Burnett v. INA

810 S.W.2d 833, 1991 Tex. App. LEXIS 1410, 1991 WL 93514
CourtCourt of Appeals of Texas
DecidedMay 31, 1991
DocketNo. 2-90-227-CV
StatusPublished
Cited by2 cases

This text of 810 S.W.2d 833 (Burnett v. INA) is published on Counsel Stack Legal Research, covering Court of Appeals of Texas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Burnett v. INA, 810 S.W.2d 833, 1991 Tex. App. LEXIS 1410, 1991 WL 93514 (Tex. Ct. App. 1991).

Opinion

OPINION

LATTIMORE, Justice.

This is a workers’ compensation case. The issue in this appeal is whether appellant was in the course and scope of her employment when she was injured while playing softball at a company-sponsored picnic. The trial court granted a summary judgment in favor of the workers’ compensation insurance carrier.

We affirm.

Appellant, Mavis Burnett, was employed by General Dynamics in the materials department. Appellant was injured while warming up for a softball game at a company-sponsored picnic. Appellee, INA, filed a motion for summary judgment contending that the uncontradicted summary judgment evidence established that appellant was not in the course and scope of her employment when she was injured.

In a summary judgment case, the issue on appeal is whether the movant met his burden for summary judgment by establishing that there exists no genuine issue of material fact and that he is entitled to judgment as a matter of law. City of Houston v. Clear Creek Basin Authority, 589 S.W.2d 671, 678 (Tex.1979); Tex.R. Civ.P. 166a. The burden of proof is on the movant, and all doubts as to the existence of a genuine issue as to a material fact are resolved against him. Great American Reserve Insurance Co. v. San Antonio Plumbing Supply Co., 391 S.W.2d 41, 47 (Tex.1965). Therefore, we must view the evidence in the light most favorable to the nonmovant. See id. In deciding whether there is a material fact issue precluding summary judgment, all conflicts in the evidence will be disregarded and the evidence favorable to the nonmovant will be accepted as true. Montgomery v. Kennedy, 669 S.W.2d 309, 311 (Tex.1984); Farley v. Prudential Insurance Co., 480 S.W.2d 176, 178 (Tex.1972). Every reasonable inference from the evidence must be indulged in favor of the nonmovant and any doubts resolved in his favor. Montgomery, 669 S.W.2d at 311. Evidence which favors the movant’s position will not be considered unless it is uncontroverted. Great American, 391 S.W.2d at 47. The summary judgment will be affirmed only if the record establishes that the movant has conclusively proved all essential elements of his cause of action or defense as a matter of law. City of Houston, 589 S.W.2d at 678.

The only summary judgment evidence before us on appeal is portions of appellant’s deposition attached to appellee’s motion for summary judgment and to appellant’s response.

The summary judgment evidence reveals that three departments within General Dynamics sponsored a picnic for employees and their guests. The picnic was held at the General Dynamics Recreation Area. Additionally, the picnic was not held during working hours, but on Saturday, when appellant was off work.

In her deposition, appellant testified that attendance at the picnic “wasn’t mandatory.” She also testified that not everyone from her department attended the picnic. Appellant admitted that attendance at the picnic did not affect her job. She also [835]*835stated that failing to attend would not have resulted in any adverse effect. Appellant testified that people at the picnic were free to come and go as they pleased. Appellant testified, however, that attendance was encouraged. Appellant stated that “all I remember is [them] just talking it up and encouraging us to participate and be there.”

Appellant was injured while warming up for a second softball game. She testified that the game was one of several scheduled events. The attendees were given the discretion to decide which events, if any, they would choose to participate in.

Former Tex.Rev.Civ.Stat.Ann. art. 8309, § 11 provided that:

The term “injury sustained in the course of employment,” as used in this Act, shall not include:
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(4) An injury caused by the employee’s wilful intention and attempt to injure himself, or to unlawfully injure some other person, but shall include all other injuries of every kind and character having to do with and originating in the work, business, trade or profession of the employer received by an employee while engaged in or about the furtherance of the affairs or business of his employer whether upon the employer’s premises or elsewhere.

Id. (emphasis added).

A claimant seeking compensation benefits under the Texas Workers’ Compensation Act must show: (1) the injury was received in the course of the claimant’s employment; and (2) the injury was of a kind and character having to do with and originating in the employer’s work, trade, business, or profession. Texas General Indemnity Co. v. Bottom, 365 S.W.2d 350, 353 (Tex.1963); North River Insurance Co. v. Purdy, 733 S.W.2d 630, 633 (Tex.App.-San Antonio 1987, no writ).

There have been a number of cases decided by Texas courts concerning whether an employee at an employer’s recreational function was injured in the “course and scope of employment.” See, e.g., Mersch v. Zurich Insurance Co., 781 S.W.2d 447, 451 (Tex.App.-Fort Worth 1989, writ denied) (holding that employee injured during softball game at company-sponsored picnic she was voluntarily attending was not in course and scope of employment); Fidelity & Casualty Co. v. Musick, 562 S.W.2d 38, 40 (Tex.Civ.App.-Tyler 1978, writ ref’d n.r.e.) (finding that employee injured while diving into lake after digging pit for company barbecue had deviated from the event and was not in the course and scope of employment); Employers Mutual Liability Insurance Co. v. Sanderfer, 382 S.W.2d 144, 148 (Tex.Civ.App.—Houston 1964, writ ref’d n.r.e.) (holding that vice president of oil well company was in course and scope of employment when he fell from a tree on a deer hunt because he went on trip at the suggestion of president to promote good will for company); Campbell v. Liberty Mutual Insurance Co., 378 S.W.2d 354, 357 (Tex.Civ.App.-Eastland 1964, writ ref’d n.r.e.) (holding that employee who drowned after jumping from boat was not in course and scope of employment since employee was voluntarily at company-sponsored outing and received no compensation).

Texas case law holds that in order for an injury occurring while an employee is en[836]

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Cite This Page — Counsel Stack

Bluebook (online)
810 S.W.2d 833, 1991 Tex. App. LEXIS 1410, 1991 WL 93514, Counsel Stack Legal Research, https://law.counselstack.com/opinion/burnett-v-ina-texapp-1991.