at 226 (brackets in original) (quoting Holder v. Wilson Sporting
Goods Co., 723 S.W.2d 104, 107 (Tenn. 1987)). Accordingly, we hold that, as a matter of
law, the injury to the Decedent was within the course of her employment. We believe our
holding is compelled by the policy of applying the workers’ compensation law liberally in
favor of finding that a given injury is compensable, even though our holding in this particular
case is contrary to a favorable outcome for the employee’s representatives.
The Parents argue that the Employer “fails to address the ‘arising under’ requirement
entirely” in its papers filed with the trial court and therefore should have lost the motion. We
are not convinced. The “motion for summary judgment in accordance with the Tennessee
Supreme Court per curiam order” specifically stated that “plaintiffs’ tort claims against [the
Employer] are barred by the exclusive remedy provision of the Tennessee Workers’
Compensation Act, Tenn. Code Ann. § 50-6-101 et seq. . . . because Decedent’s injury and
death arose out of and in the course of her employment. . . .” The facts submitted by the
Employer as undisputed, and admitted by the Parents to be undisputed, address the issue as
follows:
The Decedent worked as a construction Zone Flagger.
On [the day of the accident] the Decedent had parked her
vehicle along the side of the road in a parking area approved by
[the Employer].
The accident occurred while the Decedent was standing near her
truck visiting with two co-workers.
The motion also quoted from the per curiam order wherein the High Court identified the
issues for determination to include whether the injury arose out of employment. It appears
to us that not much discussion was devoted to the issue because it was not viewed to be
subject to serious debate.
Nevertheless, the trial court directly addressed the issue of whether the injury arose
out of the employment. The Parents submit, correctly, that “[a]n accidental injury ‘arises out
of’ one’s employment when there is apparent to the rational mind, upon a consideration of
all the circumstances, a causal connection between the conditions under which the work is
required to be performed and the resulting injury.” The Parents cite Hendrix v. Franklin
State Bank, 290 S.W. 30 (Tenn. 1926). The Employer phrases the test a little differently,
quoting from Wait, 240 S.W.3d at 228 as follows: “[F]or an injury to ‘arise out of’
-9-
employment, it must emanate from a peculiar danger or risk inherent to the nature of the
employment.” The trial court gave heed to both versions in stating:
It seems to this Court that a flag person being struck and killed
by a negligent driver while standing just off the roadway
demonstrates a causal connection between the conditions under
which the work is performed and the resulting injury. That is,
the injury emanated from a peculiar danger or risk inherent to
the nature of Ms. Clawson’s employment and this Court
concludes that her injuries and death “arose out of” her
employment.
We find no error in the trial court’s analysis and adopt it. Accordingly, we hold that the
injury that resulted in the Decedent’s tragic death arose out of her employment as a matter
of law based on the undisputed facts.
V.
The judgment of the trial court is affirmed. Costs on appeal are taxed to the appellants
Michael Clawson and Sherry Clawson. This case is remanded, pursuant to applicable law,
for collection of costs assessed below and such further proceedings as necessary with regard
to any claims pending against other parties.
_______________________________
CHARLES D. SUSANO, JR., JUDGE
-10-