By Traci Haynes, staff attorney, Gray

Last month, the Appeals Board heard oral arguments in a case where an auto repair shop manager was accidentally shot by another worker, who was trying to sell him a handgun.

In Timothy Burke v. Steve Towers Enterprises, the trial court granted summary judgment, concluding that the injury didn’t arise primarily out of employment. The judge wrote, “Being accidentally shot by a coworker is not a risk inherent to employment in a vehicle maintenance and repair shop. Nor would the presence of a handgun for sale by a coworker naturally or normally be expected.”

Burke appealed, and at oral argument, Jonathan Wardle, his attorney, said the case should be remanded because the trial judge erred when he didn’t list all the disputed facts, nor did the judge view the facts “in a light most favorable to the non-moving party.”

Wardle listed facts to the appellate judges that weren’t mentioned in the summary judgment order, including that Burke testified that he didn’t intend to buy the gun, and that he told the coworker to take the gun outside of the shop “in order to maintain a safe work environment.”

Wardle argued that Burke never asked the third party to bring the gun inside the shop and that Burke didn’t have any intent to buy the gun, even when he went out to the parking lot to see it. He emphasized Burke was wounded as a result of trying to maintain a safe work environment. 

Wardle said that the judge acknowledged this argument at the hearing but didn’t give it any consideration in its order. “The Court doesn’t even articulate in its order, anywhere, what those facts were. So how can we know, first, that it considered every single one that was there? And secondly, there’s no analysis as to why they weren’t material,” Wardle said. The result was that the judge “weighed the proof” instead of viewing facts in a light favorable to the nonmoving party, which is inappropriate at the summary judgment stage.

Wardle also argued that the court erred by determining that Burke’s injury didn’t primarily arise out of his employment.

“[H]e was shot when taking action to restore a safe work environment, by disabling a loaded gun when telling a subordinate employee to take the gun out of the shop. He was shot because he tried to correct the subordinate employee’s decision to create an unsafe work environment by bringing a gun into the workplace,” Wardle argued. He added that when Burke was later fired, he was told it was because he didn’t maintain a safe work environment.

Presiding Judge Timothy Conner said that the trial judge referenced case law saying, “This type of event has to be a risk inherent to the nature of the work.” Judge Conner asked, “How is this event inherent in the nature of their work as automobile repair people?”

Wardle responded that Burke didn’t just fix cars; he also managed the store and its employees, and he had a duty to keep the store safe for employees and customers. He pointed out that Burke was shot while the store was open to the public. Interacting with the public and other employees was the nature of his work. Because of this, Burke’s job duties included keeping a safe environment, which was what he was doing when the gun discharged.

Williams v. Preferred Development Corporation supports Burke’s position, Wardle asserted. In that case, one coworker accidentally shot another, while doing what they were supposed to be doing, where they were supposed to be. “It arose out a desire to protect the property,” he said, and the Tennessee Supreme Court found it work-related.

Blair Cannon, attorney for Towers, distinguished Williams. She pointed out that the workers in that case were “were sent out to a piece of property to secure the property.”

“In a situation like that, you can imagine that a gun could be on the premises and that a gun could be used when you are trying to secure the property. This is an auto repair shop,” Cannon said.

Cannon noted that Burke’s “safety” argument wasn’t really raised until the appeal. Moreover, Burke contended that workers at the shop frequently brought guns to work—yet he also asserted that he told the worker who brought the gun into the shop to take it outside for safety purposes. Those positions don’t “mesh,” Cannon argued.

Cannon said, “It isn’t enough to show that the injury may have arisen out of the employment but that it primarily arose out of the employment.”

Judge Conner asked if the “primarily” element was a factual matter that created a factual dispute and made summary judgment unsuitable. Cannon responded that the primarily element goes to the “totality of the circumstances of the facts that are before the court.” She pointed out that there were several undisputed facts in this case, and when considered, “it would be impossible to find that this injury primarily arose out of the employment.”

Cannon added to look at where the incident began: with the conversation about purchasing the gun. Then they went outside to look at the gun, but Burke didn’t see it because he had to return inside the shop to answer the phone. As he left to go back inside, he said he’d “love to see the gun.” Once it was brought into the store, Burke inspected the gun and walked in the lobby holding it.

Cannon stated that whether Burke’s job required him to maintain a safe work environment isn’t a “material” fact for summary judgment. In addition, the facts didn’t show that he was doing that. “If he was looking to maintain an environment without guns in it, why is he bringing up a conversation about looking at a gun and going out to a car to look at a gun—you know, starting this conversation about a gun? So, to a rational mind, it doesn’t make sense that that really is part of what he’s doing for the job, that that’s then ‘arising out of [employment].’”

On rebuttal Wardle concluded, “‘Did it arise out of employment?’ is a highly factual inquiry, and there’s factual disputes all over the place here. And that’s really all I heard out of Miss Cannon is that ‘Oh yeah, we dispute a lot of facts.’ That’s great. Let’s take it to trial.”

The Board will issue its decision within 45 days of the arguments, so expect a decision in early December at the latest.

Duffield, Virginia, in the Tri-Cities. Photo by the author.