George Roberson, etc, etal v. Bonnie Whetsel, etc

COURT OF APPEALS OF VIRGINIA
Present: Chief Judge Moon, Judge Willis and
Senior Judge Hodges
Argued at Alexandria, Virginia
GEORGE A. ROBERSON, CPA and
SELECTIVE INSURANCE COMPANY OF AMERICA
OPINION BY
v. Record No. 2609-94-4 CHIEF JUDGE NORMAN K. MOON
NOVEMBER 21, 1995
BONNIE S. WHETSELL, ADMINISTRATOR
OF THE ESTATE OF MICHAEL B. WHETSELL
FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION
Edward H. Grove, III (Brault, Palmer, Grove,
Zimmerman, White & Mins, on brief), for
appellants.
William C. Mims (Worcester, Mims & Atwill,
P.C., on brief), for appellee.
Michael B. Whetsell was shot and killed as he drove from his
employer's office to the building where he worked as a custodian.
The Workers' Compensation Commission ruled that Whetsell's death
arose out of his employment because that employment required him
to drive through a dangerous area. We agree and affirm because
credible evidence proved that Whetsell's exposure to gunfire was
heightened by the environment in which he worked.
Whetsell was a custodian working for appellant George
Roberson. Whetsell's job was to maintain the Jackson
Professional Building, a medical office complex in Leesburg.
Whetsell received his paycheck every Tuesday, and on that day
drove to Roberson's main office to pick up his check and receive
special instructions for work he was to do that week. The only
direct route to the main office took him past Loudoun House, a
subsidized housing project bordered on one side by Edwards Ferry
Road.
On June 16, 1992, Whetsell picked up his check and was
driving back to the Jackson Building on Edwards Ferry Road at
about 4:30 p.m. when he was struck by a bullet. The bullet split
his spine, and he died three days later. No one has been charged
in the shooting. Investigation revealed that the bullet came
from the direction of Loudoun House, and reenactment of the shot
established the probable location as the upper level of Loudoun
House.
The claimant, Whetsell's surviving spouse, presented
considerable evidence on the dangers posed by traveling near
Loudoun House. The town manager of Leesburg, Stephen C. Brown,
testified that Loudoun House has a higher incidence of police
activity than any other place in town. Crime statistics for
Leesburg established that the northeast quadrant of the city has
the highest incidence of illegal drug activity, and that Loudoun
House is the focus of that activity. Of particular relevance
here, the town manager testified that the discharge of firearms
at Loudoun House is a special concern for the Leesburg police.
Mr. Brown also testified that the intersection where Whetsell was
shot posed a greater risk of exposure to criminal activity than
any other intersection in Leesburg.
Whetsell's son, who had lived within several blocks of
Loudoun House for some years before his father's death, testified
that he heard gunfire from Loudoun House every day. Whetsell on
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numerous occasions had expressed concern over the increase in
drug activity and use of firearms at the complex.
The issue on appeal is whether Whetsell's fatal injuries
arose out of his employment. Whether an injury arose out of
employment is a mixed question of law and fact. Plumb Rite
Plumbing Service v. Barbour, 8 Va. App. 482, 483, 382 S.E.2d 305,
305 (1989). Factual findings of the commission will not be
disturbed on appeal, if based on credible evidence. Hercules,
Inc. v. Gunther, 13 Va. App. 357, 361, 412 S.E.2d 185, 187
(1991).
An accident arises out of the employment if a causal
connection is established between the employee's injury and the
conditions under which the employer required the work to be
performed. The causative danger must be peculiar to the work and
not common to the neighborhood. R&T Investments, Ltd. v. Johns,
228 Va. 249, 252-53, 321 S.E.2d 287, 289 (1984).
Our inquiry is not ended simply because the general public
is also exposed to the risk. As the Supreme Court stated in R&T
Investments Ltd., 228 Va. at 253, 321 S.E.2d at 289, "[t]he mere
fact that the hazard is one to which the general public is
likewise exposed is not . . . conclusive against the existence of
such causal relationship. Honaker v. Hartley, 140 Va. 1, 11, 124
S.E. 220, 222 (1924). The requisite nexus in an assault case is
supplied if there is ``a showing that the probability of assault
was augmented either because of the peculiar character of the
claimant's job or because of the special liability to assault
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associated with the environment in which he must work.' 1 A.
Larson, The Law of Workmen's Compensation § 11.11(a) at 3-161
(1984)." Jobs often held to pose a special risk of assault are
those that involve working in or traveling through dangerous
areas. 1 A. Larson, supra, § 11.11(b) at 3-192-95. 1
In R&T Investments, Ltd. v. Johns, an employee of a coin
shop who regularly made bank deposits as part of her job was
injured during a bank robbery. Although the money she had
planned to deposit was stolen in the robbery, there was no
indication that she had been targeted or even recognized as a
coin shop employee. The Court found that "the claimant's regular
presence in a branch bank, an environment that is prone to the
violence of robbery, exposed her to a special risk of assault,"
R&T Investments, Ltd., 228 Va. at 254, 321 S.E.2d at 290, and
therefore the injury arose out of the employment. In so holding,
the Court rejected the employer's argument that all of the
customers were equally exposed to the danger of robbery, and that
the robbery was a noncompensable "random event." Id. 2
1 A threshold question is whether this case can properly
be decided on principles developed for assault cases, where no one
has been arrested and it is unknown whether the shooting was
intentional. We see no reason to distinguish between intentional
shooting and shooting where intent cannot be established. If the
employee's risk of exposure to either was heightened by the
conditions of his employment, the resulting injury arose out of
the employment. The gunfire fatal to Whetsell was necessarily
unlawful, because a local ordinance prohibited the discharge of
firearms within town limits.
2 The appellant seeks to distinguish R&T Investments, Ltd.
on the ground that the claimant was awarded benefits because of
the nature of her employment as a funds courier, and not because
of her presence in a high crime area, i.e., the bank. While the
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Claimant had to prove that Whetsell's risk of being shot was
peculiar to his employment. R&T Investments, Ltd., 228 Va. at
255, 321 S.E.2d at 290. Claimant sought to meet this burden by
presenting evidence that the intersection near Loudoun House,
which was Whetsell's only direct route to Roberson's office,
posed a heightened risk of exposure to gunfire and other criminal
activity. This evidence, much of which came from Leesburg's town
manager, was credible and uncontroverted. Based on that
evidence, the commission found that "the employee's occupation
required him to drive through a crime ridden area and by a
building notorious for its frequent shootings." While the
commission's language is expansive, its basic conclusion--that
Whetsell's employment exposed him to a heightened risk of being
shot--is supported by credible evidence. This evidence is
sufficient to show that the injury arose out of Whetsell's
employment.
This evidence distinguishes this case from those relied on
by the appellants. In Baggett and Meador Cos. v. Dillon, 219 Va.
633, 248 S.E.2d 819 (1978), the Court denied benefits to a truck
driver who was killed by gunfire while parked at a rest stop.
The Court held that the risk was not peculiar to the claimant's
work because there was no indication that he was targeted as a
truck driver or that, as a truck driver, he was subjected to a
claimant's status as a courier was a factor in the Court's
decision, her regular presence in a "dangerous" location was
equally important. The Court's decision would otherwise make
little sense, as the claimant was not targeted as a courier.
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greater risk of being shot on a highway than the general public.
In contrast, claimant has shown that Whetsell was required, as a
condition of his employment, to pass by a public housing complex
where gunfire was commonplace. The general public passes through
the intersection also, just as they did through the bank in R&T
Investments, Ltd. But unlike the general public, Whetsell was
required, as a condition of his employment, to make "repeated,
regular trips" through the area. R&T Investments, Ltd., 228 Va.
at 255, 321 S.E.2d at 290.
The claimant's evidence of gunfire around Loudoun House also
distinguishes this case from Hill City Trucking v. Christian, 238
Va. 735, 385 S.E.2d 377 (1989), and Metcalf v. A.M. Express
Moving Systems, Inc., 230 Va. 464, 339 S.E.2d 177 (1986). In
Metcalf, the claimant expressly declined to rely on an increased
risk of assault peculiar to his employment, relying instead on
the presumption in death cases set forth in Southern Motor Lines
Co. v. Alvis, 200 Va. 168, 104 S.E.2d 735 (1958). Claimant in
this case took the opposite approach, and provided evidence to
support the claim of increased risk.
In Hill City Trucking v. Christian, the Supreme Court denied
compensation to a truck driver assaulted by robbers because the
claimant did not show that he was targeted for assault as a truck
driver, and because anyone traveling down the road at 3:00 a.m.
was subject to the same risk. The claimant did not show that
there was a greater risk of assault during the hours when or on
the roads where he was required to drive. Unlike the claimant
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here, the claimant in Hill City Trucking failed to supply the
causal nexus between the risk and the employment, and thus failed
to show that his injuries arose out of his employment.
Viewing the evidence in the light most favorable to
claimant, we hold that a direct causal connection was established
between Whetsell's fatal injuries and the conditions of his
employment. Therefore, we affirm the decision of the commission.
Affirmed.
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