IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
_______________________________________
No. 99-30506
_______________________________________
MARY LOUISE HARRIS and THOMAS ALEX HARRIS,
Plaintiffs-Appellants,
versus
WAL-MART STORES, INC.,
Defendant-Appellee.
_________________________________________________
Appeal from the United States District Court
for the Middle District of Louisiana
_________________________________________________
March 16, 2000
Before GARWOOD, WIENER, and DENNIS Circuit Judges:
WIENER, Circuit Judge:
In this diversity case, Plaintiff-Appellant Mary Louise Harris
(“Harris”) appeals the district court’s grant of summary judgment
to Defendant-Appellee Wal-Mart Stores, Inc. (“Wal-Mart”) on the
basis that workers compensation is her exclusive remedy and thus
bars her torts claim. We affirm.
I.
Facts and Proceedings
Harris was employed by Wal-Mart as the manager of the boys’
wear department. On the day in question, she arrived at the Wal-
Mart store at 5:55 a.m. to report for her 6:00 a.m. shift. As
required, she entered the front of the store through the public
entrance – there was no special entrance for employees – and
1
proceeded to the rear of the store where the employee time-clock
was located. Wal-Mart policy required workers to clock-in
immediately before starting work; they were prohibited from
clocking-in early. To get to the time-clock that morning, Harris
walked down the lamp aisle, and, as she was doing so, two fellow
employees who were stocking shelves negligently dropped a box
weighing 200 pounds on her. After the accident, Harris clocked-in
and then completed an accident report. She suffered injury to her
lower back as a result of the accident.
Harris sued Wal-Mart in tort in state court. Wal-Mart removed
the case to federal court on the basis of diversity and then filed
a motion for summary judgment, contending that the Louisiana
workers compensation statute provided Harris’s exclusive remedy
against her employer. The district court granted summary judgment,
and Harris appealed.
II.
Analysis
We review the district court’s grant of summary judgment de
novo, applying the same standard as that court.1 In diversity
cases, we apply the law of the forum state. As Wal-Mart advanced
exclusive remedy as an affirmative defense, it bore the burden of
proof on the elements of that provision of the law.2
La. Rev. Stat. Ann. § 23:1031(A) requires an employer to pay
1
United States v. Johnson, 160 F.3d 1061, 1062 (5th Cir.
1998).
2
Mundy v. Department of Health and Human Resources, 593 So.2d
346, 349 (La. 1992).
2
compensation if a worker is injured “by accident arising out of and
in the course of his employment.” La. Rev. Stat. Ann. §
23:1032(A)(1)(a) mandates that, between employer and employee, such
remedy “shall be exclusive.”
To be covered by workers compensation, the accident must (1)
“arise out of” and (2) occur “in the course of” employment.
Louisiana courts view these factors as mutually interdependent:
“In a close case a strong showing of ‘course of employment’ has
been held to counterbalance a relatively weak showing of ‘arising
out of employment.’”3 The obverse applies equally.
The “arising out of” prong focuses on the character or source
of the risk and on the relationship of the risk to the nature of
employment. “An accident arises out of employment if the risk from
which the injury resulted was greater for the employee than for a
person not engaged in the employment.”4 The principle criteria for
determining “course of employment” are time, place, and employment
activity.5
Mundy v. Department of Health and Human Resources6 contains
the Louisiana Supreme Court’s most recent treatment of the question
central to this appeal. In that case, a licensed practical nurse
on her way to report to work at a hospital was stabbed by an
unknown assailant in an elevator at the hospital. She had arrived
3
Id.
4
Id.
5
Id.
6
593 So.2d 346 (La. 1992).
3
at the hospital at approximately 11:17 p.m. to report for her
shift. Employees on that shift were expected to arrive at 11:15
p.m. but were not considered late until 11:20 p.m.; the preceding
shift did not actually end until 11:30 p.m. Mundy entered the
hospital on the first floor and proceeded to the east bank of
elevators, one of which would take her to her work station on the
eleventh floor. As the elevator doors were closing, an
unidentified man jumped in the elevator and pushed the button for
the second floor. As he was about to exit the elevator on the
second floor, he turned back toward Mundy and attacked her with a
knife.
Mundy sued her employer in tort. The court held that Mundy’s
injury neither arose out of nor occurred in the course of her
employment by the hospital, and allowed her tort claim to proceed.
Louisiana courts have recognized that Mundy represents the
“extreme outer limits” of this area of the law and that the state’s
supreme court has not encouraged expansion of that holding to
recognize more employee torts claims against their employers
outside of workers compensation.7 We have previously noted that
Louisiana courts clearly hold that “the compensation statute is to
be liberally construed so as to include all services that can
reasonably be said to be within the statute not only when the
injured person seeks its protection, but when he attempts to have
7
See, e.g., Bosse v. Westinghouse Elec., Inc., 637 So.2d
1157, 1159-60 (La. App. 1994).
4
himself excluded from the coverage of the act.”8 The statute
provides an efficient means of compensating employees for workplace
injuries and avoids exposing employers to unlimited liability.
“The Workers’ Compensation Act represents a compromise where the
employer is responsible to pay limited benefits regardless of fault
and the employee loses his right to fully recover in tort. To
effectuate the surrender of these valuable rights by both the
employer and employee, recovery is exclusively limited to benefits
under the Workers' Compensation Act and the employer has immunity
from tort actions.”9
We find Mundy distinguishable in several respects and,
accordingly, conclude that Harris’s recovery against Wal-Mart is
limited to workers compensation.
1. Course of Employment:
A. Place: In Mundy, the nurse’s work duties were limited to
the eleventh floor, which she had not yet reached at the time of
the attack. She had no job responsibilities and had never
performed work duties on either the first or second floors, between
which the attack occurred. In this case, by contrast, although
Harris was the manager of the boys’ department, her duties were not
limited to that space. Wal-Mart explicitly required all employees,
especially supervisors, to monitor the entire sales floor for
8
Isthmian S.S. Co. of Delaware v. Olivieri, 202 F.2d 492, 494
(5th Cir. 1953).
9
Thomas v. State, 662 So.2d 788, 791-92 (La. App. 1995)
(citing W. MALONE & A. JOHNSON, WORKERS' COMPENSATION LAW AND PRACTICE § 361,
in 14 LOUISIANA CIVIL LAW TREATISE (3d ed. 1994)).
5
safety and other problems. Even though most of her work was
performed in the boys’ department, Harris did have job
responsibilities throughout the store, including the lamp aisle
where she sustained the injury. Thus, Harris (unlike Mundy) was at
the place of her employment.10
B. Time: On this factor, the cases are indistinguishable. In
Mundy, the nurse was proceeding to her work station approximately
three minutes prior to the exact time she had to arrive without
being considered late. In this case, Harris was proceeding to the
time clock from the front of the store approximately five minutes
before her shift began. Thus, in each case, the plaintiff was
injured only a few minutes before her scheduled clock-in time.11
C. Activity: In Mundy, the nurse clearly was performing no
job duties or responsibilities at the time of the attack. She was
proceeding via a public elevator, an enclosed conveyance, to her
workplace some ten stories above. In contrast, contends Wal-Mart,
Harris was performing a job duty by proceeding to clock-in because
Wal-Mart policy explicitly required her to do so as a prerequisite
to beginning her shift and prohibited her from clocking-in early.
In addition, she could reach the time clock only by passing through
10
See Bosse, 637 So.2d at 1159 (distinguishing Mundy on the
basis that the nurse had no work duties on the first or second
floors where she was injured whereas Bosse was injured getting off
the elevator on the seventh floor where he worked).
11
Cf. Mitchell v. Brookshire Grocery Co., 653 So.2d 202, 205
(La. App. 1995) (noting that Louisiana jurisprudence has been
inclined to recognize workers compensation coverage of injuries
occurring on the employer’s premises within a reasonable time after
the completion of the employee’s work day).
6
the aisles from the front entrance to the rear of the store.12
Thus, urges Wal-Mart, Harris was performing a required activity in
the course of employment at the time of the injury.
We are not entirely persuaded by that argument. Logically,
Harris, Mundy, and virtually all other workers are required to pass
through some part of their employers’ premises to arrive at the
specific work station. That logical conclusion does not
necessarily make the trip a job-related activity, however.
Nevertheless, as noted above in our “place” analysis, Harris’s job
description did require her to monitor the entire sales area of the
store for problems, which could well have required her to observe
the state of the aisles in the lamp and other departments as she
made her way to the time-clock at the rear of the store.13 There
is, however, no evidence to that effect in the record.
As Wal-Mart’s showing on course of employment is relatively
weak, it must produce stronger evidence that the accident arose out
of Harris’s employment.14
12
Cf. Mundy, 593 So.2d at 350 (noting availability of other
alternative routes for her to reach her work station).
13
See, e.g., Hughes v. Olive Garden Italian Restaurant, 731
So.2d 1076, 1080 (La. App. 1999) (holding that cashier, who had
clocked out, but was tasting a new dessert in the walk-in freezer
where she slipped was engaged in a job “activity” in the “course of
employment” because employees were encouraged, although not
required, to taste desserts so they could recommend them to
customers); see also Mitchell, 653 So.2d at 204 (holding that
employee is entitled to reasonable period of time, which is
regarded as within the course of employment, for attendance to
personal needs, outside of the day’s work, while on employer’s
premises).
14
Mitchell, 653 So.2d at 204 (when “the employee is barely
within the outer boundary of the course of employment, a very
7
2. Arises Out of Employment: This element requires Wal-Mart
to show that the character or source of the risk is greater for an
employee than for a person not engaged in employment.15 We conclude
that Wal-Mart’s showing on this element is stronger than was
Mundy’s employer’s proof.
In Mundy, the nurse was injured by a third-party criminal
attack which could have occurred (1) to anyone (2) anywhere. The
presence and act of the criminal was certainly unanticipated
equally by an employee or an invitee. In this case, by contrast,
Harris was injured by a box that was dropped on her as a result of
the negligence of her fellow Wal-Mart employees who were stocking
the store shelves. Their presence and activity was fully
anticipatable.
“A physical defect in the premises of the employer is very
different from an independent random act of violence committed by
an unrelated third party stranger. A random act of violence could
occur anywhere, but a defect in the premises at the place of
employment is ‘peculiar and distinctive’ to that location.”16 We
perceive Harris’s injury from a box accidentally dropped by co-
workers engaged in typical work activities as being considerably
more analogous to a “physical defect” in the premises that is
strong showing ... that the risk arose out of the employment is
necessary”).
15
Mundy, 593 So.2d at 349.
16
Bosse, 637 So.2d at 1159 (citing Templet v. Intercoastal
Truck Line, Inc., 230 So.2d 74 (La. 1969) and noting that Templet
was cited with approval in Mundy).
8
“peculiar and distinctive” to the location than is a random
criminal attack in a public place such as the assault suffered by
Mundy in the elevator. In fact, the risk of a falling box arises
even more directly out of the employment than does a premises
defect, such as a parking lot pothole;17 Wal-Mart’s essential
business is purchasing, displaying, and selling merchandise whereas
a grocery store’s essential business is not maintaining a parking
lot (even though the presence of the lot undoubtably benefits the
business).
Louisiana courts have noted that the fact that an employee is
exposed to a particular risk of injury with greater frequency than
a member of the general public, is relevant to the “arising out of
employment” element. The Louisiana Supreme Court quoted the United
States Supreme Court at length for the proposition that an
employee’s injury may arise out of employment and thus be covered
by workers compensation if the employee is “peculiarly exposed,”
through regular, frequent contact, to a common hazard (in that
case, railroad tracks), even though the general public also faces
that risk on an intermittent basis.18
Falling boxes are the sort of risk that is greater for Harris,
17
See, e.g., Mitchell, 653 So.2d at 205.
18
Templet 230 So.2d at 80 (citing Cudahy Packing Co. of
Nebraska v. Parramore, 263 U.S. 418 (1923)). “As an employee at
that location, plaintiff must be presumed to ‘encounter’ this risk
‘to a greater extent or frequency than by the general public.’”
Bosse, 637 So.2d at 1159 (citing Mundy, 593 So.2d at 350) (exposure
to defective elevator that did not level out at floor); see also
Mitchell, 653 So.2d at 205 (exposure to pothole in parking lot);
Francisco v. Harris Management Co., 643 So.2d 386, 388 (La. App.
1994) (exposure to obstructions in poorly lit parking lot).
9
as an off-the-clock employee of Wal-Mart, than for any given
customer who is not an employee of Wal-Mart. Presumably, Harris
was exposed to the potentiality of injury by negligent co-workers
at least four times each day, clocking in and out once in the
morning, twice at lunch, and again at her shift’s end. Thus, the
risk of injury from her employment was many times greater than any
given non-employee of Wal-Mart. We conclude that Wal-Mart made a
relatively strong showing that the risk of injury “arose out of
employment,” even though its showing on “course of employment” was
relatively weak. We are satisfied that when all relevant facts and
circumstances are viewed as a whole, Harris’s claim is covered by
workers compensation and is thus her exclusive remedy against her
employer.
III.
Conclusion
We hold that even though the injury to Harris was barely
incurred “in the course of” her employment, the risk clearly “arose
out of” her employment. As such, her claim for damages caused by
her co-workers’ negligence while all were on their common
employer’s premises is covered by workers compensation exclusively.
We therefore affirm the district court’s grant of summary judgment,
rejecting Harris’s action in tort against her employer, Wal-Mart.
AFFIRMED
10