COMPARISON OF POSITIONAL RISK WITH OTHER THEORIES OF RISK
This paper will discuss the definition of positional risk, the status of positional risk theory in North Carolina workers’ compensation jurisprudence, and specific cases involving the various manifestations of risk found in North Carolina workers’ compensation law.
I. Definition of Positional Risk
Professor Larson defines the positional risk doctrine as follows: “An injury arises out of the employment if it would not have occurred but for the fact that the conditions and obligations of the employment placed claimant in the position where he was injured.” 1-3 Larson’s Workers’ Compensation Law, Section 3.05. Professor Larson states that it is more common for the test to be approved and used in particular situations, such as cases involving stray bullets, roving lunatics, and other situations in which the only connection to the employment is that the obligations of employment placed the employee in a particular place at a particular time when he was injured by a “neutral” force. A neutral force means a force that is not personal to the claimant and is not distinctly associated with the employment. Professor Larson also points out that a court will sometimes adopt a positional risk theory without actually using the term. As an example, Professor Larson points to a Pennsylvania case that awarded compensation benefits to an employee who lost the sight in his eye as result of the a retina. His retina tore because of his attempt to suppress a sneeze during a business meeting. Id.
II. Status of Positional Risk Theory in North Carolina Jurisprudence
The North Carolina Courts have not explicitly adopted the positional risk doctrine. It appears that the closest our appellate courts have come to addressing the positional risk theory of liability is the bee-sting case, Mintor v. Osborne Company, 127 N.C. App. 134, 487 S.E.2d 835 (1997).
In Mintor, the claimant was stung by an insect while working on a roof at a jobsite. He was allergic to bee stings and was treated for an allergic reaction. The Industrial Commission awarded benefits but the Court of Appeals reversed the award, applying the “increased risk” test. There was lay testimony in the case that fresh wood, such as the lumber used at the jobsite, tends to attract yellow jackets and other stinging insects, but the claimant offered no expert testimony on this point. The Court of Appeals felt that it needed scientific evidence from an expert in order to conclude that the claimant was at an increased risk of being stung due to his work at the construction site. It does not appear that the Court closed the door for adopting positional risk, but merely stated that under the facts of the case scientific expert evidence would be required to show the increased risk. Of course, increased risk is not the same thing as positional risk.
III. North Carolina Uses Various Risks Tests To Determine Workers’ Compensation Liability
The definition of injury in the Workers’ Compensation Act defines a compensable “injury by accident” as an “injury by accident arising out of and in the course of the employment, and shall not include a disease in any form, except where it results naturally and unavoidably from the accident.” N.C.G.S. § 97-2(6).
The crucial risk related concept to this definition is whether the accident arose out of and in the course of the employment. The cases defining and discussing risk have typically arisen in the context of discussing those aspects of the definition of compensable injury.
An injury by accident has been defined by case law as (1) an unlooked for and untoward event which is not expected or designed by the injured employee; or (2) a result produced by a fortuitous cause. Harding v. Thomas and Howard Company, 256 N.C. 427, 124 S.E.2d 109 (1962). An injury that is a natural and probable result of the employment is not compensable. Smith v. Cabarrus Creamery Company, 217 N.C. 468, 8 S.E.2d 231 (1940).
An on-the-job injury is compensable if it springs from the employment or has its origin in the employment. Perry v. American Bakeries Company, 262 N.C. 272, 136 S.E.2d 643 (1964). Furthermore, an appellate court is justified in upholding a compensation award of the Commission if the accident is fairly traceable to the employment as a contributing cause or if any reasonable relationship to the employment exists. Hoffman v. Ryder Truck Lines, 306 N.C. 502, 293 S.E.2d 807 (1982). An accident must have had its origin in a risk connected with the employment. The accident need not have been foreseen or expected, but after the event it must appear to have had its origin in a risk connected with the employment.
In the context of a professional football player, an injury while playing football may not be an unusual occurrence but the injury is not a probable, intended consequence of the employment and therefore constitutes an unlooked for and untoward event that was not expected or designed. For that reason, an injury to a professional football player during the course of playing football does arise out of and in the course of his employment, depending on the particular facts of the injury. Renfro v. Richardson Sports, LTD, Partners, 172 N.C. App. 176, 616 S.E.2d 317 (2005), cert. denied, 360 N.C. 535 (2006). Injuries resulting from a criminal assault are caused by an “accident” when, from the employee’s perspective, the assault was unexpected and without design on her part. Hauser v. Advanced Plastiform, Inc., 133 N.C. App. 378, 514 S.E.2d 545 (1999).
An extra or unusual degree of exertion by an employee while performing a job may constitute the unforeseen or unusual event or condition required to make the resulting injury a compensable injury by accident. Jackson v. Fayetteville Area System of Transportation, 88 N.C. App. 123, 362 S.E.2d 569 (1997) [But see, Stanfield v. Metal Beverage Container/Ball Corporation, COA 08-513, filed January 6, 2009].
An accident arises out of and in the course of the employment when it occurs while the employee is engaged in an activity or duty which he is authorized to undertake and which is calculated to further, either directly or indirectly, the employers’ business. Perry, supra. The words “out of” refer to the origin or cause of the accident. The words “in the course of” refer to the time, place and circumstances under which the accident occurred. Ridout v. Roses Stores, 205 N.C. 423, 171 S.E.2d 642 (1933).
The Supreme Court has held that the two tests, “course of employment” and “arising out of employment” should not be applied entirely independently as they are both parts of a single test of work connection. Deficiencies in one factor can therefore be made up by the strength in the other factor. Lee v. Henderson & Associates, 284 N.C. 126, 200 S.E.2d 32 (1973). This is because the terms of the Workers’ Compensation Act should be liberally construed in favor of compensation. Hoyle v. Isenhower Brick & Tile Co., 306 N.C. 248, 293 S.E.2d 196 (1982).
An accident arises “out of and in the course of the employment” when it occurs while the employee is engaged in an activity or duty that he is authorized to undertake and that is calculated to further, either directly or indirectly, the employer’s business. Perry v. American Bakeries Co., 262 N.C. 272, 136 S.E.2d 643 (1964). Both tests must be satisfied in order to bring an injury within the scope of the Workers’ Compensation Act. Robbins v. Nicholson, 281 N.C. 234, 188 S.E.2d 350 (1972).
Whether an injury by accident arises out of and in the course of the employment is a mixed question of law and fact. On appeal, the review is limited to the question of whether the findings and conclusions are supported by competent evidence. Hoyle v. Isenhower Brick & Tile Co., 306 N.C. 248, 293 S.E.2d 196 (1982).
An accident “arises out of” the employment when it occurs in the course of the employment and is the result of a risk involved in the employment or incident to the employment, or to the conditions under which the employment is required to be performed. There must be some causal connection between the employment and the injury. Bolling v. Belkwhite Co., 228 N.C. 749, 46 S.E.2d 838 (1948). See also, Perry, supra. An injury also “arises out of” the employment when it is a natural and probable consequence or incident of the employment and a natural result of one of its risks such that there is some causal relationship between the injury and performance of some service of the employment. Clark v. Burton Lines, Inc., 272 N.C. 433, 158 S.E.2d 569 (1968). If any reasonable relationship to the employment exists, or the employment is a contributory cause, then the injury by accident arises out of the employment. Kiger v. Bahnson Service Co., 260 N.C. 760, 133 S.E.2d 702 (1963). An injury must come from a risk which might have been contemplated by a reasonable person familiar with the whole situation as incidental to the service, when he entered employment. Bartlett v. Duke University, 284 N.C. 230, 200 S.E.2d 193 (1973). However, the employment need not be the sole causative force in order for the injury to be compensable. Walson v. Burlington Industries, 49 N.C. App. 301, 271 S.E.2d 516 (1980), rev’d on other grounds, 304 N.C. 670, 285 S.E.2d 822 (1982).
For an accident to “arise out of” the employment, it is necessary that the conditions or obligations of the employment put the employee in the position or at the place where the accident occurs. Pittman v. Twin City Laundry & Cleaners, 61 N.C. App. 468, 300 S.E.2d 899 (1983). (This sounds a lot like “positional risk,” doesn’t it?). When the conditions and obligations of the employment require the claimant at a particular place where the accident occurs, subjecting him to additional risks incident thereto, the injury arises out of the employment. Powers v. Lady’s Funeral Home, 306 N.C. 728, 295 S.E.2d 473 (1982). However, the risks or hazards incident to the employment must not be a hazard common to the public. The causative danger must be peculiar to the work and not common to the neighborhood. It must be incidental to the character of the business and not independent of the relationship of the master and servant. Bryan v. Loving Co., 222 N.C. 724, 24 S.E.2d 751 (1943).
An injury must occur “in the course of employment, to be compensable.” With respect to time, the course of employment begins at a reasonable time before work begins and continues for a reasonable time after the work ends. Pittman, supra. With respect to place, the course of employment includes the premises of the employer, including but not limited to portions of the premises as a parking lot controlled by the employer. Deseth v. LensCrafters, Inc., 160 N.C. App. 180, 585 S.E.2d 264 (2003).
IV. Specific Risks
If an injured employee, by reason of his employment, is particularly or specially exposed to a risk of injury from lightning, that is, a risk greater than that to other persons in the community, then injury resulting from lightning strike should generally be compensable as an injury by accident arising out of and in the course of the employment. Pope v. Goodson, 249 N.C. 690, 107 S.E.2d 524 (1959).
A risk is incidental to the employment when it is either an ordinary risk directly connected with the employment, or an extraordinary risk which is only indirectly connected with the service owing to the special nature of the employment. Goodwin v. Bright, 202 N.C. 481, 163 S.E2d. 576 (1932). When the employment requires the employee to be in a place at which he is exposed to a risk of injury to which he would not otherwise be subject, and he is injured by accident due to that peculiar hazard of that location, the causal relationship exists. Stubblefield v. Watson Electrical Construction Co., 277 N.C. 444, 177 S.E.2d 882 (1970. See also, Hensley v. Caswell Action Committee, 35 N.C. App. 544, 241 S.E.2d 852 (1978), rev’d on other grounds, 296 N.C. 527, 251 S.E.2d 399 (1979). Again, this sounds a lot like “positional risk.”
When an employee is subject to an increased risk of assault because of fewer people present along her route between one part of the employer’s premises and another, an injury received when she was assaulted can be compensable. D’Aquisto v. Mission St. Joseph’s Health Sys., 171 N.C. App. 216, 614 S.E.2d 583 (2005), rev’d on other grounds, 360 N.C. 567 (2006). Where the employment subjects a worker to a particular hazard from the elements such as excessive heat or cold, injuries resulting from these extreme conditions can be compensable. The test is whether the employment subjects the worker to a greater risk than that to which he or she would otherwise be exposed. Dillingham v. Yeargin Construction Co., 320 N.C. 499, 358 S.E.2d 380, cert. denied, 320 N.C. 639 (1987). An employee who was returning home from a business trip who was struck by a car and killed as he assisted an injured pedestrian, was not injured in the course and scope of his employment. His activity in stopping to assist the injured pedestrian, who had no connection to the employer’s business, was not an act that arose out of his employment. Roberts v. Burlington Industries, Inc., 321 N.C. 350, 364 S.E.2d 417 (1988).However, when another employee who was injured on her way to a company gathering when she was instructed by the company president to run errands for her supervisor, was injured during the course and scope of her employment under the special errand rule and the dual purpose rule. McBride v. Peony Corp., 84 N.C. App. 221, 352 S.E.2d 236 (1987). A truck driver shot by a security guard while he was trying to stop a robber did not suffer injuries arising out of and in the course of his employment as a truck driver. Roman v. Southland Transp. Co., 350 N.C. 549, 515 S.E.2d 214 (1999). Volunteering to help someone else with his job, when the other person is not associated with one’s own employer, typically does not arise out of the course of and in the scope of one’s own employment. Short v. Slane Hosiery Mills, 4 N.C. App. 290, 166 S.E.2d 479 (1969). Working on something of a personal nature while on the employer’s premises and using the employer’s equipment may or may not arise out of and in the course of employment. When a plaintiff had previously obtained permission to work on a doghouse in the woodshop during working hours when he had nothing else to do, and was allowed to use the employer’s scrap material to build the doghouse, his injury occurred in a compensable fashion. Lee v. Henderson, 17 N.C. App. 475, 195 S.E.2d 48, aff’d, 284 N.C. 126, 200 S.E.2d 32 (1973). However, when a security guard snagged his pants leg on his car bumper and was injured, while washing his car at work, his injury was deemed not to occur in a compensable fashion. Bell v. Dewey Brothers, Inc., 236 N.C. 280, 72 S.E.2d 680 (1952). When a pilot who owned his own airplane which he maintained and kept for both personal use and for business travel, was injured while maintaining the plane, he was not doing anything to promote his employer’s business at that moment and therefore was not injured in the course and scope of his employment. Pollock v. Reaves Brothers, 70 N.C. App. 199, 319 S.E.2d 286 (1984), rev’d on other grounds, 313 N.C. 287, 328 S.E.2d 282 (1985).
The North Carolina courts, although they have flirted with a positional risk theory in some cases, have generally stayed close to the idea that a compensable case must arise out of a risk that is inherent to the duties and obligations of the job.
In a couple of instances that court has come quite close to adopting a positional risk theory of liability. For instance, when an employee police officer was run over by a drunk driver, after the driver hit the officer’s car, it was inferred that the driver acted as she did due to the fact that the employee was a police officer. The decision to award the police officer workers’ compensation benefits was affirmed by the Court of Appeals. Rose v. City of Rocky Mount, 180 N.C. App. 392, 637 S.E.2d 251 (2006). In a 1983 case, the Court of Appeals held that in order for an accident to “arise out of” the employment, it was necessary that the conditions or obligations of the employment put the employee in the position or at the place where the accident occurred. Pittman v. Twin City Laundry & Cleaners, 61 N.C. App. 468, 300 S.E.2d 899 (1983). A similar theory of liability was discussed in another case, although the position of the employee subjected him to additional risk incident to the employment. Powers v. Lady’s Funeral Home, 306 N.C. 728, 295 S.E.2d 473 (1982).
However, on numerous occasions the courts reiterated the principle that an accident cannot arise out of the employment when it arises from a hazard that is common to the public. See, e.g., Martin v. Bonclarken Assembly, 35 N.C. App. 489, 241 S.E.2d 848, rev’d on other grounds, 293 N.C. 540, 251 S.E.2d 403 (1979). On occasion, even an injury on the employer’s premises has not been covered. See, e.g., Strickland v. King, 293 N.C. 731, 239 S.E.2d 243 (1977). This typically happens when the employee has left the scope of his employment and is injured when he outside the scope.
Sometimes the Court has stretched to find an accident compensable even when the connection to the employment is tenuous. For instance, a cocktail waitress was kidnapped and sexually assaulted by a guest at the resort where she worked, even though this attack occurred after her work day had ended, when she stopped on a resort road to assist the guest. She assumed the guest had car trouble. The court held that her act of stopping to assist someone that she knew to be a guest of the employer resort brought her within the course and scope of her employment. Culpepper v. Fairfield Sapphire Valley, 93 N.C. App. 242, 277 S.E.2d 777, aff’d, 325 N.C. 702, 386 S.E.2d 174 (1989). In addition, if an employee is doing something that he has specifically not been told to do, and he is injured, even though the task he is performing arguably benefits the employer, the courts have held that his injury is not compensable. Parker v. Burlington Ind., 78 N.C. App. 517, 337 S.E.2d 589 (1985). In Parker, it was not part of the plaintiff’s job to clean a tote tank. The cleaning of the tank was not necessary and did not really further the business of the employer. The plaintiff was overcome by fumes while cleaning the tank, but the Commission “correctly concluded” that the plaintiff was “not about his work” when the injury occurred, and his injury was not compensable.
There have been numerous cases allowing workers who were injured on a recreational or social activity to be compensated. The courts have typically held that, when the employer at his own expense, as a matter of good will, provides an occasion for recreation or a social outing for his employees and invites them to participate, but does not require them to do so, the injuries do not arise out of the employment and therefore are not compensable. Perry v. American Bakeries, supra. However, if the employer actually sponsors the event, either requires or strongly encourages attendance, finances the event, and benefits from the event, then the injury that occurs is compensable. Martin v. Mars Mfg. Co., 58 N.C. App. 577, 293 S.E.2d 816, cert. denied, 306 N.C. 742, 295 S.E.2d 759 (1982).
VI. Positional Risk
Under exactly what circumstances would a case become compensable in North Carolina with a positional risk theory, when it is not otherwise compensable under existing case law? Professor Larson talks about things such as “roving lunatics” and “stray bullets.” Under certain North Carolina cases, it appears that if the employee is in a particular location doing the work of his employer, and if he were to be struck by a stray bullet while in that location, he might in fact be covered under the Workers’ Compensation Act. If any employee is accosted by a roving lunatic who proceeds to assault him and cause an injury, it is possible that injured worker could be compensated under the line of assault cases that already exists. As a general rule, when an employee is assaulted, the question is whether the assault was personal in nature or rather it arose out of the work assigned to the perpetrator and the victim. In the case of a roving lunatic, it seems that neither test would apply, as the lunatic is unlikely to have a personal motive in assaulting any particular worker. In addition, because the roving lunatic does not work for the same employer, it is unlikely that the attack would arise out of the employment. However, the randomness of an attack by a roving lunatic who enters into the employer’s premises and does harm to an employee would seem to suggest a finding that the employee was at a greater risk for injury, simply because the lunatic randomly selected the employer’s premises for his attack.
Professor Larson’s “stray bullet” example may not be compensable under existing North Carolina case law. When an employee was shot in the eye by a hunter while he was working on his employer’s truck, the court held that the injury did not arise from a risk peculiar to the employment in which the worker was engaged. Whitley v. North Carolina State Highway Commission, 201 N.C. 539, 160 S.E.2d 827 (1931), Bain v. Travora Manufacturing Company, 203 N.C. 466, 166 S.E.2d 301 (1932). Interestingly enough, when a game warden was killed by a person against whom he had testified in a criminal action for violation of the game law, the court determined that this injury did not arise out of and in the course of the employment. Hollowell v. North Carolina Department of Conservation, 206 N.C. 206, 173 S.E.2d 603 (1934).
A fairly recent case known to most of us involved the truck driver who tried to assist a third party who was being robbed. The truck driver was shot and his case was found not to be compensable because the act of assisting the robbery victim was not considered to be within the course and scope of his employment. In another case involving Burlington Industries, a Burlington employee stopped to help an injured pedestrian and in turn was struck by a car and killed. Again, the act of stopping to help a pedestrian took him outside the course and scope of his employment and his death was not compensable. These types of cases arguably would become compensable using a positional risk analysis, because in both instances, the plaintiffs were on business trips for the benefit of their employers when they came upon the robber and the injured pedestrian.
An assault is an intentional act but it may be an accident within the meaning of the Workers’ Compensation Act when it is unexpected and without design on the part of the employee who suffers from it. Robbins v. Nicholson, 281 N.C. 234, 188 S.E.2d 350 (1972). However, the Supreme Court has held that the danger which causes the assault must be peculiar to the work and not common to the neighborhood. It must be incidental to the character of the business and not independent of the relation of master and servant. When an assault upon an employee arises out of a mode that is foreign to the employment relationship, the necessary connection between the injury and the employment is not present and the injury is not compensable. Gallimore v. Marilyn’s Shoes, 292 N.C. 399, 233 S.E.2d 529 (1977). If the reason for the assault is personal, it is not compensable. Robbins, supra.
Assume Joe worked at Acme Lumber Yard and that Bill drove a tractor-trailer for Hal’s Lumber. Bill was dispatched to deliver a load of lumber to Acme, arriving at 6:00 a.m. on a Saturday morning during deer hunting season. Acme Lumber is located next to a wooded area that is popular with deer hunters. Upon arrival, Bill got out of the truck and was walking around the perimeter of Acme’s yard, discussing with Joe where the lumber was to be unloaded. A hunter 1500 yards away fired two rounds at a buck, but missed. The first round hit Joe in the shoulder and the second round hit Bill on the leg. Is either injury compensable?
Although the North Carolina Courts have not explicitly adopted the positional risk theory of liability, several cases have hinted at the concept. For now, however, one should stick to the existing “increased risk” type of analysis. If an injury arose out of the course and scope of employment, due to a risk that is inherent in the work assigned, then the case should be compensable.
Written by: Bobby L. Bollinger Jr.