Recent Developments from Around the States

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.