Paul Ellis v. Verizon New England, Inc.

Supreme Court
No. 2010-431-M.P.
(08-3328)
Paul Ellis :
v. :
Verizon New England, Inc. :
NOTICE: This opinion is subject to formal revision before
publication in the Rhode Island Reporter. Readers are requested to
notify the Opinion Analyst, Supreme Court of Rhode Island, 250
Benefit Street, Providence, Rhode Island 02903, at Telephone 222-
3258 of any typographical or other formal errors in order that
corrections may be made before the opinion is published.
Supreme Court
No. 2010-431-M.P.
(08-3328)
Paul Ellis :
v. :
Verizon New England, Inc. :
Present: Suttell, C.J., Goldberg, Flaherty, Robinson, and Indeglia, JJ.
OPINION
Chief Justice Suttell, for the Court. The petitioner, Paul Ellis, was severely injured
when he was assaulted by a stranger in the West End of the City of Providence. Ellis had been
sent to that location by his employer, Verizon New England, Inc. (Verizon). Ellis’s claim for
workers’ compensation benefits was denied following a trial because the trial judge concluded
that Ellis had failed to prove that his injuries arose out of and in the course of his employment.
The Workers’ Compensation Court Appellate Division (Appellate Division) affirmed the trial
judge’s decision and Ellis sought review by this Court. We granted his petition for writ of
certiorari, and we now quash the decree of the Appellate Division.
I
Facts and Procedural History
The underlying facts of this case are undisputed. On September 17, 2007, Ellis, a splice
service technician, was sent by Verizon to a job site on Union Avenue in the West End of
Providence to repair outdoor cable lines. Ellis testified that, when he arrived, he heard a man,
who was standing across the street, yelling, among other things: “The country is going down.
The president is dead.” Although he initially ignored the man and went about his repair work,
Ellis eventually asked the man what his problem was. In response, the man picked up a piece of
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wood and hit Ellis on the head several times with it. Ellis was taken to Rhode Island Hospital,
where he received fourteen staples to treat two wounds on his head. Ellis also attended five
counseling sessions with a licensed mental-health professional for treatment of emotional stress.
Ellis’s assailant, who had fled the scene after the assault, was apprehended on September
19 and was criminally charged. During the time between the assault on Ellis and the arrest of his
assailant, Verizon sent its employees to the West End in pairs rather than alone. Additionally,
for a couple of weeks following the assailant’s arrest, Verizon reassigned employees who
objected to working alone in that neighborhood. Ellis returned to work on November 12, 2007
and, for the first two weeks after his return, he rode to job sites with another employee. Ellis’s
supervisor testified that he was not aware of any other assaults on employees that had taken place
in the West End during his thirty-nine-year tenure with the company.
At trial, Ellis offered the testimony of James Lucht, who was the Information Group
Director at the Providence Plan, an organization that, among other things, compiles and
aggregates statistics on violent crimes in various Providence neighborhoods. Lucht provided a
“hot spot” map of Providence that showed the relative concentration in various neighborhoods of
violent crimes that were committed between 2002 and 2007. Lucht described the data-collection
method used by the Providence Plan in creating this map and testified that “violent crimes”
included murder, sexual assault, robbery, and aggravated assault. Although the map depicted the
West End as a high-violent-crime area, Lucht acknowledged that there was no way to tell from
looking at the map what proportion of the crimes that occurred there were aggravated assaults, as
opposed to murders, rapes, and other violent crimes. Lucht also explained that the map depicted
aggregated statistics collected over a long period of time and did not indicate variations in crime
rates between, for example, night and day or winter and summer. Additionally, Lucht
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acknowledged that, because of the way crime rates were displayed on the map, it would be
possible for a very-low-crime pocket to appear as a high-crime area because the surrounding
neighborhoods have a high concentration of violent crime. Finally, Lucht said that, while much
of the Providence Plan’s crime data is publicly available on the organization’s website, data
breaking down the specific types of violent crimes occurring in each neighborhood is not. The
trial justice did not permit Lucht to testify about those statistics, reasoning that Verizon could not
be held responsible for knowledge that was not publicly available.
The trial judge, although expressing sympathy for Ellis, denied workers’ compensation
benefits because he concluded that Ellis’s injuries were noncompensable under Rhode Island’s
actual-risk test, which requires that there be some causal connection between the injury suffered
by the employee and the employment or the conditions of employment. See Nowicki v. Byrne,
73 R.I. 89, 92, 54 A.2d 7, 9 (1947). The trial judge commended Ellis for demonstrating the high-
crime nature of the neighborhood where he was assaulted, but he noted that the statistics did not
sufficiently differentiate between aggravated assault and other violent crimes. He also pointed
out that there had been no evidence produced that would demonstrate that Verizon was aware of
these crime statistics prior to the assault on Ellis; he added that, even if Verizon had been aware,
he nonetheless would have concluded that Ellis’s injuries were noncompensable under Rhode
Island’s actual-risk test.
The Appellate Division affirmed, holding that the trial judge did not err in determining
that the evidence adduced at trial failed to establish that this random assault was an actual risk of
Ellis’s employment as a splice technician with Verizon. Additionally, the Appellate Division
agreed with the trial judge’s assessment that the Providence Plan’s crime data were not specific
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enough to establish that Ellis was subjected to a special or increased risk of being assaulted at the
particular time he was sent to perform service in the West End.
Ellis petitioned this Court for writ of certiorari, which we granted.
II
Standard of Review
“Upon a petition for certiorari, we review a decree of the Appellate Division for any error
of law or equity pursuant to G.L. 1956 § 28-35-30.” 1 Mumma v. Cumberland Farms, Inc., 965
A.2d 437, 441 (R.I. 2009). Thus, we limit our review “to examining the record to determine if
an error of law has been committed.” Matter of Falstaff Brewing Corp. Re: Narragansett
Brewery Fire, 637 A.2d 1047, 1049 (R.I. 1994). However, we review de novo questions of
statutory construction. Mumma, 965 A.2d at 441.
Whether a workers’ compensation claimant has demonstrated the requisite causal
connection between his injury and his employment is a mixed question of law and fact: “This
1
General Laws 1956 § 28-35-30 limits this Court’s review of the Appellate Division’s decrees as
follows:
“(a) Upon petition for certiorari, the [S]upreme [C]ourt may
affirm, set aside, or modify any decree of the appellate [division]
of the workers’ compensation court only upon the following
grounds:
“(1) That the workers’ compensation court acted without or
in excess of its authority;
“(2) That the order, decree, or award was procured by
fraud; or
“(3) That the appellate division erred on questions of law or
equity, the petitioner first having had his objections noted to any
adverse rulings made during the progress of the hearing at the time
the rulings were made, if made in open hearing and not otherwise
of record.
“(b) Review shall not be granted by the [S]upreme [C]ourt
except as provided in this section, and the [S]upreme [C]ourt shall
disregard any irregularity or error of the appellate division or trial
judge unless it affirmatively appears that the petitioner was
damaged by the irregularity or error.”
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[C]ourt is bound by the [Workers’ Compensation] [C]ommission’s findings regarding the facts
surrounding the accident, and we will review those findings only to determine if the record
contains competent legal evidence in support thereof.” Maggiacomo v. Rhode Island Public
Transit Authority, 508 A.2d 402, 403 (R.I. 1986). However, if the facts are undisputed or
“would lead to but one conclusion, then the question of whether the injury arose out of the
employment is one of law and the [C]ourt is permitted to substitute its judgment for that of the
[C]ommission.” Branco v. Leviton Manufacturing Co., 518 A.2d 621, 622 (R.I. 1986); DeNardo
v. Fairmount Foundries Cranston, Inc., 121 R.I. 440, 449, 339 A.2d 1229, 1234 (1979).
III
Discussion
On appeal, Ellis specifies several errors in the Appellate Division’s decision. These can
be broken down into four general arguments—two of which concern the compensability of
Ellis’s injury under Rhode Island law; the third pertains to the relevance of Verizon’s knowledge
about the West End’s dangerousness; and the fourth concerns the proper methods for proving the
causal connection between injury and employment. First, Ellis argues that the actual-risk
standard was satisfied here because “street perils,” such as being assaulted by a stranger, are an
actual risk of working in the West End. Next, Ellis avers that Verizon’s decision to send him to
work in a dangerous neighborhood created a “special risk” that Ellis would be assaulted and that
assault was, therefore, an actual risk of his employment. Third, Ellis complains that the trial
judge (and the Appellate Division) erred in considering whether Verizon was on notice that the
West End is a high-crime area in reaching the determination on compensability and in excluding
evidence. Finally, Ellis asserts that the Appellate Division erred in affirming the trial court’s
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conclusion that the crime data he presented at trial did not sufficiently separate the incidence of
aggravated assaults from other types of violent crimes.
A
Compensability of the Injury
General Laws 1956 § 28-33-1 provides for workers’ compensation benefits to be paid to
an employee who “receives a personal injury arising out of and in the course of his or her
employment, connected and referable to the employment * * *.” Under Rhode Island law, the
claimant carries the burden of demonstrating that this “nexus or causal connection exists between
the injury sustained and the employment.” Toolin v. Aquidneck Island Medical Resource, 668
A.2d 639, 640 (R.I. 1995); see also Gaudette v. Glas-Kraft, Inc., 91 R.I. 304, 306, 163 A.2d 23,
24-25 (1960) (“Under § 28-33-1 the [claimant] * * * ha[s] the burden of establishing that he
suffered a personal injury arising out of and in the course of his employment, connected
therewith and referable thereto.”). To determine whether the requisite nexus exists between the
injury and the employment, we apply a three-part test first adopted by this Court in Di Libero v.
Middlesex Construction Co., 63 R.I. 509, 516, 9 A.2d 848, 851 (1939).
“We first inquire whether the injury occurred within the period of
the employee’s employment. Next, we examine the situs of the
injury to determine whether it occurred at a place where the
employee might reasonably have been expected to be. Third, we
inquire whether the employee was reasonably fulfilling the duties
of his or her job at the time of the injury or was performing some
task incidental to those conditions under which those duties were
to be performed.” Toolin, 668 A.2d at 641.
Here, it is undisputed that Ellis was injured during the period of his employment at a place where
Verizon might reasonably have expected him to be. Therefore, we need only determine whether,
at the time he was assaulted, Ellis was “reasonably fulfilling the duties of his * * * job * * * or
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was performing some task incidental to those conditions under which those duties were to be
performed.” Id.Modern courts generally take one of three approaches to determine whether the risk that
caused an injury is one “arising out of and in the course of [an employee’s] employment.” See 1
Arthur Larson & Lex K. Larson, Larson’s Workers’ Compensation Law § 3.01 at 3-2, 3-4
(Matthew Bender, rev. ed. 2012). Some jurisdictions apply an “increased-risk” test, under which
an injury is compensable if the employment increased the amount of exposure to a general risk
that is not unique to that employment but, rather, is one to which the general public is exposed.
Id. § 3.03 at 3-5. Other jurisdictions apply an “actual-risk” standard, under which an injury is
compensable even if it was caused by a risk that is common to the general public, so long as the
risk was an actual risk of that particular employment. Id. § 3.04 at 3-5. Finally, some
jurisdictions have embraced the “positional-risk” test, the broadest of the three, which essentially
applies a “but-for” analysis: if, but for the requirements or conditions of the employment, the
employee would not have been in the position that exposed him or her to risk of injury, that
injury is compensable. Id. § 3.05 at 3-6. This Court has consistently taken the position that only
those injuries arising from the actual risks of employment are compensable under the Di Libero
standard. See Dawson v. A & H MFG. Co., 463 A.2d 519, 521 (R.I. 1983) (“Our holdings * * *
clearly indicate that Rhode Island has not adopted a positional-risk test and probably should be
placed in the actual-risk category.”).
This Court has not yet been called upon to determine under what circumstances the risk
of random assault by a stranger is an actual risk of employment. 2 However, courts of other
2
We have previously addressed workplace assaults, but our cases are not directly on point with
the case at bar because they involved assaults that were either personally motivated or clearly
work-related. For example, in Gaudette v. Glas-Kraft, Inc., 91 R.I. 304, 305, 163 A.2d 23, 24
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jurisdictions and legal scholars have explored this issue extensively. See, e.g., Larson’s Workers’
Compensation Law § 8.03[2][b] at 8-63 to -66. In particular, Professor Larson has thoroughly
reviewed how courts have treated “neutral assaults,” which he defines to mean “those assaults
which are in essence equivalent to blind or irrational forces, such as attacks by lunatics, drunks,
small children, and other irresponsibles; completely unexplained assaults; and assaults by
mistake.” Id. § 8.03[1] at 8-62. He observes that a minority of jurisdictions treat such assaults as
noncompensable “for want of affirmative proof of distinctive employment risk as the cause of
the harm,” but that a growing number of jurisdictions have begun to treat injuries from random
assaults as compensable under a positional-risk standard. Id.
Ellis argues that being randomly assaulted by a stranger was an actual risk of his
employment with Verizon. In particular, he attempts to draw an analogy between the facts of his
case and this Court’s jurisprudence recognizing the “street perils” associated with traveling on
public roadways as actual risks of employment. Verizon responds that the Appellate Division
correctly applied Rhode Island’s actual-risk test to the case at bar and that the “street perils” line
of cases should not be expanded to encompass criminal activity.
In limited circumstances, our jurisprudence has recognized certain “street perils” as
actual risks of employment, permitting compensation where employees have been injured while
(1960), an employee was injured in a fight with a co-worker while using the company sink. We
consider the fight in that case to be distinguishable from the random assault at issue here
because, there, the trial court concluded that the basis of the quarrel was private rather than
employment-related and, therefore, “the assault was not attributable in whole or in part to the
nature, conditions, obligations or incidents of petitioner’s employment * * *.” Id. at 307, 163
A.2d at 25. In Correia v. McCormick, 51 R.I 301, 302, 303, 154 A. 276, 276 (1931), overruled
on other grounds, St. Goddard v. Potter & Johnson Machine Co., 69 R.I. 90, 94, 31 A.2d 20, 22
(1943), this Court awarded compensation when an employee was struck by an angry truck driver
who was attempting to deliver gravel to a construction site. There, we concluded that the assault
was prompted by the employee’s refusal to stray from protocol and, thus, arose out of his job
duties. Id. at 303, 154 A. at 276.
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using public roadways in connection with their employment. For example, in Sullivan v. State,
89 R.I. 119, 122, 151 A.2d 360, 362 (1959), we held that, when a court employee was struck by
an automobile while returning to the courthouse from a refreshment run that had been sanctioned
by his supervisor, his injuries were compensable because “[i]n th[o]se circumstances the
employment required the [employee] to use the public highway and therefore the risks of such
highway must be considered risks of the employment.” Similarly, in Branco, 518 A.2d at 623,
we held that when an employer required its employees to cross a busy road to get from the
employee parking lot to the employer’s facility, and an employee was hit by an automobile while
crossing the road on the way to his shift, his injury was compensable. There, we reasoned that
“because [the] employer placed [the employee] in the position of having to negotiate [a busy
road] each work day in order to reach his post, the risk entailed in crossing the highway must be
considered a condition incident to his employment.” Id. Finally, in Toolin, 668 A.2d at 640, 641,
we concluded that, when a nursing assistant who was required by her employer to travel to and
from patients’ homes was injured in an automobile accident while traveling between patients’
homes, “the risk of travel on public roads must be considered a condition incident to [the
employee’s] employment,” notwithstanding the fact that her employer neither paid her for travel
time nor reimbursed her for travel expenses.
However, we also have held that injuries caused by other risks unrelated to the common
perils of the roadways are noncompensable. For instance, we held that, when an employee who
had completed his workday and was departing from his employer’s facility (Hillsgrove Airport,
which is now named Theodore Francis Green Airport) in his own automobile was hit by a stray
bullet that had been fired on a neighboring property, the injury was deemed to be
noncompensable because being hit by a stray bullet “was not a natural or necessary
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consequence” of the employee’s employment at the airport. Nowicki, 73 R.I. at 90-91, 93, 54
A.2d at 8, 9.3 Similarly, when an employee was stung by a bee in the hallway of his employer’s
facility, we held that the injury was noncompensable because the employee failed to demonstrate
“that this risk, even though common to the public, was in fact a risk of his employment.”
Dawson, 463 A.2d at 521-22. See also Maggiacomo, 508 A.2d at 403, 404 (holding that, under
the actual-risk standard, when a bus driver threw out his back as a result of a coughing fit that
was otherwise unrelated to his employment, his injuries were noncompensable).
We also are mindful of the tension between two policies underlying Rhode Island’s
Workers’ Compensation Act. On one hand, “[t]his [C]ourt has consistently repeated that the
concept underlying the Workers’ Compensation Act is to provide financial and medical benefits
to workers who have been injured while on the job by making the employer carry the burden to
provide payments.” Dawson, 463 A.2d at 522 (Bevilacqua, C.J., and Kelleher, J., dissenting)
(citing Guilmette v. Humble Oil & Refining Co., 114 R.I. 508, 512, 336 A.2d 553, 555 (1975);
Nardolillo v. Big G Supermarket, Inc., 111 R.I. 751, 755, 306 A.2d 844, 847 (1973)); see also
DeNardo, 121 R.I. at 452, 399 A.2d at 1236 (Kelleher, J., concurring) (“This [C]ourt has long
recognized that the Act’s provisions must be given a liberal construction with an eye to
effectuating their evident humanitarian purpose.”). On the other hand, “the Legislature clearly
did not intend for the act to compensate every worker who is injured while at his place of
employment regardless of the circumstances involved.” Maggiacomo, 508 A.2d at 404; see also
Zuchowski v. United States Rubber Co., 102 R.I. 165, 172, 175, 229 A.2d 61, 65, 66 (1967) (“To
hold [an idiopathic workplace fall compensable] would convert workmen’s compensation into a
3
Interestingly, Professor Larson notes “an almost complete parallel between the lunatic-assault
cases and stray-bullet cases, as they originate as extensions of the street-risk doctrine * * *.”
Arthur Larson & Lex K. Larson, Larson’s Workers’ Compensation Law § 8.03[2][b] at 8-64
(Matthew Bender, rev. ed. 2012).
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form of health insurance. This we cannot accept, as it was never the intent of the [L]egislature to
afford this type of protection to an injured workman.”).
Having carefully considered our own case law, the policies underlying the Workers’
Compensation Act, and persuasive authority, we conclude that Ellis’s injury here is compensable
under the street-peril doctrine. Ellis’s employment for Verizon required that he park his work
vehicle on public streets and then walk to and from his vehicle, as the tasks required. It was in
the course of returning to his work vehicle that he was assaulted on a public street, apparently
randomly, by an individual whom the trial judge characterized as “at least slightly off his
rocker.” This Court has held that the risk of being injured in an automobile accident is among
the street perils to which an employee is exposed when his or her employment requires travel on
public roads. See Toolin, 668 A.2d at 641; Branco, 518 A.2d at 623; Sullivan, 89 R.I. at 122, 151
A.2d at 362. Thus, we conclude that, under our established case law, had Ellis been struck by a
car—rather than by a stick-wielding assailant—as he returned to where his work vehicle was
parked on the street, his injuries would have been compensable. See, e.g., Branco, 518 A.2d at
623; Sullivan, 89 R.I. at 122, 151 A.2d at 362. We discern no meaningful difference between
being struck by an assailant and being struck by an automobile (both while traveling on a public
road) because, in either instance, the possibility of injury is an actual risk to which employees are
necessarily exposed if they are required by their employers to travel on public roads.
Moreover, we are satisfied that the street-risk doctrine is not confined to automobile
accidents. In a case cited by this Court in Sullivan, 89 R.I. at 122, 151 A.2d at 362, the New
York Court of Appeals affirmed an award of compensation to a chauffeur who had been stabbed,
stating that “[t]he risk of being stabbed by an insane man running amuck seems in a peculiar
sense a risk incidental to the streets to which [the] claimant was exposed by his employment.”
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Katz v. A. Kadans & Co., 134 N.E. 330, 331 (N.Y. 1922). In a rather stark portrayal of the perils
of urban life, the court explained:
“The street becomes a dangerous place when street brawlers,
highwaymen, escaping criminals, or violent madmen are afoot
therein as they sometimes are. The danger of being struck by them
by accident is a street risk because it is incident to passing through
or being on the street when dangerous characters are abroad.
“Particularly on the crowded streets of a great city, not only
do vehicles collide, pavements become out of repair, and crowds
jostle, but mad or biting dogs may run wild, gunmen may
discharge their weapons, police officers may shoot at fugitives
fleeing from justice, or other things may happen from which
accidental injuries result to people on the streets which are peculiar
to the use of the streets and do not commonly happen indoors.” Id.We hasten to add that, notwithstanding such colorful language, the specific risks to which an
employee may be exposed on the public roadways by virtue of his or her employment must
perforce be the subject of a case-by-case analysis.
We also emphasize that our holding in this case should not be construed as a retreat from
the actual-risk test. We reach our conclusion, rather, in recognition of the principle “that the
risks of the street are the risks of the employment, if the employment requires the employee’s use
of the street.” Hudson v. Thurston Motor Lines, Inc., 583 S.W.2d 597, 602 (Tenn. 1979).
Clearly, Ellis, as a splice service technician for Verizon, was exposed to the risks of the street on
a regular basis. We are satisfied that such risks include the risk of a random assault by a
stranger, as distinguished from an assault specifically directed against an employee for non-
employment-related reasons. In the case under review, however, we hold that being assaulted
while on a public road was an actual risk of Ellis’s employment and, thus, he “receive[d] a
personal injury arising out of and in the course of his * * * employment, connected and referable
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to the employment * * *.” Section 28-33-1. Therefore, we conclude that Ellis’s injury is
compensable.
B
Remaining Arguments
Given our holding that Ellis’s injuries are compensable under the street-peril doctrine, we
find it unnecessary to determine whether Ellis’s injuries might also be compensable under a
special or increased-risk theory. Additionally, because Ellis need not prove under the street-peril
doctrine that there was a higher-than-average likelihood that he would be assaulted while
working in the West End, we need not decide whether Ellis presented sufficient evidence of the
neighborhood’s dangerousness, nor need we pass on whether the trial judge improperly
considered Verizon’s knowledge of the neighborhood’s dangerousness.
IV
Conclusion
For the reasons set forth in this opinion we quash the decree of the Appellate Division.
The record shall be remanded with our decision endorsed thereon.
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RHODE ISLAND SUPREME COURT CLERK’S OFFICE
Clerk’s Office Order/Opinion Cover Sheet
TITLE OF CASE: Paul Ellis v. Verizon New England, Inc.
CASE NO: No. 2010-431-M.P.
(08-3328)
COURT: Supreme Court
DATE OPINION FILED: April 12, 2013
JUSTICES: Suttell, C.J., Goldberg, Flaherty, Robinson, and Indeglia, JJ.
WRITTEN BY: Chief Justice Paul A. Suttell
SOURCE OF APPEAL: Workers’ Compensation Court
JUDGE FROM LOWER COURT:
Associate Judge Bruce Q. Morin
Associate Judge Debra Olsson
ATTORNEYS ON APPEAL:
For Petitioner: Robert S. Thurston, Esq.
For Respondent: Thomas M. Bruzzese, Esq.