Hemingway v. Marion County

THIS OPINION HAS NO PRECEDENTIAL VALUE. IT SHOULD NOT BE
CITED OR RELIED ON AS PRECEDENT IN ANY PROCEEDING
EXCEPT AS PROVIDED BY RULE 268(d)(2), SCACR.

THE STATE OF SOUTH CAROLINA
In The Court of Appeals

Celeste Hemingway, as Personal Representative for the
Estate of Ronnie Earl Davis and David Brown,
Appellants,

v.

Marion County and Marion County Prison Camp,
Respondents,

Appellate Case No. 2012-212621

Appeal From Marion County
William H. Seals, Jr., Circuit Court Judge

Unpublished Opinion No. 2013-UP-282
Heard June 4, 2013 – Filed June 26, 2013

AFFIRMED

Eric Marc Poulin, of Anastopoulo Law Firm, LLC, of
North Charleston, for Appellants.

D. Malloy McEachin, Jr., of McEachin & McEachin,
P.A., of Florence, for Respondents.

PER CURIAM: In this tort action, Appellants appeal the trial court's grant of
summary judgment, contending the trial court erred in finding their causes of
action are barred by the exclusivity provision of the Workers' Compensation Act
(the Act) because the claims fall within the personal comfort doctrine. According
to Appellants, because swimming is not necessary to an employee's life, comfort,
and convenience, it is not covered by the personal comfort doctrine. We affirm.

Whether the exclusivity provision of the Act applies, barring an employee-
plaintiff's tort claim against a defendant-employer, is a jurisdictional question;
therefore, it is a question of law. See Sabb v. S.C. State Univ., 350 S.C. 416, 422-
23, 567 S.E.2d 231, 234 (2002) (noting whether the Act's exclusivity provision
applies invokes a question of the circuit court's original jurisdiction); Harrell v.
Pineland Plantation, Ltd., 337 S.C. 313, 320, 331, 523 S.E.2d 766, 769, 775
(1999) (noting the determination of statutory employment and the consequent
application of the exclusivity provision is a question of law); Glass v. Dow Chem.
Co., 325 S.C. 198, 201-02, 482 S.E.2d 49, 50-51 (1997) (reviewing the appellant's
argument that the Act provided the exclusive remedy for the respondent as a
question of law because it was jurisdictional in nature). In such cases, "this [c]ourt
has the power and duty to review the entire record and decide the jurisdictional
facts in accord with the preponderance of the evidence." Harrell, 337 S.C. at 320,
523 S.E.2d at 769. "'In determining jurisdictional questions, doubts of jurisdiction
will be resolved in favor of inclusion of employees within workers' compensation
coverage rather than exclusion.'" Hill v. Eagle Motor Lines, 373 S.C. 422, 429,
645 S.E.2d 424, 427 (2007) (quoting Wilson v. Georgetown Cnty., 316 S.C. 92, 94,
447 S.E.2d 841, 842 (1994)).

The personal comfort doctrine assists a tribunal in determining whether an
employee's actions, while entirely personal activities engaged in at work, are such
that they are considered incidental to employment and therefore covered under the
Act. Osteen v. Greenville Cnty. Sch. Dist., 333 S.C. 43, 46, 508 S.E.2d 21, 23
(1998). The personal comfort doctrine provides:

Such acts as are necessary to the life, comfort, and
convenience of the servant while at work, though strictly
personal to himself, and not acts of service, are incidental
to the service, and injury sustained in the performance
thereof is deemed to have arisen out of the employment.
A man must breathe and occasionally drink water while
at work . . . . That such acts will be done in the course of
employment is necessarily contemplated, and they are
inevitable incidents. Such dangers as attend them,
therefore, are incident dangers. At the same time injuries
occasioned by them are accidents resulting from the
employment.

Mack v. Branch No. 12 Post Exch., 207 S.C. 258, 264-65, 35 S.E.2d 838, 840
(1945). However, the personal comfort doctrine "has consistently been limited to
imperative acts such as eating, drinking, smoking, seeking relief from discomfort,
preparing to begin or quit work, and resting or sleeping." Osteen, 333 S.C. at 47-
48, 508 S.E.2d at 23. Specifically, seeking relief from discomfort "includes getting
warm, getting fresh air or relief from heat, and seeking toilet facilities." Id. at 47
n.2, 508 S.E.2d at 23 n.2.

Here, the record contains testimony indicating the inmates had been working in
extreme heat. Additionally, Brown testified the inmates specifically asked if they
could get in the water to "cool off," providing direct evidence the inmates were
attempting to seek "relief from the heat." Based on this evidence, we hold the trial
court did not err in finding the inmates' actions, in getting into the river, fell within
the personal comfort doctrine.

Further, we reject Appellants' contention that the inmates' swimming was outside
the personal comfort doctrine because it was not "necessary to the life, comfort,
and convenience" of the inmates. In Osteen, the court specifically found "eating,
drinking, smoking, seeking relief from discomfort, preparing to begin or quit work,
and resting or sleeping," to be within the personal comfort doctrine. 333 S.C. at
47-48, 508 S.E.2d at 23. We read the "necessary to the life, comfort, and
convenience" language to apply more broadly to the general categories set forth in
Osteen, rather than to the specific manner in which an employee might accomplish
those categories. In essence, the court was saying, as a matter of law, these
categories are "necessary to the life, comfort, and convenience" of an employee.1

1
Professor Larson, often cited by South Carolina courts as an authority in workers'
compensation law, seems to agree, opining after reviewing the cases finding
smoking "does not constitute a departure from the employment, it becomes
obvious there is little left of the 'necessity' test in qualifying activities for the
personal comfort rule." 2 Lex K. Larson, Larson's Workers' Compensation §
21.04 (Mathew Bender, Rev. Ed.) (2012); see Bentley v. Spartanburg Cnty., 398
S.C. 418, 422, 730 S.E.2d 296, 298 (2012) (citing Professor Larson's treatise to
identify the three categories into which work-related injuries fall); Cauley v. Ross
Accordingly, we hold the trial court did not err in finding Appellants' actions fell
within the personal comfort doctrine. In reaching this determination, we also note
other jurisdictions have reached the same conclusion on similar facts to this case.
See LFI Pierce, Inc. v. Carter, 829 So.2d 158 (Ala. Civ. App. 2001) (finding
employee's actions in jumping into a lake to fall within the personal comfort
doctrine); State Comp. Ins. Fund v. Workmen's Comp. App. Bd., 434 P.2d 619 (Cal.
1967) (finding employee's injury from swimming in a nearby canal on a hot day to
be within the personal comfort doctrine). Consequently, the trial court did not err
in finding Appellants' claims were barred pursuant to the Act's exclusivity
provision.

AFFIRMED.

SHORT, THOMAS, and PIEPER, JJ., concur.

Builders Supplies, Inc., 238 S.C. 38, 40, 118 S.E.2d 879, 880 (1961) (adopting
Professor Larson's rule for injuries occurring while assisting co-employees).