Summary
holding that work conditions can invoke the positional risk doctrine without regard to whether an assault was purely personal
Summary of this case from Wallace v. Adult Family Care HomesOpinion
No. 48.
Argued January 7, 1970. —
Decided February 3, 1970.
APPEAL from a judgment of the circuit court for Dane county: NORRIS E. MALONEY, Circuit Judge. Affirmed.
For the appellants there was a brief and oral argument by Robert W. Connell of Milwaukee.
For the respondents Department of Industry, Labor Human Relations and State of Wisconsin the cause was argued by Donald P. Johns, assistant attorney general, with whom on the brief was Robert W. Warren, attorney general.
Action to review an award by the Department of Industry, Labor Human Relations (ILHR Department) of workmen's compensation death benefits and burial expenses.
On November 3, 1966, Diane Olkwitz, the deceased, was employed by Allied Manufacturing, Inc., as a receptionist and general office worker. The only other office personnel were the president and the secretary-treasurer of the corporation. All other employees, about 18 in number, worked in the adjoining factory portion of the building.
The deceased, who normally worked from 8 a. m. until 4:30 p. m., began work at her usual time on the morning of November 3d. Shortly after lunch the president left the office, and the plant employees departed at 3:30 p. m., their usual quitting time. Miss Olkwitz remained alone in the building.
Although the record is sparse concerning the events preceding the murder of the deceased, there was testimony that at about 2:30 p. m., the secretary-treasurer, who had not come to work that day, telephoned the deceased and was informed that she intended to work until 4:30 p. m. as usual. At approximately 4:40 p. m., Mrs. Diane Zimmer, a friend of the deceased, attempted to telephone her to ascertain if the deceased intended to pick her up from work as had previously been arranged. When the deceased failed to answer her phone, Mrs. Zimmer became concerned and decided to investigate.
She arrived at the Allied Manufacturing Company at approximately 5 p. m. and discovered that the deceased's car was in the parking lot and that the doors to the building were locked.
At about this time, Mr. Chris Kuntz, a foreman for Allied, arrived at the plant. When Mr. Kuntz unlocked the side door to the plant, he found the deceased's body inside the plant. The deceased's coat and purse were still at her office desk which was about 178 feet from where her body was found. A later examination of the body revealed that she had been stabbed a total of 98 times but had not been sexually molested.
While there was no evidence of a forcible entry into the building, there were signs of a struggle in the vicinity of the body. To the present day the assailant has not been found and no motive for the slaying has been established.
Upon these facts ILHR Department determined that at the time of her death, the deceased was performing services growing out of and incidental to her employment and that her injury and death were caused by an accident (assault) arising out of her employment. Allied Manufacturing, Inc., and its insurer, the Security Insurance Company of Hartford now appeal from the judgment of the Dane County Circuit Court which affirmed the department's order.
The sole issue on this appeal is: Did the evidence establish that the accident (assault) which caused deceased's injuries arise out of her employment? This court has previously stated that in order to establish liability of an employer under the Workmen's Compensation Act, the employee must establish that he was not only performing services growing out of and incidental to his employment, but also that the accident causing his injury arose out of his employment. Sec. 102.03(1) (c) and (e), Stats. Cutler-Hammer, Inc. Industrial Comm. (1958), 5 Wis.2d 247, 92 N.W.2d 824. These prerequisites to recovery are independent and must be proven separately. Nash-Kelvinator Corp. Industrial Comm. (1954), 266 Wis. 81, 62 N.W.2d 567. There is no question here that the deceased at the time of the accident (assault) was performing services growing out of and incidental to her employment.
The respondents' brief, relying on the presumption of continuity of service, devotes considerable argument to the proposition that the deceased had not deviated from her employment and was thus performing services incidental to her employment. Since the appellants' brief deals only with the second prerequisite to recover, these portions of the respondents' brief are not germane to the issue before this court. Respondents' reference to deviation and the presumption of continuity of service serve only to confuse the two prerequisites.
While there are four basic interpretations of the term "arises out of his employment," this court has specifically adopted the "positional risk" doctrine. Cutler-Hammer v. Industrial Comm., supra. Under this doctrine, at page 253:
". . . [A]n accident arises out of the employment when the connection between the employment and the accident is such that the obligation or circumstances of the employment places the employee in the particular place at the particular time when he is injured by a force which is not solely personal to him." (Emphasis supplied.)
It is the appellants' position on this appeal that since the assailant's motive is undetermined it is impossible to establish that the assault was not "solely personal to the deceased." They thus reason that the "positional risk" doctrine is inapplicable and that the evidence will not establish that the accident "arose" out of the deceased's employment unless this court adopts the presumption that unexplained deaths occurring on an employer's premises arise out of employment.
While the respondents, citing 1 Larson, Law of Workmen's Compensation, pp. 108-123, sec. 10.32, urge the adoption of such presumption, the appellants indicate that such presumption has been rejected by previous decisions of this court. See: Rick v. Industrial Comm. (1954), 266 Wis. 460, 63 N.W.2d 712; Nielsen v. Industrial Comm. (1961), 14 Wis.2d 112, 109 N.W.2d 483; and Kraynick v. Industrial Comm. (1967), 34 Wis.2d 107, 148 N.W.2d 668.
Rick v. Industrial Commission, supra, indicated at pages 464 and 465 that:
". . . This court has never held, nor does the statute provide, that when an employee is found dead under circumstances indicating that death took place within the time and space limits of the employment, in the absence of any evidence of what caused the death, a presumption that the death arose out of the employment is created. . . ."
In Rick, Nielsen and Kraynick, unlike the instant case, the applicants were forced to urge the adoption of a presumption because the court, being unable to find a zone of special danger, was unable to employ the "positional risk" doctrine. In Nielsen, this court distinguished between the "positional risk" doctrine and a presumption.
We hold that in the instant case the isolated work environment in which the deceased worked constituted a zone of special danger and that the "positional risk" doctrine is applicable.
The appellants' contention that the assailant's motive is determinative of the doctrine's applicability is directly refuted by Nash-Kelvinator Corp. v. Industrial Comm., supra. There an employee was assaulted by fellow workers while he was performing his usual duties of employment. Since it was undisputed that the employee was assaulted for having signed a peace petition which his fellow workers considered Communist-inspired, the employer argued "that the assault was motivated by a personal act of the employee performed outside of his employment and unconnected with his work, that the assault therefore was purely personal and self-invited, and that it did not arise out of the employment."
Nash-Kelvinator Corp. v. Industrial Comm., supra, at page 85.
This court declined to accept this argument by stating:
". . . We are not concerned with the fomenting cause. Where the work environment is one of the causative factors of the assault, it is immaterial whether the motive is or is not work connected. . . ." (Emphasis supplied.)
This holding was in conformity with 1 Larson, Law of Workmen's Compensation, pp. 135-137, sec. 11.11(b), which indicates that an attack can be linked to employment either through the subject matter of the dispute (assailant's motive) or through a work environment which increases the risk of attack.
In the instant case, the loneliness of the environment in which the deceased was placed following the departure of other employees increased the risk of attack and constituted one of its causative factors. Contrary to the position of the appellants, factors outside the building such as the existence of other buildings in the area and heavy vehicular traffic on nearby roads are not determinative of loneliness.
Applying the "positional risk" doctrine, the deceased was present at a place where she was injured through the conditions of a location constituting a zone of special danger.
By the Court. — Judgment affirmed.