Mayo v. Safeway Stores, Inc. ( 1969 )

SHEPARD, Justice

(concurring).

I concur in the ultimate disposition of this case as announced by the. majority opinion; that the award of death benefits by the Industrial Accident Board should be affirmed and that the denial of the petition for additional attorney’s fees should be reversed and remanded. I disagree, however, with the reasoning and language used by the majority opinion in arriving at their conclusion. I feel that the language of the majority opinion will tend to obscure and becloud an area of workmen’s compensation law which, although it is minor in the number of cases arising therein, is nevertheless extremely important.

As pointed out in the majority opinion, the decedent husband of claimant was found dead on the premises where he was employed as the result of a completely unexplained and evidently unexplainable assault. The Industrial Accident Board found that the assault was committed by a co-employee who almost immediately thereafter committed suicide. The record discloses no animosity or bad feeling existing between the two employees prior to the accident and no evidence which discloses any reason whatsoever for the assault and killing.

The opinion of the majority purports to place Idaho firmly within the “growing minority of states” in adopting the “positional risk rule.” With such pronouncement I have no quarrel, but believe that the explanation of the “positional risk rule” is couched in unfortunate terminology. I do not agree that “when injury results from a neutral cause, the rebuttable presumption arises that the injury arose out of the employment.”

It is pointed out in 1 Larson, Workmen's Compensation Law, § 7, p. 48, that all risks bringing about injury fall within three categories: (1) risks distinctly associated with the employment (which are universally compensable); (2) risks personal to the claimant (which are almost universally non-compensable); and (3) neutral risks, that is, having no particular employment or personal character.

The ultimate question to be answered is, and always has been, whether the cause of the accident is associated with employment as a risk flowing from the employment. As stated by Larson, this is best illustrated by “all the things that can go wrong around a modern factory, mill, mine, transportation system, or construction project * * * which constitute the bulk of what not only the public but perhaps also the original draftsmen of compensation acts had in their mind as their proper concern. Such type of accident falls readily within the increased risk test and are considered work connected in all jurisdictions.”

Illustrative of the second type of risk are the cáses cited in the majority opinion, Duerock v. Acarregui, 87 Idaho 24, 390 P. 2d 55 (1964), and Devlin v. Ennis, 77 Idaho 342, 292 P.2d 469 (1956). Both cases involved death or injury of employees by reason of assaults. In the Devlin case the court said:

“Here, the shooting of Devlin by his employer because of animosity was foreign to the employment, and Devlin’s death therefore did not arise out of his employment by Searles, who was evidently determined to have his vengeance wherever he might find' his victim.” (A dispute over a woman between the two workmen) : •

The Duerock case involved the injury of an employee by her husband. The court in that case stated that the long history of friction and alcoholism and marital infelicity were the cause of the assault and that the injury was not the result of an accident arising out of employment.

“The risk existed before her employment. It was a personal risk she brought with her, a part of ’her domestic and private life. It was not a risk occasioned by, incident to, or a condition of, her employment.”

Thus, neither of the above cited cases support the majority’s view that those deaths would be presumed to be compensable under the positional risk rule, but for the employer producing evidence establishing a motive for the slaying personal to the employee. In both of said cases the factual pattern indicated that the cases fell into the second category rather than in the neutral risk category. Therefore, no presumption arose as to compensability.

The case of Louie v. Bamboo Gardens, 67 Idaho 469, 185 P.2d 712 (1947), cited by the majority, is a true example of a “neutral” risk. Therein the claimant while at work was shot by a person who upon later prosecution therefor was found to be insane. In that case the how of the accident was clear, but the why was unexplained. Therefore, the court awarded compensation holding that it was the employment which placed claimant in the position in which he was assaitlted.

The case of Foust v. Birds Eye Division of General Foods Corporation, 91 Idaho 418, 422 P.2d 616 (1967), cited by the majority as solidifying the positional risk doctrine in Idaho simply does not stand analysis. Claimant in that case was injured by a co-worker driving a private automobile while claimant was walking through a parking lot maintained by the employer for its employees. The court in that case held that a presumption arises that an injury arises out of and in the course of employment when it occurs on the employer’s premises. The court-held:

“The risks to which respondent was exposed derived solely from her employment.”

This is much the same as if she had been struck by a lift truck while working at a bench within a factory. Rather obviously, the Foust case falls in the first category of risks incident to employment.

Our statute, I.C. § 72-201, provides a remedy to a workman who receives injury “caused by an accident arising out of and in the course of any employment * * I apprehend that we merely paraphrase our statutory language if we say a compensable accident happens “in the course of” employment if the workman is injured while at the place of employment. I also apprehend that a compensable accident arises “out of” employment when it occurs as the result of a risk reasonably incident to that employment. To state the last- correlatively, it can be said that neither Duerock nor Devlin were shot as a result of a risk reasonably incident to employment. Rather, they both were shot at the place of employment because of risks that they brought to it from their outside life and which were personal to them.

We then come to the instant case most illustrative of the “neutral” risk. The death arose “in the course of” employment, but there is no proof one way or the other whether it arose “out of” employment. We arrive at a result in the case based on Louie v. Bamboo Gardens, supra, because there is no risk relationship to the employment and none to the individual personally. The rationale for assigning such a risk to employment is stated by Larson:

“Either the employer or the employee must bear the loss; to show connection with the employment there is at least the fact that the injury occurred while the employee was working and would not have happened to him if he had not been working; to show connection with the employee personally there is nothing; therefore, although the work connection is slender, it is at least stronger than any connection with the claimant’s personal life.”

Thus, we must squarely face the fact that in the difficult cases involving “neutral risks” we assign the risk and order compensation although one of the requirements of our statute for such assignment of compensability is absent. With such action I do not disagree, but I think it well to understand what we do.

The majority opinion feels it necessary to expressly overrule Wells v. Robinson Construction, 52 Idaho 562, 16 P.2d 1059 (1932). I disagree with the need expressed by the majority opinion. Wells involved an employee struck and killed by lightning while at work. While Wells, in a sense, may be said to involve a “neutral risk” set of facts, I do not believe its overruling is either necessary or desirable to reach the decision of the majority in the case at bar. If Idaho is to be committed to the positional risk doctrine in act of God cases, it should so be committed in an act of God case, not a case such as the one at bar.