Shaw v. Dutton Berry Farm

SHAW_V_DUTTON_BERRY_FARM.92-267; 160 Vt. 594; 632 A.2d 18


 NOTICE:  This opinion is subject to motions for reargument under V.R.A.P.
 40 as well as formal revision before publication in the Vermont Reports.
 Readers are requested to notify the Reporter of Decisions, Vermont Supreme
 Court, 109 State Street, Montpelier, Vermont 05609-0801 of any errors in
 order that corrections may be made before this opinion goes to press.

                                 No. 92-267


 Bradley Shaw                                 Supreme Court

                                              On Appeal from
      v.                                      Commissioner,
                                              Labor & Industry

 Dutton Berry Farm                            February Term, 1993
 and Hartford Insurance Company


 Dana J. Cole-Levesque, Commissioner

 Emily J. Joselson and Kevin E. Brown of Langrock Sperry & Wool, Middlebury,
    for plaintiff-appellant

 John Davis Buckley and Fletcher B. Joslin of Theriault & Joslin, P.C.,
    Montpelier, for defendant-appellee


 PRESENT:  Allen, C.J., Gibson, Dooley, Morse and Johnson, JJ.


      MORSE, J.  In this Workers' Compensation appeal, we review the question
 of whether an employee's injury caused by the unprovoked stabbing by another
 employee in the "bunkhouse" after work is compensable as "arising out of"
 employment.  We decide that it is and reverse the Commissioner of Labor and
 Industry's determination to the contrary.
      Bradley Shaw, a migrant farm laborer from Jamaica, worked at Dutton
 Berry Farm in Newfane, Vermont, during the summer of 1990.  On July 16,
 after work, he was stabbed by a fellow worker, Dennis Smith.  The injury
 occurred at a workers' "bunkhouse" residence, where plaintiff and eight
 other workers lived.  Plaintiff shared a bedroom with Smith and another
 worker.  The stabbing followed harsh words exchanged between plaintiff and
 Smith over a pair of dirty socks left on Smith's bed.  Prior to the
 altercation, plaintiff and Smith had gotten along well and there were no
 previous incidents of hostility.
      The Commissioner concluded that plaintiff received "a personal injury
 by accident . . . in the course of his employment," but denied workers'
 compensation because in her view the injury was not "arising out of" his
 employment.  21 V.S.A. { 618.(FN1) Thus, the sole issue on appeal revolves
 around the meaning of "arising out of" Shaw's employment under the facts of
 this case.(FN2)
      We begin by repeating the observation of Lord Wrenbury in 1916, quoted
 by Chief Justice Hulburd in Kenney v. Rockingham School District, 123 Vt.
         344, 345, 190 A.2d 702, 703 (1963):
         "The few and seemingly simple words 'arising out of and
         in the course of the employment' have been the fruitful
         (or fruitless) source of a mass of decisions turning
         upon nice distinctions and supported by refinements so
         subtle as to leave the mind of the reader in a maze of
         confusion.  From their number counsel can, in most
         cases, cite what seems to be an authority for resolving
         in his favor, on whichever side he may be, the question
         in dispute."

 See Cardillo v. Liberty Mut. Ins. Co., 330 U.S. 469, 479 (1947) (statutory
 terms "arising out of and in the course of employment" are "deceptively
 simple and litigiously prolific").
      The Commissioner intimated that the "arising out of" test is but
 another description of the element of proximate cause, a venerable common-
 law concept in tort law, citing Rothfarb v. Camp Awanee, Inc., 116 Vt. 172,
 176, 71 A.2d 569, 572 (1950).  That case stated:
         [A]n injury arises out of an employment when it occurs
         in the course of it and as the proximate result of it.
         . . .  When an injury is a natural and necessary inci-
         dent or consequence of the employment, though not fore-
         seen or expected, it arises out of it.  A risk is
         incidental to the employment when it belongs to it, or
         is connected with what a workman has to do in fulfilling
         his contract service.
 (Emphasis added.)  Reference to the law of "proximate cause," however, has
 been soundly criticized as a confused analogy, and out of place in workers'
 compensation law, where fault is not an underlying element.  1 Larson,
 Workmen's Compensation Law { 6.60 (1990).
      Relying on Rothfarb, the Commissioner concluded that plaintiff's injury
 did not arise from his employment, stating,
             The stabbing of the claimant cannot be said to be a
           natural and necessary incident or consequence of employ-
           ment as an agricultural worker.  Neither the claimant
           nor his assailant was engaged in any activity which
           benefitted the employer even slightly or in any way
           fostered goodwill on the employer's behalf.  The fact
           that the employer provided the claimant with housing is
           not enough to make him liable for compensation.  In
           Rothfarb, the claimant was denied compensation for
           injuries received in a fight in an employer provided
           bunkhouse, because at the time of the fight he was not
           engaged in any activity benefitting the employer.

      The factual backdrop of Rothfarb is strikingly similar to the
 circumstances of this case.  In Rothfarb, two workers fought in the
 bunkhouse after work and the claimant broke his leg in the course of it.
 The Commissioner awarded workers' compensation benefits, and this Court
 reversed.  Rothfarb may be distinguished from this case only by the fact
 that there, the claimant provoked the fight and was injured as a result of
 mutual physical combat.  Here, Smith stabbed plaintiff unexpectedly after a
 verbal spat.
      We do not think Rothfarb is true to the remedial purpose of workers'
 compensation and overrule it.  The Court in Rothfarb, and the Commissioner
 in this case, gave too narrow a meaning to "arising out of employment."  See
 St. Paul Fire & Marine Ins. Co. v. Surdam, 156 Vt. 585, 590, 595 A.2d 264,
 266 (1991) (workers' compensation law to be construed liberally to effect
 its remedial purpose).  Focusing merely on what plaintiff was doing at the
 time of his injury is overly restrictive.  Since Rothfarb was decided, over
 forty years ago, we have taken a less myopic view of what falls within
 workers' compensation coverage.  See, e.g., Kenney, 123 Vt. at 349, 190 A.2d 
 at 705 ("An injury arises out of the employment if it arises out of the
 nature, conditions, obligations or incidents of the employment; in other
 words, out of the employment looked at in any of its aspects.").  Further,
 we need not cling to "a strictly static point of view," but should regard
 "the employee's employment through a wide-angle lens and not with the
 restricted focus used in earlier cases."  Id.
      Ordinarily, if an injury occurs during the "course of employment," it
 also "arises out of it," unless the circumstances are so attenuated from the
 condition of employment that the cause of the injury cannot reasonably be
 related to the employment.  Even if the worker's activity leading to the
 injury is not work per se, the causal connection is not necessarily broken.
 As there are no hard and fast rules to determine when an injury "aris[es]
 out of employment," the outcome of each case is determined only after
 taking all the facts and circumstances into account.
      The Commissioner's analysis confused the statutory element "course of
 employment" with "arising out of employment."  The Commissioner found that
         the employee was on duty at a place where the employee
         may reasonably be expected to be while fulfilling the
         duties of employment. . . .  He was living in housing
         provided by his employer as contemplated in the contract
         of hire.  The employer and the claimant mutually bene-
         fitted from this arrangement.

 The Commissioner then appeared to contradict the finding, stating, "Neither
 the claimant nor his assailant was engaged in any activity which benefitted
 the employer even slightly or in any way fostered goodwill on the employer's
 behalf."
      If the Commissioner's analysis about "activity" is carried to its
 logical consequences, the liberality we accord the Act would be undermined.
 Kenney, 123 Vt. at 347, 190 A.2d  at 704 (teacher injured in a fall while
 voluntarily taking extracurricular course at work situs entitled to
 compensation); see Rae v. Green Mt. Boys Camp, 122 Vt. 437, 440, 175 A.2d 800, 801-02 (1961) (plaintiff struck by horse's head while holding horse by
 reins allowed recovery because activity, though not part of job description,
 was for benefit of employer and was goodwill gesture).
      Plaintiff was placed in what a leading commentator calls "positional-
 risk."  A positional risk exists when the employee is subject to risk of
 injury at work in a "but for" sense.  "But for" the employment and plain-
 tiff's position at work, the injury would not have happened.  As explained
 by Professor Larson,
           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 [claimant] was injured.  It is even more
           common for the test to be approved and used in
           particular situations.  This theory supports
           compensation, for example, in cases of stray bullets,
           roving lunatics, and other situations in which the only
           connection of the employment with the injury is that its
           obligations placed the employee in the particular place
           at the particular time when [employee] was injured by
           some neutral force, meaning by "neutral" neither
           personal to the claimant nor distinctly associated with
           the employment.

 1 Larson, supra, { 6.50 (emphasis in original); see generally id. at {{
 11.16(c), 11.40, 12.  It is only those "purely personal" quarrels which
 result in injury that are not compensable.  Scheper v. Hair Repair, Ltd.,
 825 S.W.2d 1, 3 (Mo. Ct. App. 1991) (injury from automobile accident
 noncompensable after claimant's abduction by boyfriend from her workplace
 deemed "a repetition of prior assaults motivated by jealousy and rage").
      Having found that plaintiff's injury occurred during the course of
 employment, the unexpected, unprovoked knifing was within plaintiff's
 "positional risk" because he and his attacker would not have been in the
 bunkhouse at the time "but for" their employment.  We do not remand for the
 Commissioner to again review the issue of causation under the correct view
 of the law because under these facts the injury arose from employment as a
 matter of law.  See Martin v. J. Lichtman & Sons, 199 A.2d 241, 242-43
 (N.J. 1964) (injury compensable where "friction and strain" results from
 forced contact due to employment); Crotty v. Driver Harris Co., 139 A.2d 126, 133 (N.J. Super. Ct. App. Div. 1958) (assault by co-worker compensable
 unless motivated by "personal vengeance" developed outside of employment).
 The contrary finding was clearly erroneous.
      Reversed and compensation is awarded in the amount of $25,986.04, the
 award which would have been due had plaintiff prevailed, plus 12% interest
 from May 12, 1992, until date of payment.  Remanded for entry of appropriate
 attorneys' fees and expenses.  Award of attorney's fees on appeal is
 deferred until the Commissioner has made her award.


                                    FOR THE COURT:


                                    ____________________________
                                    Associate Justice




FN1.    Compensation for personal injury is allowed "[i]f a worker receives
 a personal injury by accident arising out of and in the course of his
 employment."  (Emphasis added.)

FN2.     If plaintiff had been injured "by the wilful act of a third person
 directed against an employee because of his employment," compensation here
 would have been due.  21 V.S.A. { 601(11)(A).  The parties did not seek a
 determination on this basis, and we make no judgment about its applicability
 in this case.  See Myott v. Vermont Plywood, Inc., 110 Vt. 131, 135-36, 2 A.2d 204, 206 (1938) (same provision in predecessor to { 601(11)(A) covers
 injury from risks reasonably anticipated by employer caused by a
 "trespasser" at workplace, an off-duty co-worker who "fooled" with on-duty
 worker).