THE STATE OF SOUTH CAROLINA
In The Supreme Court
Linda F. Osteen, Respondent,
Employer and Self-
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
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
WALLER, A.J.: We granted certiorari to review the Court of Appeals'
opinion in Osteen v. Greenville County School District, 323 S.C., 432, 475
S.E.2d 775 (Ct. App. 1996). We reverse.
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
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.
Did the Court of Appeals err in holding Osteen's injury was by
accident arising out of and in the course of her employment?
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.
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
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).
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
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.
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.
injury is not compensable.7
The judgment below is
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
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"
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
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.
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
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
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.
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.