Grimes v. Wal-Mart Stores Inc.

2007 NMCA 028, 154 P.3d 64, 141 N.M. 249
CourtNew Mexico Court of Appeals
DecidedJanuary 29, 2007
DocketNo. 26,634
StatusPublished
Cited by3 cases

This text of 2007 NMCA 028 (Grimes v. Wal-Mart Stores Inc.) is published on Counsel Stack Legal Research, covering New Mexico Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Grimes v. Wal-Mart Stores Inc., 2007 NMCA 028, 154 P.3d 64, 141 N.M. 249 (N.M. Ct. App. 2007).

Opinion

OPINION

SUTIN, Chief Judge.

{1} Because of work restrictions based on a prior compensable injury while working for Employer, Wal-Mart Stores Inc., Worker Andre Grimes accepted employment as a “greeter” for Employer. In that capacity, Worker apprehended a customer carrying a box after a security alarm went off indicating that the customer was leaving the store without having paid for the merchandise. Allegedly injured in the process of apprehending the customer, whom Worker took to the floor and handcuffed, Worker sought workers’ compensation benefits.

{2} The workers’ compensation judge (WCJ) specifically found:

25. Worker’s primary duties were to greet customers on their way into the store, help them with directions and returns, say good-bye to them when they left, and check receipts periodically, primarily of larger items not in bags.
26. If greeters suspected a shoplifter, or had a customer go by without showing a receipt, they were first to call security or management; most greeters had radios, but there was also a “house” phone just a few feet away as well as cashiers.
27. Greeters were not trained in security issues, including the four elements of apprehension, because they were not part of the security chain-of-command, nor did they have responsibility for security.
28. Louis R. Maez, a fellow greeter who provided some orientation for Worker, told him he should use his judgment, be courteous, not confrontational, and never touch the customer.
29. A written description of greeter job duties was provided to Worker when he accepted his return to work offer, as shown in [the job description for people greeter].
30. While it may be true that no one specifically told Worker not to use handcuffs and not to tackle customers, Employer had a right to expect that Worker would perform within the assignment provided to him.
31. Handcuffs were not part of the equipment issued to greeters, including Worker, and the use of them was prohibited by store policy except by certain trained personnel, of which Worker was not one.
32. Greeters were not to follow the customers; if Worker really believed it was part of his job to keep the product from leaving the store, when the box fell he could have retrieved the box and let the man go, but he did not.

{3} The written description Worker was given of the job of people greeter reads in pertinent part as follows:

Primary job responsibilities and functions are listed below. An Associate in this position will be expected to perform additional job-related responsibilities and duties throughout the facility as assigned and/or as necessary.

Operations

* Greets, communicates, and responds to Customer questions; locates merchandise; provides shopping and motorized carts; provides requested assistance with merchandise returns; deactivates security tags; and checks receipts.
* Stops Customers whose merchandise activates the alarm, compares merchandise to purchase receipt, and accurately maintains a log of the event.
* Monitors entrances and exits for signs of shrink and potential security risks and contacts management and/or In-Store Loss Prevention when problems are identified. Responds appropriately to emergency codes.
* Ensures a safe and clean environment by maintaining safety standards, performing maintenance, and cleaning as needed.
* Distributes Company-approved marketing or promotional materials, such as smiley face stickers.
* Demonstrates knowledge and understanding of appropriate responses to emergency codes.

One of a greeter’s “Essential Functions” of the job was: “Constantly monitors entrances and exits for signs of shrink and potential security risks,” involving “[m]onitoring areas for signs of shrink or potential security risks and contacting management or In-Store Loss Prevention when appropriate.” “Shrink” is a term for loss of merchandise through shoplifting.

{4} Employer had a written shoplifter apprehension policy. Worker submitted a requested finding of fact stating that he had never been shown Employer’s shoplifter apprehension policy. Employer’s “Shoplifter Apprehension” policy states, in pertinent part: “Only the Store or Club Manager, Co-Manager, Assistant Manager, Support Team Member acting in the capacity of management, or approved Loss Prevention personnel are authorized to apprehend a shoplifter.”

{5} Worker appeals the finding of the WCJ that “Worker’s accident did not arise out of his employment with Employer; it did not occur within the course and scope of his employment with Employer as a greeter.”

Standard of Review

{6} On appeal from workers’ compensation cases decided by the Workers’ Compensation Division, we review the sufficiency of evidence to support conclusions according to the whole record review standard. Substantial evidence is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion. The reviewing court views the evidence in the light most favorable to the agency decision, but it may not view favorable evidence with total disregard to contravening evidence.

Garcia v. Homestake Mining Co., 113 N.M. 508, 510, 828 P.2d 420, 422 (Ct.App.1992) (internal quotation marks and citations omitted).

Legal Requirements

{7} “In order for an injured employee to receive compensation under the [Workers’ Compensation] Act, the employee must be performing a service arising out of and in the course of his employment at the time of the accident, and the injury must arise out of and in the course of his employment.” Id. “[A]n injury occurs in the course of employment when it takes place within the period of employment, at a place where the employee may reasonably be, and while the employee is reasonably fulfilling the duties of employment or doing something incidental to it.” Id. at 511, 828 P.2d at 423 (internal quotation marks and citation omitted).

{8} “Violation of specific instructions which limit the scope or sphere of work which an employee is authorized to do bars recovery of [workers’] compensation for an injury so sustained.” Gough v. Famariss Oil & Refining Co., 83 N.M. 710, 714, 496 P.2d 1106, 1110 (Ct.App.1972) (internal quotation marks and citation omitted); see also Stebens v. K-Mart Corp., 99 N.M. 720, 721, 663 P.2d 379

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2012 NMCA 085 (New Mexico Court of Appeals, 2012)

Cite This Page — Counsel Stack

Bluebook (online)
2007 NMCA 028, 154 P.3d 64, 141 N.M. 249, Counsel Stack Legal Research, https://law.counselstack.com/opinion/grimes-v-wal-mart-stores-inc-nmctapp-2007.