Recent Developments from Around the States

Supreme Court of VA Finds Co-Employee's Assault Did Not Arise 'Out Of' Employee's Employment for Workers' Compensation Purposes.

The Supreme Court of Virginia has held that when an employee's assault on a co-worker is personal and not directed against her as an employee or because of her employment, the resulting injury does not arise “out of” employment so as to preclude a claim outside of the workers' compensation system. Butler v. Southern States Cooperative, Inc., 2005 WL 2898009 (S.C.Va. Nov. 4).

Among Plaintiff Michelle Butler's responsibilities at Southern States Cooperative (Southern State) Middleburg, VA, store, she was required to schedule and make deliveries of agricultural supplies. In August 2003, Butler was required to help Clarence Allen, another Southern States delivery person, make a delivery of feed to a customer. The company had hired Allen knowing that he had been convicted of felony rape and had a felony parole violation on his criminal record. Prior to their interaction during this incident, Allen had often made personal comments to Butler expressing his interest in dating her. During the delivery, Allen cornered Butler in the cab of the delivery truck and made repeated unwanted sexual advances toward her. As a result, Butler decided to file an action in state court against Southern States under the claims of negligent hiring and retention of Allen, respondiat superior for Allen's assault and battery, and intentional infliction of emotional distress. In response, Southern States, besides denying the allegations in Butler's claim, filed a special plea in bar “asserting that the exclusivity provision of the Virginia Workers' Compensation Act, Code ' 65.2-307, barred Butler's claims because her alleged injuries arose out of and in the course of her employment.” The court below sustained the special plea in bar and dismissed Butler's claim, finding it precluded by the workers' compensation system.

In reversing the trial court's judgment, the Supreme Court of Virginia found that because the Virginia Workers' Compensation Act applies only to injuries by accident “arising out of and in the course of” employment, this compensation scheme could not be determined the sole and exclusive remedy in this case. While acknowledging that Butler's assault occurred “in the course” of her employment with Southern States in that “she was in the process of making an authorized delivery of feed for her employer,” the court determined that her injuries did not arise “out of” such employment. An accident is only said to have arisen “out of” employment when “there is a causal connection between the employee's injury and the conditions under which the employer requires the work to be done.” Because Allen's assault on Butler was personal to her and not directed at her as an employee or because of her employment, it could not be said to have arisen “out of” Butler's employment with Southern States. Thus Butler was not precluded from suing Southern States outside of the workers' compensation scheme, and the Supreme Court of Virginia reversed the trial court's dismissal of the claim.

However, because evidence presented at trial “indicated the existence of an in-region reassignment policy, which explained the disparate treatment in this case” and divulged testimony indicating that “the Gary, Indiana position was the only position available within plaintiff's region, and therefore plaintiff's reassignment was consistent with this policy,” the Ohio Supreme Court found that the trial court did not abuse its discretion in conditionally granting a new trial on plaintiff's age discrimination claim.

Supreme Court of VA Finds Co-Employee's Assault Did Not Arise 'Out Of' Employee's Employment for Workers' Compensation Purposes.

The Supreme Court of Virginia has held that when an employee's assault on a co-worker is personal and not directed against her as an employee or because of her employment, the resulting injury does not arise “out of” employment so as to preclude a claim outside of the workers' compensation system. Butler v. Southern States Cooperative, Inc., 2005 WL 2898009 (S.C.Va. Nov. 4).

Among Plaintiff Michelle Butler's responsibilities at Southern States Cooperative (Southern State) Middleburg, VA, store, she was required to schedule and make deliveries of agricultural supplies. In August 2003, Butler was required to help Clarence Allen, another Southern States delivery person, make a delivery of feed to a customer. The company had hired Allen knowing that he had been convicted of felony rape and had a felony parole violation on his criminal record. Prior to their interaction during this incident, Allen had often made personal comments to Butler expressing his interest in dating her. During the delivery, Allen cornered Butler in the cab of the delivery truck and made repeated unwanted sexual advances toward her. As a result, Butler decided to file an action in state court against Southern States under the claims of negligent hiring and retention of Allen, respondiat superior for Allen's assault and battery, and intentional infliction of emotional distress. In response, Southern States, besides denying the allegations in Butler's claim, filed a special plea in bar “asserting that the exclusivity provision of the Virginia Workers' Compensation Act, Code ' 65.2-307, barred Butler's claims because her alleged injuries arose out of and in the course of her employment.” The court below sustained the special plea in bar and dismissed Butler's claim, finding it precluded by the workers' compensation system.

In reversing the trial court's judgment, the Supreme Court of Virginia found that because the Virginia Workers' Compensation Act applies only to injuries by accident “arising out of and in the course of” employment, this compensation scheme could not be determined the sole and exclusive remedy in this case. While acknowledging that Butler's assault occurred “in the course” of her employment with Southern States in that “she was in the process of making an authorized delivery of feed for her employer,” the court determined that her injuries did not arise “out of” such employment. An accident is only said to have arisen “out of” employment when “there is a causal connection between the employee's injury and the conditions under which the employer requires the work to be done.” Because Allen's assault on Butler was personal to her and not directed at her as an employee or because of her employment, it could not be said to have arisen “out of” Butler's employment with Southern States. Thus Butler was not precluded from suing Southern States outside of the workers' compensation scheme, and the Supreme Court of Virginia reversed the trial court's dismissal of the claim.

However, because evidence presented at trial “indicated the existence of an in-region reassignment policy, which explained the disparate treatment in this case” and divulged testimony indicating that “the Gary, Indiana position was the only position available within plaintiff's region, and therefore plaintiff's reassignment was consistent with this policy,” the Ohio Supreme Court found that the trial court did not abuse its discretion in conditionally granting a new trial on plaintiff's age discrimination claim.