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Marky v. Dee Rose Furniture Co.

Decided: May 17, 1990.

MARY ANN MARKY, PETITIONER-RESPONDENT,
v.
DEE ROSE FURNITURE COMPANY, RESPONDENT-APPELLANT



On appeal from the Department of Labor, Division of Workers' Compensation.

O'Brien, Havey and Stern. The opinion of the court was delivered by O'Brien, J.A.D.

O'brien

At issue in this workers' compensation case is whether petitioner's injuries "arose out of" her employment. The workers' compensation judge found they did and ruled in her favor. Respondent employer appeals. We reverse.

Petitioner was injured on March 19, 1987, while at her place of employment at Dee Rose Furniture (Dee Rose), when she was shot by a man with whom she had had a relationship. Petitioner had been employed by Dee Rose for approximately one year before the shooting. Before her employment with Dee Rose, petitioner began a social or romantic relationship with one Louis Rosa (Rosa). She had gone out with him for at least a year before attempting to break off her relationship with him in February 1986. However, she continued to see him until October 1986, which she described as the "final breakup."

Notwithstanding this breakup, Rosa continued to telephone petitioner and come to her home. She refused to speak to him on the telephone and called police when he came to her home. On March 14, 1987, five days before the shooting, Rosa came to petitioner's home. When she called the police, he hid in the crawl space of the house next door. He was charged with criminal trespass in a complaint filed by one of the officers on that day. When found, he was carrying a knife concealed as a key chain.

Petitioner was employed as an office clerk at Dee Rose and was friendly with a floor salesman, John Brinker (Brinker). Petitioner finished her work day at five o'clock each day and Brinker went on his dinner break at that time. On two consecutive Wednesdays before the shooting on Thursday, March 19, 1987, petitioner had gone to dinner with Brinker. When dinner was completed, she went home and Brinker returned to the store.

On March 19, 1987, petitioner had gone to a store a few blocks from Dee Rose to pick up submarine sandwiches for herself and a female friend. While she was in the store, Brinker came in to pick up an order. Although they walked out of the sub shop together, they got into their own cars and returned to Dee Rose separately.

At about 1:40 p.m. on March 19, 1987, Rosa stopped a police officer to ask for directions. He held a bayonet to the officer's neck and directed him to get into the trunk of a car. During this incident, Rosa obtained the police officer's service revolver and fled in the patrol car. He went to Dee Rose Furniture. Inside the store, he asked at the service desk to speak to John Brinker, saying, "John can I talk to you?" As Brinker walked around a partition wall in the showroom to speak to him, Rosa pulled out the officer's service revolver. As Brinker noticed the gun and sought to get away, Rosa shot Brinker in the middle of his back. When Brinker rolled over onto his back,

Rosa fired another shot into his left abdomen. Brinker died from these gunshot wounds.

Rosa then asked where the office was and proceeded to it, where he confronted petitioner and a coemployee. He fired two shots at petitioner. The second one struck her in the left arm and went into her left side. She alleges, "he screamed at me [saying], 'You won't go out with me, but you'll go out with John for lunch.'"*fn1 The co-worker heard Rosa tell petitioner that he had been taping telephone conversations of her and knew she had been cheating on him. Petitioner and the co-worker were then held as hostages. When police came to the store, they attempted to negotiate with Rosa. These negotiations continued for about an hour and fifteen minutes. Rosa then shot himself fatally in the chest. The co-worker was not injured.

Petitioner filed a claim petition for workers' compensation benefits for the injuries she received from the gunshot wound inflicted on March 19, 1987. Respondent's answer admitted employment, but denied that ...


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