Scheper ex rel. Scheper v. Hair Repair, Ltd.

825 S.W.2d 1, 1991 Mo. App. LEXIS 1483, 1991 WL 184855
CourtMissouri Court of Appeals
DecidedSeptember 24, 1991
DocketNo. 59169
StatusPublished
Cited by9 cases

This text of 825 S.W.2d 1 (Scheper ex rel. Scheper v. Hair Repair, Ltd.) is published on Counsel Stack Legal Research, covering Missouri Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Scheper ex rel. Scheper v. Hair Repair, Ltd., 825 S.W.2d 1, 1991 Mo. App. LEXIS 1483, 1991 WL 184855 (Mo. Ct. App. 1991).

Opinions

AHRENS, Judge.

Claimant employee, Charlene Seheper, by her guardian and conservator, appeals from a final award of the Labor and Industrial Relations Commission (Commission) denying her workers’ compensation benefits. Claimant sustained injuries in an automobile accident after she was assaulted and abducted by a former boyfriend. An Administrative Law Judge (AU) found claimant’s injuries were not in the course of and did not arise out of her employment with Hair Repair, Ltd.; the Commission upheld the AU’s decision. We affirm.

The evidence reveals that on September 17, 1984, the date of injury, claimant was employed as a hair stylist for Hair Repair, Ltd., an employer operating under and subject to the provisions of the Missouri Workers’ Compensation Act. Prior to the date of injury, claimant had been involved in a stormy relationship with one Patrick Harrison; claimant had attempted to end the relationship several months earlier, but Harrison wanted the relationship to continue.

On July 22, 1984, claimant filed a complaint with the Cape Girardeau Police Department, alleging that Harrison assaulted her and stole her keys and purse. Two days later, Harrison forced his way into an apartment located above Hair Repair, Ltd., and began choking claimant. Claimant left with Harrison after he stated he would kill her if she didn’t. Driving at a high rate of speed, Harrison stated that if he couldn’t have claimant, no one could. Harrison went to his residence and held claimant for nine hours against her will, releasing her only when she convinced him to seek help at a mental health facility. As a result of the incident, Harrison was charged with trespassing, false imprisonment, and two counts of assault. Harrison was released on bond and ordered not to contact claimant or her family. On September 10, 1984, Harrison pled guilty to the assault charges; he was scheduled for sentencing on October 22, 1984.

Early in the evening on September 17, 1984, Harrison went to his fraternity house in search of a firearm. Extremely agitated, Harrison stated, “Someone is fucking with me and I’m going to fuck right back.” Unable to locate a gun, Harrison took a butcher knife from the kitchen and left in a borrowed car, driving at a high rate of speed. At approximately 7:00 p.m., Harrison went to claimant’s apartment, stating that he wanted to talk to claimant. Present were claimant, her sister, and Tim Brooks, who was claimant’s boyfriend at the time. Harrison spoke with claimant but left when claimant’s parents arrived. During the conversation, Harrison told claimant he was going to hurt her, and that if he couldn’t have her, no one could.

Claimant, Brooks, and claimant’s sister left the apartment to attend an employee meeting at Hair Repair, Ltd. concerning an upcoming fashion show sponsored by the salon. Shortly after the salon closed at 8:00 p.m., Harrison entered through the back door. Harrison attempted to speak with claimant; when she refused to talk with him, Harrison tried to force her to leave the building with him. Brooks and Tim Roth, a customer scheduled to emcee the salon’s fashion show, attempted to overpower Harrison. The three men scuffled, and Harrison stabbed Brooks in the leg. At some point before or during the struggle, Harrison told claimant that if he couldn’t have her, no one could, and that he would kill her. After the stabbing, Harrison forced claimant at knifepoint to leave the building; he then forced her into the car he had earlier borrowed from his fraternity brother, and drove away from the salon.

Police attempted to stop Harrison’s vehicle, but Harrison eluded them. Travel-ling at a speed in excess of 90 miles per hour, Harrison’s vehicle crossed a traffic median and proceeded northbound in the southbound lane toward a line of traffic led by a garbage truck; officers observed that [3]*3Harrison had his arm around claimant’s neck. Harrison jerked the steering wheel in the direction of the oncoming truck, and the two vehicles collided head-on. Harrison was killed, and claimant suffered massive injuries.

Claimant, by her guardian and conservator, filed a claim for workers’ compensation benefits. The parties stipulated that claimant is permanently and totally disabled. At the hearing on the claim, the AU denied compensation, finding that claimant’s injuries did not arise out of and were not in the course of her employment at Hair Repair, Ltd., since they were unrelated to claimant’s employment and were not attributable to a “neutral” assault predicated on an unexplained happening. The Commission upheld the AU’s order.

The sole issue on appeal is whether the Commission erred in affirming the AU’s decision to deny claimant benefits. Appellate review of this case is limited to a determination of whether the Commission’s decision is supported by competent and substantial evidence, upon review of the entire record and consideration of the evidence in a light most favorable to the award. Dillon v. General Motors, 784 S.W.2d 915, 916 (Mo.App.1990); § 287.495.-1(4) RSMo 1986.

Every employer subject to Missouri’s workers’ compensation statute is strictly liable to furnish compensation for the personal injury or death of an employee resulting from an “accident arising out of and in the course of his employment.” § 287.120.1 RSMo (Supp.1990). An “accident” that arises out of and in the course of employment includes but is not limited to “injury or death of the employee caused by the unprovoked violence or assault against the employee by any person.” Id.

Missouri recognizes three types of assaults: (1) those invited by the dangerous nature of the employee’s duties or environment, or resulting from some risk directly attributable to the employment; (2) those “committed in the course of private quarrels that are purely personal to the participants”; and (3) “[ijrrational, unexplained or accidental assaults of so-called “neutral” origin, which, although they occur ‘in the course of’ the victim’s employment, cannot be attributed to it on any more rational basis than that the employment afforded a convenient occasion for the attack to take place.” Person v. Scullin Steel Co., 523 S.W.2d 801, 803-04 (Mo. banc 1975). Only injuries resulting from assaults committed in the course of private quarrels are not compensable under § 287.-120. Id.; Olivio v. TLI, Inc., 731 S.W.2d 395, 397 (Mo.App.1987).

Under the workers’ compensation statute, a compensable accident must both “arise out of” and be “in the course of” claimant’s employment. § 287.120.1 RSMo (Supp.1990). The terms “arising out of” and “in the course of” are separate tests, and both must be satisfied in order for the accident to be compensable. Zahn v. Associated Dry Goods Corp., 655 S.W.2d 769, 772 (Mo.App.1983). If an employee “in the course of” employment is the victim of a “neutral” assault, then as a matter of law the assault is deemed to have “arisen out of” the employment. Allen v. Dorothy’s Laundry and Dry Cleaning Co., 523 S.W.2d 874, 878-79 (Mo.App.1975).

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Bluebook (online)
825 S.W.2d 1, 1991 Mo. App. LEXIS 1483, 1991 WL 184855, Counsel Stack Legal Research, https://law.counselstack.com/opinion/scheper-ex-rel-scheper-v-hair-repair-ltd-moctapp-1991.