This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (1996).

STATE OF MINNESOTA

IN COURT OF APPEALS

C8-96-2187

B.E.M.,

Appellant,

vs.

Bridgeman's Restaurants, Inc.,

Respondent.

Filed April 8, 1997

Affirmed in Part, Reversed in Part, and Remanded

Davies, Judge

Hennepin County District Court

File No. 9519037

Lawrence M. Rocheford, David J. Hoekstra, Jardine, Logan & O'Brien, P.L.L.P., 2100 Piper Jaffray Plaza, 444 Cedar St., St. Paul, MN 55101 (for Appellant)

Nancy C. Coon, Coon and Barg, 6131 Blue Circle Dr., Eden Prairie, MN 55344 (for Respondent)

Considered and decided by Kalitowski, Presiding Judge, Davies, Judge, and Mulally, Judge.[*]

U N P U B L I S H E D O P I N I O N

DAVIES, Judge

B.E.M. appeals from an order of the district court granting summary judgment for respondents in this tort action. The district court concluded that B.E.M.'s injuries arose out of and in the course of her employment and that, therefore, the Workers' Compensation Act provides her exclusive remedy. We affirm in part, reverse in part, and remand for trial.

FACTS

Appellant B.E.M.'s evidence was that, on March 17, 1995, she was a waitress at respondent Bridgeman's Restaurants, Inc. (Bridgeman's). She began her end-of-shift clean-up duties that day at 11 p.m., finished her work, punched out on the time clock, changed into her street clothes, and returned to the main floor of the restaurant to wait for a co-worker. She intended to attend a St. Patrick's Day party with the co-worker after he finished his work.

Shortly after midnight, two men armed with guns entered the restaurant. While one of the gunmen accompanied the co-worker to attempt to open the restaurant's safe, the other raped B.E.M.

B.E.M. filed a complaint against Bridgeman's alleging negligence, negligent supervision, and negligent infliction of emotional distress arising from her rape on Bridgeman's property. Bridgeman's moved for summary judgment on the ground that the Minnesota's Workers' Compensation Act provides B.E.M.'s exclusive remedy. The district court granted Bridgeman's motion for summary judgment and this appeal followed.

D E C I S I O N

On appeals from summary judgments, this court must consider two questions:

(1) whether there are any genuine issues of material fact and (2) whether the lower courts erred in their application of the law.

State by Cooper v. French, 460 N.W.2d 2, 4 (Minn. 1990). We view the evidence in the light most favorable to the non-moving party. Fabio v. Bellomo, 504 N.W.2d 758, 761 (Minn. 1993).

I.

If an employee suffers a personal injury or death "arising out of and in the course of employment," the employer must compensate the employee "without regard to the question of negligence." Minn. Stat. § 176.021 (1996); see also Bear v. Honeywell, Inc., 468 N.W.2d 546, 546 (Minn. 1991) (certified question presupposed that plaintiff's injuries arose out of and in course of employment). In such a case, the Workers' Compensation Act provides the employee's exclusive remedy. Minn. Stat. § 176.031 (1996); McGowan v. Our Savior's Lutheran Church, 527 N.W.2d 830, 833 (Minn. 1995).

"[A] causal connection--not necessarily in the proximate cause sense--must exist between the injury and the employment" before the injury is treated as compensable under the Act. Gibberd by Gibberd v. Control Data Corp., 424 N.W.2d 776, 780 (Minn. 1988). The causal connection will exist where the injury arises

"as a natural incident of the work and [should] have been contemplated by a reasonable person * * * as a result of the exposure occasioned by the nature of the employment."

Hanson v. Robitshek-Schneider Co., 209 Minn. 596, 599, 297 N.W. 19, 21 (1941) (quoting Novack v. Montgomery Ward & Co., 158 Minn. 495, 498, 198 N.W. 290, 292 (1924)).

Injuries sustained on the employer's premises after work hours are compensable under the Act if the employee's continued presence on the premises benefits the employer. Blattner v. Loyal Order of Moose, 264 Minn. 79, 83-84, 117 N.W.2d 570, 573-74 (1962); see also Foley v. Honeywell, Inc., 488 N.W.2d 268, 272-73 (Minn. 1992) (evidence of benefit to employer compelled conclusion that employee's presence on employer's premises on Sunday afternoon was related to employment). The "decisive issue" is whether the employee's presence on the employer's property is for a personal purpose unrelated to employment or whether it is for the employer's benefit. Id. If a "personal mission" brings an employee to an employer's premises outside normal working hours, however, a tort recovery for injuries sustained at that time is not proscribed by the Act. Yeager v. Chapman, 233 Minn. 1, 6-7, 45 N.W.2d 776, 780 (1951).

B.E.M. argues that her assault was not incident to her employment because she was no longer on duty as a Bridgeman's employee when assaulted, that she only remained at the restaurant because she was waiting for her co-worker to finish work, and that her continued presence on her employer's premises after her shift ended did not benefit her employer. Substantial evidence in the record supports these assertions. Viewing the evidence in the light most favorable to B.E.M., a material fact issue exists as to whether her injuries arose out of and in the course of her employment. The district court erred in granting summary judgment for Bridgeman's.

II.

B.E.M. asserts she is also outside the Workers' Compensation Act because the Act excludes from coverage injuries

caused by the act of a third person or fellow employee intended to injure the employee because of personal reasons, and not directed against the employee as an employee, or because of the employment.

Minn. Stat. § 176.011, subd. 16 (1996); see also McGowan, 527 N.W.2d at 834 (Workers' Compensation Act does not cover assaults on an employee "motivated by personal animosity [and] arising from circumstances wholly unconnected with the employment" (citing Hanson, 209 Minn. at 600, 297 N.W. at 22)).

An employee who is sexually assaulted by "an unknown assailant, whose reasons and motives for the assault are not known," is generally limited to recovery under the Act because the injury was not inflicted for "personal reasons." Bear, 468 N.W.2d at 547; see also Foley, 488 N.W.2d at 273 (relying on Bear in stating that a "random sexual attack * * * is not intended to injure the employee for personal reasons"). With respect to injuries inflicted "for personal reasons," the supreme court has relied on a discussion provided by Professor Arthur Larson:

There is a marked distinction between the holdup in which the robber says to himself, "I am going to track down Henry Davis wherever he may be and steal the gold watch which I know he has," and the holdup in which the robber says, "I am going to rob whoever happens to be on duty as night watchman * * *.

Bear, 468 N.W.2d at 547 n.1 (quoting 1A Arthur Larson, The Law of Workmen's Compensation, § 11.11(b) (1990)).

The assault exception, thus, applies to situations in which some prior relationship exists between the assailant and the victim; it does not apply to instances of random choice of victim, like the present case. The district court properly ruled that the assault exception would not exclude appellant from coverage under the Workers' Compensation Act.

Affirmed in part, reversed in part, and remanded.

[ ]* Retired judge of the district court, serving as judge of the Minnesota Court of Appeals by appointment pursuant to Minn. Const. art. VI, § 10.