Court of Appeals of Texas, Houston (14th Dist.).

Andrea ANGEL, Appellant,

v.

DAVE & BUSTER’S, INC., Appellee.

No. 14-96-01102-CV.

|

April 16, 1998.

Panel consists of Justices LEE, ANDERSON, and O’NEILL.

OPINION

NORMAN LEE, Justice.

*1 This is an appeal from an order granting summary judgment in favor of Dave & Buster’s, Inc., [D & B]. In one point of error, appellant, Andrea Angel, contends the trial court erred in finding her suit is barred by the exclusive remedy provision of the Texas Workers’ Compensation Act.¹ We affirm.

Background

On June 30, 1993, Angel was working as a cocktail waitress at the Dave & Buster’s restaurant and entertainment complex in Houston, Texas. At approximately 9:45 p.m., Angel served a drink to a customer, later identified as Reginald Williams, and began talking to him. During the conversation, Williams tried to make a date with Angel, but she declined. Later that evening, Williams approached Angel and again asked her out on a date. Angel again declined, and Williams left the restaurant. Angel finished her work at about 1:50 a.m. and left the restaurant through the “employees only” exit. As she exited the restaurant into the managers’ parking lot, Williams confronted her, brandished a knife, and forced her into his car. He drove her to a remote house where he sexually assaulted her.

Angel filed suit against D & B alleging it had negligently failed to (1) properly hire, train, and supervise its security personnel, (2) provide a safe place to work, and (3) provide adequate security for its employees. D & B moved for summary judgment, contending Angel’s suit was barred by the exclusive remedy provision of the Texas Workers’ Compensation Act [the TWCA]. See Tex.Rev.Civ.Stat.Ann. art. 8308, § 4.01.² The trial court agreed and entered summary judgment in D & B’s favor. This appeal followed.

Standard of Review

The standard for reviewing summary judgment is well rehearsed. Summary judgment is proper only when the movant establishes there are no genuine issues of material fact and proves he is entitled to judgment as a matter of law. See Tex.R.Civ.P. 166a(c). To be entitled to summary judgment, a defendant must either (1) conclusively negate at least one essential element of each of the plaintiff’s causes of action, or (2) conclusively establish each element of an affirmative defense to each claim. See Science Spectrum, Inc. v. Martinez, 941 S.W.2d 910, 911 (Tex.1996). In reviewing an order granting summary judgment, we treat evidence favorable to the non-movant as true and indulge all reasonable inferences in the non-movant’s favor. Id.

Analysis

In a single point of error, Angel contends the trial court erred in granting summary judgment because her injuries resulted from intentional acts of a third person for reasons personal to her and not directed against her as an employee or because of her employment. See Tex.Rev.Civ.Stat.Ann. art. 8308, § 3.02(4) (current version at Tex.Lab.Code Ann. § 406.032(1)(c) (Vernon Supp.1997)).

An injury is compensable under the TWCA if it is sustained in the course of employment. Id. § 3.01. An employee who is injured in the course of his employment is limited to recovering under the TWCA and is precluded from asserting a negligence suit against his employer. Id. § 4.01. An injury is classified as one sustained “in the course of employment” if it meets two tests: (1) it must be of a kind or character originating in or having to do with the employer’s work; and (2) it must have occurred while the individual was engaged in the furtherance of the employer’s business or affairs. See Biggs v. United States Fire Ins. Co., 611 S.W.2d 624, 627 (Tex.1981). While the question of scope of employment is ordinarily a fact issue, many cases have held that scope of employment may be established as a matter of law. See, e.g., Dickson v. Silva, 880 S.W.2d 785, 787 (Tex.App.-Houston [1st Dist.] 1993, writ denied) (citing Turner v. Texas Employers’ Ins. Ass’n, 715 S.W.2d 52, 55 (Tex.App.-Dallas 1986, writ ref’d n.r.e.); Aetna Life Ins. Co. v. Woods, 449 S.W.2d 86, 89 (Tex.Civ.App.-Fort Worth 1969, writ ref’d n.r.e.)).

*2 As it did in its motion for summary judgment and supporting brief, D & B contends the exclusive remedy provision of the TWCA bars Angel’s suit because her injuries were sustained in the course of her employment. See Tex.Rev.Civ.Stat.Ann. art. 8308, § 4.01. Generally, injuries received going to and from work are not considered to be sustained in the course of employment, and therefore, are not covered by the TWCA. See, e.g., Texas Compensation Ins. Co. v. Matthews, 519 S.W.2d 630, 631 (Tex.1974); Turner, 715 S.W.2d at 53; Texas Employers’ Ins. Ass’n v. Dean, 604 S.W.2d 346, 349 (Tex.Civ.App.-El Paso 1980, no writ); Texas Employers’ Ins. Ass’n v. Lee, 596 S.W.2d 942, 945 (Tex.Civ.App.-Waco 1980, no writ). However, the access doctrine carves an exception to the general rule and expands the scope of employment to include cases where (1) the employer has evidenced an intention that a particular access route or area be used by the employee in going to and from work, and (2) the access route or area is so closely related to the employer’s premises as to be fairly treated as part of the premises. See Matthews, 519 S.W.2d at 631; Dickson, 880 S.W.2d at 787; Turner, 715 S.W.2d at 53. When an employee is injured in a designated “access route or area” while going to or coming from work, the injury is sustained in the course of employment and workers’ compensation coverage attaches to the same extent as if the injury occurred on the main premises. See Bordwine v. Texas Employers’ Ins. Ass’n, 761 S.W.2d 117, 119-20 (Tex.App.-Houston [14th Dist.] 1988, writ denied); Dean, 604 S.W.2d at 349; Aetna Life Ins. Co. v. Woods, 449 S.W.2d 86, 89 (Tex.Civ.App.-Fort Worth 1969, writ ref’d n.r.e.).

To support its motion for summary judgment, D & B offered excerpts from Angel’s deposition testimony in which Angel stated she (1) was working at D & B’s restaurant as a cocktail waitress the morning the incident occurred, (2) completed her work and left the restaurant by way of “the only exit [employees] were allowed to use,” (3) was abducted in the managers’ parking lot immediately after walking through the designated employee exit. This testimony establishes that D & B requires its employees to use only the rear exit and managers’ parking lot when leaving work. This summary judgment proof was uncontroverted at trial. In addition, it is undisputed that D & B’s access route, including the rear exit and the managers’ parking lot, is part of the restaurant premises. Based on this record, we find D & B’s summary judgment proof adequately demonstrates Angel was injured in a designated access route while leaving work. Angel was therefore acting in the course of her employment when she was attacked on July 1, 1993.

*3 Nevertheless, Angel contends her injuries are not compensable under the TWCA because they resulted from an assault by a third person for personal reasons. Section 3.02 of the TWCA, the “personal animosity” exception, excludes from workers’ compensation coverage those injuries “[arising] out of an act of a third person intended to injure the employee because of a personal reason and not directed at the employee as an employee or because of the employment.” Tex.Rev.Civ.Stat.Ann. art. 8308, § 3.02(4). Angel contends that because “all the summary judgment evidence” demonstrates she was injured “due to a personal reason,” her claims are not covered by the TWCA.

The Texas Supreme Court analyzed the application of the personal animosity exception in Nassar v. Security Insurance Co., 724 S.W.2d 17 (Tex.1987). In Nassar, an assistant manager of a restaurant was stabbed by the former boyfriend of Marianne Dawes, a restaurant customer. Id. at 18. The former boyfriend became jealous when he saw Nassar and Dawes sitting together in the restaurant. Id. Later that day, the boyfriend went to the restaurant and stabbed Nassar as he walked out of his office. Id. Nassar applied for benefits under the TWCA, and the insurance carrier denied coverage, on the ground that Nassar was not injured in the course of his employment. Nassar sued the carrier, and a jury found in his favor. The insurance company appealed, contending the evidence did not support the jury’s verdict. This Court agreed and reversed and rendered a take nothing judgment in favor of the defendant. See Security Ins. Co. v. Nassar, 704 S.W.2d 390 (Tex.App.-Houston [14th Dist.] 1985, rev’d, 724 S.W.2d 17 (Tex.1987)).

On appeal, the supreme court reversed, holding the evidence was sufficient to support the jury’s finding that Nassar’s injuries were sustained in the course of his employment. See Nassar, 724 S.W.2d at 19. In its analysis, the court pointed out that Nassar’s job duties included talking to restaurant customers and found that Nassar would not have sustained injuries but for him talking to Dawes. See id. Because the dispute between Nassar and the boyfriend “arose in the workplace or was exacerbated by, or in the very least, was incidental to, a duty of Nassar’s employment,” the court declined to apply the personal animosity exception. See id. The court noted the purpose of the personal animosity exception is to exclude from coverage those injuries “resulting from a dispute which has been transported into the place of employment from the injured employee’s private or domestic life.” Id. The court also articulated the following rule: “Whenever conditions attached to the place of employment or otherwise incident to the employment are factors in the catastrophic combination, the consequent injury arises out of the employment.” Id.

*4 In the present case, the uncontested summary judgment proof shows Angel was employed as a cocktail waitress, and her job duties included serving and talking to D & B’s customers. Angel’s deposition testimony indicates she did not know her assailant prior to the morning the assault occurred and met him only as a consequence of performing her job duties. Thus, as in Nassar, Angel’s injuries arose in the workplace or were exacerbated by, or incidental to, a duty of her employment.

Angel argues the mere fact she and Williams first met on the night he assaulted her does not prohibit application of the personal animosity exception. We agree.

Although one’s employment may be the occasion for the wrongful act or may give a convenient opportunity for its execution, the general rule is that an injury does not arise out of one’s employment if the assault is not connected with the employment, or is for reasons personal to the victim as well as the assailant.

Highlands Underwriters Ins. Co. v. McGrath, 485 S.W.2d 593 (Tex.Civ.App.-El Paso 1972, no writ.). As detailed above, however, Angel’s abduction and subsequent assault was closely connected with her employment. In addition, Angel did not offer any summary judgment proof to show the assault arose from a dispute that was transported into the restaurant from her private or domestic life. See, e.g., Nassar, 724 S.W.2d at 19. Consequently, the “personal animosity” exception does not apply to the facts of the present case.

Conclusion

Because D & B’s summary judgment proof shows Angel was injured in the course of her employment, Angel was limited to recovery under the TWCA. Accordingly, D & B is entitled to immunity under the exclusive remedy provision of the TWCA, and Angel’s negligence suit is barred. We overrule Angel’s point of error and affirm the trial court’s judgment.

	Footnotes
1		The alleged injuries in this case were sustained before September 1, 1993, the effective date of the current version of the Texas Workers’ Compensation Act. See Tex.Rev.Civ.Stat.Ann. art. 8308 (Vernon Supp.1993), Act of December 13, 1989, 71st Leg., 2nd C.S. Ch. 1, 1989 Tex.Gen.Laws 1 (effective January 1, 1991), repealed by Act of September 1, 1993, 73rd Leg., R.S. ch. 269, 1, 1993 Tex.Gen.Laws 987, 1132-33 (current version at Tex.Lab.Code Ann. § 401.001 (Vernon Supp.1997)). Therefore, all references to the Texas Workers’ Compensation Act are to the act as in effect at the time the injuries allegedly occurred.
2		The exclusive remedy provision in effect at the time Angel was injured provided: [R]ecovery of workers’ compensation benefits under this Act [the TWCA] is the exclusive remedy of an employee or legal beneficiary against the employer or an agent, servant, or employee of the employer for the death of or a work-related injury sustained by a covered employee. Tex.Rev.Civ.Stat.Ann. art. 8308, § 4.01 (current version at Tex.Lab.Code Ann. § 408.001(a) (Vernon Supp.1997)).