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THE STATE OF SOUTH CAROLINA

In The Supreme Court

Linda F. Osteen, Respondent,

v.

Greenville County

School District,

Employer and Self-

Insurer, Petitioner.

ON WRIT OF CERTIORARI TO THE

COURT OF APPEALS

Appeal From Greenville County

Henry F. Floyd, Judge

Opinion No. 24843

Heard November 19, 1997 - Filed October 26, 1998

REVERSED

Richard V. Davis, of Christian & Davis, of

Greenville, and J. Mark Hayes II, of Harrison and

Hayes, of Spartanburg, for respondent.

Richard B. Kale, Jr., and Jeffrey S. Jones, both of

Haynsworth, Marion, McKay & Guerard, of Greenville, for

petitioner.

WALLER, A.J.: We granted certiorari to review the Court of Appeals'

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opinion in Osteen v. Greenville County School District, 323 S.C., 432, 475

S.E.2d 775 (Ct. App. 1996). We reverse.

FACTS

Linda Osteen ("Osteen") was an attendance clerk at Mountain View

Elementary School. She worked Monday through Friday, 8:00 a.m. to 4:00

p.m. Her duties included responsibility for attendance; helping out in the

office; running errands to classrooms; assisting in the health room; checking

in and retrieving supplies; and delivering mail to the teachers' lounge and the

cafeteria.

In the middle of August 1992, Osteen planned a week-end picnic with

her family at Lake Keowee. On Friday, August 21, 1992, Osteen brought an

ice chest with her to work which she intended to fill with ice from the school

cafeteria for use at her picnic. At approximately 3:00 p.m., Osteen,

accompanied by her son, retrieved the ice chest from her car and took it to

the school cafeteria. After filling the cooler with ice, she and her son carried

it back to her car. When Osteen picked up the chest to put it into her car,

she injured her back.1

Thereafter, Osteen filed a workers' compensation claim. The Single

Commissioner found Osteen had sustained a compensable injury under S.C.

Code Ann. § 42-1-160 (1985). The Full Commission reversed, finding Osteen's

injury did not arise out of and in the course of her employment. The Circuit

Court affirmed the Panel's finding that Osteen's injury was not compensable.

A majority of the Court of Appeals reversed; it held Osteen's injury was by

accident arising out of and in the course of her employment.

ISSUES

Did the Court of Appeals err in holding Osteen's injury was by

accident arising out of and in the course of her employment?

DISCUSSION

until February 14, 1993. She then returned to work for approximately three

weeks. She was again out of work from March 9, 1993 until May 3, 1993.

She had surgery performed on her lower back on March 11, 1993. After

returning to work on May 3, she remained for the rest of the. school year.

Her last day of work was June 17, 1994.

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The Court of Appeals held Osteen's injury fell squarely within the

"personal comfort" doctrine. This was error.

The personal comfort doctrine aids a court in determining whether, and

under what circumstances, entirely personal activities engaged in by an

employee at work may be considered incidental to employment. See Mack v.

Post Exchange, 207 S.C. 258, 35 S.E.2d 838 (1945); Arthur Larson, The Law

of Workmen's Compensation, § 21.00 et seq. (1996). In Mack v. Post

Exchange, we adopted the personal comfort doctrine by stating:

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. In these

and other conceivable instances he ministers unto himself, but in

a remote sense these acts contribute to the furtherance of his

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, 207 S.C. at 264-65, 35 S.E.2d at 840 (emphasis supplied). In Mack,

the employee arrived on work premises approximately one-half hour before

work began. While waiting, he smoked a cigarette and accidentally burned

his leg when the cigarette ignited his trousers. In finding his injuries

compensable under the Workers' Compensation Law, we held that smoking

was incidental to his employment: "Tobacco is universally recognized to be

a solace to him who uses it, and may be that such a one, unless he finally

shakes off the habit, cannot perform the labors of his life as well without it

as with it." Id. at 265, 35 S.E.2d at 841.

In McCoy v. Easley Cotton Mills, 218 S.C. 350, 62 S.E.2d 772 (1950),

we again addressed the question of whether an employee's injury occurring

during a smoking break was compensable. We stated that it was "well

settled that an employee, in order to be entitled to compensation, need not

necessarily be engaged in the actual performance of work at the time of

injury; it is enough if he is upon his employer's premises, occupying himself

consistently with his contract of hire in some manner pertaining to or

incidental to his employment." Id. at 355-56, 62 S.E.2d at 774; see also

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Beam v. State Workmen's Compensation Fund, 261 S.C. 327, 200 S.E.2d 83

(1973). In McCoy , the employee, while on his break, was accidentally struck

in the eye by a copper pipe thrown by another employee. We again

concluded that smoking was incidental to the worker's employment, and

therefore, the injury occurring during such break was compensable.

However, the personal comfort doctrine has consistently been limited

to imperative acts such as eating, drinking, smoking, seeking relief from

discomfort,2 preparing to begin or quit work, and resting or sleeping. See

Larson, §§ 21.00 - 21.714. In this case, the Court of Appeals cited numerous

cases from other jurisdictions to support its holding that Osteen's activity

came within the personal comfort doctrine. Osteen, 323 S.C. at 437-38 nn.

1-7, 475 S.E.2d at 778-79 nn. 1-7. However, all of the cited cases fit into one

of the limited categories listed above.3 This case, on the other hand, does not

fit into any of these categories: Osteen was not smoking, resting, sleeping,

eating, drinking, seeking relief from discomfort, or preparing to begin or quit

work when she was injured. Thus, we find Osteen's activity was not a

"natural incident" of her employment. As stated by Judge Huff in his

dissent, "[o]btaining ice for a family picnic the following day was not

[necessary to the life, comfort, and convenience' of [Osteen] while she was at

work." Osteen, 323 S.C. at 445, 475 S.E.2d at 782. Accordingly, we find the

Court of Appeals erred in applying the personal comfort doctrine to the

circumstances of this case.

Further, the Court of Appeals cited Cauley v. Ross Builders Supplies,

Inc., 238 S.C. 38, 118 S.E.2d 879 (1961) to hold that "even if the activity was

entirely personal to [Osteen], her injury is compensable because the deviation

seeking toilet facilities.

3 Indus. Comm'n v. Golden Cycle Corp., 246 P.2d 902 (Colo.

1952)(injured while eating lunch); Piper v. Neighborhood Youth Corps, 241

N.W.2d 868 (S.D. 1976)(drowned while sleeping during lunch break); Am.

Motors Corp. v. Indus. Comm'n, 83 N.W.2d 714 (Wis. 1957)(injured during

lunch hour); Geibig v. Ann Arbor Asphalt Constr. Co., 214 N.W. 90 (Mich.

1927)(injured while trying to get warm); Pan Am. World Airways v. Wilmot,

492 So.2d 1373 (Fla. Dist. Ct. App. 1986)(injured while lighting a cigarette);

Ford v. Bi-State Dev. Agency, 677 S.W.2d 899 (Mo. Ct. App. 1984)(injured

while going to use the restroom and get a cup of coffee); Spratt v. Duke

Power Co., 310 S.E.2d 38 (N.C. Ct. App. 1983)(injured while going to get g-um

at end of dinner hour).

p.6

from her employment was insubstantial." Osteen 323 S.C. at 440, 475

S.E.2d at 780. We find Cauley inapposite to this case.

In Cauley , this Court adopted Professor Larson's view that there are

circumstances when injuries arising out of acts outside the scope of an

employee's regular duties may be compensable. These circumstances have

been applied to: (1) acts benefitting co-employees; (2) acts benefitting

customers or strangers; (3) acts benefitting claimant;4 and (4) acts benefitting

employer privately. Larson, §§ 27.00 - 27.48. In Cauley , we adopted Larson's

rule for injuries occurring while assisting co-employees: "[An employee's]

injury was . . . not compensable unless the deviation from the course of

employment was so trivial that it could be fairly characterized as

insubstantial." Cauley, 238 S.C. at 40, 118 S.E.2d at 880; Larson § 27.15, at

5-376. In Cauley, the employee was injured while trimming a piece of board

to make a wedge for a fellow employee. We found the employee's activity

was an insubstantial deviation from his work as a carpenter, and thus, the

injury arising therefrom was compensable under the Workers' Compensation

Law.

Unlike Osteen, the employee in Cauley was trained as a carpenter, and

the injury occurred during an activity which was incidental to, his normal

employment. In fact, Cauley was in the process of fashioning a block of wood

pursuant to his job assignment when he took a moment to make from it a

wedge for his co-employee. We agree with Judge Huff's dissent that Cauley

is simply inapposite here.

Finally we find no basis on which to hold Osteen's injury occurred "by

accident arising out of and in the course of her employment."

The South Carolina Workers' Compensation Act requires that, to be

compensable, an injury by accident must be one "arising out of and in the

course of employment." S.C.Code Ann. § 42-1-160 (1985). The two parts of

following: (a) self-education, (b) inoculations and employment health tests, (c)

union activities, and (d) public service activities. Clearly, Osteen was not

engaged in any of these activities and, therefore, this subdivision is

inapplicable to the present case. Further, as noted by Professor Larson,

where the beneficiary of the activity is solely the claimant himself,

compensation will ordinarily be denied. Larson, § 27.31(b) at 5-416 (emphasis

supplied). Here, Osteen's actions in obtaining ice for her family picnic were

clearly beneficial solely to Osteen.

p.7

the phrase "arising out of and in the course of employment" are not

synonymous. Both parts must exist simultaneously before any court will

allow recovery. Hicks v. Piedmont Cold Storage Inc., S.C. 479 S.E.2d

831, 834 (Ct. App. 1996). "Arising out of" refers to the injury's origin and

cause, whereas "in the course of" refers to the injury's time, place, and

circumstances. Howell v. Pacific Columbia Mills, 291 S.C. 469, 472, 354

S.E.2d 384, 385 (1987). For an injury to "arise out of' employment, the

injury must be proximately caused by the employment. Douglas v. Spartan

Mills, 245 S.C. 265, 269, 140 S.E.2d 173, 175 (1965). The injury arises out

of employment when there is a causal connection between the conditions

under which the work is required to be performed and the resulting

injury. Id. (Emphasis supplied).5 Here, there is simply no causal connection

between Osteen's employment and her injury; her employment in no way

required her to be placing a chest full of ice, for use over the weekend, into

the trunk of her vehicle. Accordingly, under South Carolina law,6 we find her

("personal comfort") doctrine and those enumerated by Professor Larson (which

this Court adopted in Cauley) under which an injury may be compensable

notwithstanding it was outside the scope of an employee's regular duties.

However, as noted, no such circumstances are applicable here.

6 It is unnecessary to resort to North Carolina caselaw to resolve the

present case. In any event, however, the North Carolina case cited by the

dissent to hold Osteen's injury compensable is factually and legally

distinguishable. Watkins v. City of Wilmington, 225 S.E.2d 577 (N.C. 1976)

involved a fireman who, while on his lunch hour at the fire station,

attempted to fix a co-employee's automobile. Watkins was required to remain

on the fire station premises during his 24 hour shifts, and firemen were

permitted to perform minor repairs to their automobiles on the premises

which was, to "an appreciable extent," a benefit to the fire department in that

by keeping their automobiles in working order, firemen could use them to

report to duty when they were off duty in the event of an emergency. Unlike

the present case, the plaintiff in Watkins was benefitting both a co-employee

and his employer so as to fall within Larson's exceptions for "other acts

outside regular duties." Osteen, on the other hand, was engaged in an

activity which was not incidental to her employment, and which was not

beneficial to either her co-employees or her employer; on the contrary, Osteen

was obtaining ice strictly for her own personal use over the weekend.

p.8

injury is not compensable.7

The judgment below is

REVERSED.

FINNEY, C.J., and MOORE, A.J., concur. TOAL and BURNETT, JJ.

dissenting in a separate opinion.

school was benefited with "improved employer/employee relations." The mere

fact that the school permitted employees to obtain ice is simply insufficient

to supply the requisite causal connection. Even an activity which is

"encouraged" by an employer is insufficient to render an ensuing injury

compensable. See Beam v. State Workmen's Compensation Fund, 261 S.C.

327, 200 S.E.2d 83 (1973) (emphasis supplied) (employment connection may

be supplied by varying degrees of employer encouragement or direction.... It

is ... sufficient if attendance, although not compulsory, is definitely urged or

expected but not if it is merely encouraged). Here, the evidence reflects,

at best, the school acquiesced in employees obtaining ice for their personal

use.

p9.

TOAL, A.J.: I respectfully dissent from the majority's determination

that Osteen's injury is not compensable under the South Carolina Workers'

Compensation Law. I would hold that Osteen's injury was by accident

arising out of and in the course of her employment and therefore

compensable. Thus, I would affirm the Court of Appeals.

In my view, there are two basic problems with the majority's analysis.

First, I believe the majority, in effect, incorrectly characterizes the personal

comfort doctrine and certain other acts outside an employee's regular duties

as exceptions to the "arising out of" requirement in S.C. Code Ann. § 42-1-160

(1985). In other words, under the majority's analysis, if an injury is found

not to "arise out of" employment, it may still be compensable if it falls under

one of these exceptions. Second, by characterizing workers' compensation law

in this manner, the majority creates an overly restrictive standard for

determining whether an injury "arises out of and in the course of"

employment.

Pursuant to section 42-1-160, all injuries, to be compensable, must be

by accident arising out of and in the course of employment. The two parts

of the phrase "arising out of and in the course of" are not synonymous, but

both must exist simultaneously before any court will allow recovery. Branch

v. Pacific Mills, 205 S.C. 353, 32 S.E.2d 1 (1944). This is the starting point

for analyzing any workers' compensation claim. See Owings v. Anderson

County Sheriffs Dep't, 315 S.C. 297, 433 S.E.2d 869 (1993). We have

liberally construed this language and allowed compensation in a variety of

cases including on the job injuries suffered while the employee was engaged

in personal comfort activities, as well as other acts outside an employee's

regular duties.1d

1d For example, in McCoy v. Easley Cotton Mills, 218 S.C. 350, 62

S.E.2d 772 (1950), we utilized the personal comfort doctrine in concluding

that an employee's accident arose out of and in the course of his employment

even though the injury occurred when the employee walked outside to smoke

a cigarette. Additionally, in Howell v. Kash & Karry, 264 S.C. 298, 301) 214

S.E.2d 821, 822 (1975), we stated that "[a]n act outside an employee's regular

duties which is undertaken in good faith to advance the employer's interest,

whether or not the employee's own assigned work is thereby furthered, is

within the course of employment." The injury in Howell occurred while the

employee was chasing two boys who had stolen a customer's purse. It was

not part of the employee's regular duties to chase potential thieves. We

nevertheless held that the injury was by accident arising out of and in the

course of employment.

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Commentators, like Professor Larson, have categorized these

compensable personal activities in an attempt to provide practical guidance.

Such categories, however, are not exceptions to the "arising out of"

requirement in section 42-1-160. They are instead devices for determining

whether an injury does in fact "arise out of and in the course of"

employment. See, e.g., Mack v. Branch No. 12, Post Exchange, 207 S.C. 258,

264, 35 S.E.2d 838, 840 (1945)("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. ")(emphasis added). These categories also reflect the degree

of flexibility with which courts have interpreted this statutory language.

An injury "arises out of" employment when there is apparent to the

rational mind, upon consideration of all the circumstances, a causal

relationship between the conditions under which the work is to be performed

and the resulting injury. Owings, 315 S.C. 297, 433 S.E.2d 869. The

majority concludes there is no causal connection between Osteen's

employment and her injury because her employment in no way required her

to be placing a chest full of ice into the trunk of her vehicle. Under this

rigid formulation of "arising out of," only those activities specifically required

by the employment would be compensable. Such a standard is impractical

and effectively overrules those cases where we have allowed compensation,

even though the activity was not specifically required by the employment.

E.g., Howell v. Kash & Karry, 264 S.C. 298, 214 S.E.2d 821 (1975)(found

compensable where employee was injured while chasing two boys who had

stolen a customer's purse); Sexton v. Freeman Gas Co., 258 S.C. 15, 187

S.E.2d 128 (1972)(found compensable where employee was injured while

driving company truck to help put out brush fire); Portee v. South Carolina

State Hosp., 234 S.C. 50, 106 S.E.2d 670 (1959)(found compensable where

employee was injured while seeking medication for a sore throat).

The fact is there is no case in South Carolina that gives meaningful

guidance to resolving the question of compensation under the unique facts of

this case. Therefore, I would seek guidance from the North Carolina

Supreme Court. See McDowell v. Stilley Plywood Co., 210 S.C. 173, 181, 41

S.E.2d 872, 876 (1947)("Our Workmen's Compensation Act having been

fashioned to the North Carolina Workmen's Compensation Act, and

practically a copy thereof, the opinions of the Supreme Court of that State

p.11

construing such Act are entitled to great respect.").2d In construing the phrase

"arising out of and in the course of," the North Carolina Supreme Court has

set forth the following test:

The rule applicable when the employee has been directed, as part

of his duties, to remain in a particular place or locality until

directed otherwise or for a specified length of time, has been well

stated ... as follows: In those circumstances, the rule applied is

simply that the employee is not expected to wait immobile, but

may indulge in any reasonable activity at that place, and if he

does so the risk inherent in such activity is an incident of his

employment.

Watkins v. City of Wilmington, 225 S.E.2d 577, 581 (N.C. 1976).

In Watkins, a fireman injured himself while repairing a car during

working hours. In concluding the fireman's activity was reasonable, the court

found the following facts determinative: the fireman was required, as part of

his duties, to remain at the fire station during working hours; the attempted

repair to the car was minor; the practice of firemen repairing their

automobiles at work was well known to and permitted by the firemen's

superiors; and allowing the firemen to make repairs benefitted the fire

department in that by keeping their automobiles in working condition the

firemen could report to duty when they were off duty, in case of an

emergency. Id. at 583.

In this case, Osteen was expected, as part of her duties, to stay on

school premises the entire working day, including her lunch hour. The

practice of employees getting ice from the cafeteria for personal use was well

known to and permitted by her supervisor. Moreover, Osteen's excursion was

to follow the practice of relying upon the North Carolina Supreme Court for

guidance in construing our workers' compensation laws. See Nolan v. Daley,

222 S.C. 407, 73 S.E.2d 449 (1952); Flemon v. Dickert-Keowee, Inc., 259 S.C.

99, 190 S.E.2d 751 (1972); Carter v. Penney Tire & Recapping Co., 261 S.C.

341, 200 S.E.2d 64 (1973); Hines v. Hendricks Canning Co., 263 S.C. 399, 211

S.E.2d 220 (1975); Holley v. Owens Corning Fiberglas Corp., 301 S.C. 519,

392 S.E.2d 804 (Ct. App. 1990); Adams v. Texfi Indus., 320 S.C. 213, 464

S.E.2d 109 (1995); Stephen v. Avins Const. Co., 324 S.C. 334, 478 S.E.2d 74

(Ct. App. 1996); Harding v. Plumley, 329 S.C. 580, 496 S.E.2d 29 (Ct. App.

1998).

p.12

brief and near the end of her working day. Her supervisor testified that

Osteen's activity would not have interfered with her job. Finally, by

acquiescing in this conduct, the school was benefitted with improved

employer/employee relations. I would therefore find that Osteen's act of

obtaining cafeteria ice for personal use was a reasonable activity, and the

risk inherent in such activity was an incident of her employment. As such,

I would hold that Osteen's injury was by accident arising out of and in the

course of her employment and therefore compensable.

For the foregoing reasons, I respectfully dissent.

BURNETT, A.J., concurs.

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