Kell, Kristie L.

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Workmen\u27s Compensation--Recovery Allowed for Neutral Assaults--Recovery Denied for Personally-Motivated Assaults

University of Missouri School of Law

Missouri Law Review Volume 41 Issue 2 Spring 1976 Article 16 Spring 1976 Workmen's Compensation--Recovery Allowed for Neutral Assaults--Recovery Denied for Personally-Motivated Assaults Kristie L. Kell Follow this and additional works at: https://scholarship.law.missouri.edu/mlr  Part of the Law Commons Recommended Citation Kristie L. Kell, Workmen's Compensation--Recovery Allowed for Neutral Assaults--Recovery Denied for Personally-Motivated Assaults, 41 MO. L. REV. (1976) Available at: https://scholarship.law.missouri.edu/mlr/vol41/iss2/16 This Note is brought to you for free and open access by the Law Journals at University of Missouri School of Law Scholarship Repository. It has been accepted for inclusion in Missouri Law Review by an authorized editor of University of Missouri School of Law Scholarship Repository. For more information, please contact bassettcw@missouri.edu. MISSOURI LAW REVIEWAs the dissent stated, the testatrix' intention should not be defeated unlessit clearly prejudices the public interest.Missouri cases are in agreement that courts should be extremelycautious in holding a will provision void as against public policy. If theEyerman decision is read as expanding the application of the doctrine tofactual situations not previously held to be clearly in violation of the pub-lic interest, the result is highly questionable. Public policy should not beused as an elastic concept to be readily extended to situations which thecourt believes to be contrary to the public good, but which have neverbeen articulated in either judicial decision or statute to be actually con-trary to the public interest.TERESA WEARWORKMEN'S COMPENSATION-RECOVERYALLOWED FOR NEUTRAL ASSAULTS-RECOVERYDENIED FOR PERSONALLY-MOTIVATED ASSAULTSPerson v. Scullin Steel Co.'Allen v. Dorothy's Laundry & Dry Cleaning Co. 2Person, an employee of Scullin Steel Company, was in the habit ofdriving Barber, a fellow employee, to work each day. Stopping by Barber'shouse on November 7, 1970, Person was told by Barber's wife that herhusband would not be going to work that day. Person proceeded withouthim. Barber subsequently accosted Person at work and berated him forThe right of a court to declare what is or is not in accord with publicpolicy does not extend to specific economic or social problems which arecontroversial in nature and capable of solution only as the result ofa study of various factors and conditions. It is only when a given policyis so obviously for or against the public health, safety, morals or welfarethat there is a virtual unanimity of opinion in regard to it, that a courtmay constitute itself the voice of the community in so declaring. Theremust be a positive, well-defined, universal public sentiment, deeply inte-grated in the customs and beliefs of the people and in their conviction ofwhat is just and right and in the interests of the public weal .... If, in thedomain of economic and social controversies, a court were, under the guiseof the application of the doctrine of public policy, in effect to enact pro-visions which it might consider expedient and desirable, such action wouldbe nothing short of judicial legislation, and each such court would becreating positive laws according to the particular views and idiosyncraciesof its members. Only in the clearest cases, therefore, may a court make analleged public policy the basis of judicial decision.Id. at 825, 17 A.2d at 409. See also Jenkins v. First Nat'l Bank in Dallas, 107F.2d 764, 765 (5th Cir. 1939); In re Rahn's Estate, 316 Mo. 492, 501, 291 S.W.120, 123, cert. denied, 274 U.S. 745 (1927); In re Mohler's Estate, 343 Pa. 299,303, 22 A.2d 680, 683 (1941).1. 523 S.W.2d 801 (Mo. En Banc 1975).2. 523 S.W.2d 874 (Mo. App., D.K.G. 1975).[Vol. 411Kell: Kell: Workmen's Compensation--Recovery Allowed for Neutral AssaultsPublished by University of Missouri School of Law Scholarship Repository, 1976RECENT CASESnot waiting for him. Person went about his work, but shortly thereafterwas unexpectedly shoved by Barber, causing him to fall and sustain in-juries. 3 Person's claim for workmen's compensation was denied.Allen, an employee of Dorothy's Laundry & Dry Cleaning Company,was shot by a berserk rifleman while delivering laundry for his employer.Allen was apparently the victim of a "radical protestor" who also killedtwo policemen during his shooting spree. Allen's claim for workmen's com-pensation was upheld.In both Person and Allen the courts were called upon to construeMissouri's amended workmen's compensation statute, section 287.120 (1),RSMo 1969. Section 287.120(1) defines an employer's liability for injuryor death of an employee stemming from an accident "arising out of and inthe course of employment." 4 A 1969 amendment added the following tosection 287.120(1):The term "accident" as used in this section shall include, but notbe limited to, injury or death of the employee caused by the un-provoked violence or assault against the employee by any person.5Person contended that this statute should be construed to mean thatall work-related assaults, except those in which the claimant was theaggressor, should be compensable. 6 Allen contended that all unprovokedassaults should be compensable, and further, that no connection with thejob need be shown.7The Supreme Court of Missouri held in Person that claimant's in-juries were not compensable because they arose out of a personal dispute.,The Kansas City District of the Missouri Court of Appeals decided inAllen that compensation should be awarded because the claimant wasthe victim of a neutral attack, not having its origins in either Allen'semployment or in his personal matters.9 In both cases the courts foundthat the 1969 amendment eliminated the necessity for showing that the5. Some evidence indicated the argument was pursued again at the timeBarber shoved Person. 523 S.W.2d at 802.4. Prior to the 1969 amendment, this section read in part:[T]he employer shall be liable irrespective of negligence, to furnishcompensation under the provisions of this chapter for personal injuryor death of the employee by accident arising out of and in the courseof his employment...."Arising out of" the employment generally means that the injury was causedby an increased risk which claimant was subjected to by his employment. "Inthe course of" employment means that an injury takes place within the timeperiod of the employment, at a location where the employee should reasonablybe while fulfilling his duties or something incidental to them. 1 A. LARSON, THELAW or WoaMmEN's COmPENSATION §§ 6.00, 14.00 (1952).5. § 287.120(1), RSMo 1969.6. 523 S.W.2d at 803.7. 523 S.W.2d at 877.8. The court rejected the contention that an argument over transportationto and from work was connected with the employment. 523 S.W.2d at 806.9. 523 S.W.2d at 878.1976]2Missouri Law Review, Vol. 41, Iss. 2 [1976], Art. 16https://scholarship.law.missouri.edu/mlr/vol41/iss2/16MISSOURI LAW REVIEWassault arose out of the employment only in the case of neutral assaults,leaving assaults stemming from personal matters uncompensable.Workmen's compensation provides benefits to employees who sustaininjury in a work-related accident, regardless of negligence or fault on thepart of the employee. An "accident" is defined in Missouri as "an unex-pected or unforeseen event happening suddenly and violently, with or with-out human fault and producing at the time objective symptoms of aninjury."' 0 In Missouri assaults are deemed to be accidents for purposes ofworkmen's compensation." However, unlike other accidents where negli-gence is of no consequence, the cause of an assault is important in de-termining whether it is compensable. Assaults are generally categorizedinto three classes: those distinctly associated with the employment,' 2 thosepersonal to the claimant,' 3 and those which are neutral assaults-stemmingneither from employment nor from personal beginnings. 14For an assault to be compensable under Missouri law before 1969, ithad to "arise out of" the work situation and thus fall in the category ofassaults distinctly associated with the employment. A compensable assaultmust have had its origin in something connected with the employment orsome particular duty which the employment imposed,1 or the employ-ment had to expose the employee to an unusual risk of injury which wasnot shared by the public.' 6 Consequently, prior to 1969 neither so-called"neutral assaults"' 7 nor personally-motivated assaults' s were compensable.Two 1965 neutral assault cases denied claims specifically because the10. § 287.020 (2), RSMo 1969.11. Keithley v. Stone & Webster Eng'r Corp., 226 Mo. App. 1122, 1127-28, .9S.W.2d 296, 300 (K.C. Ct. App. 1982).12. Missouri finds a risk to be distinctly associated with the employmentwhen the degree to which the employee is exposed to it by reason of his em-ployment is over and above that of the public at large. Sweeney v. Sweeney TireStores Co., 227 Mo. App. 93, 100, 49 S.W.2d 205, 208 (St. L. Ct. App. 1932); InSweeney the decedent, manager of a tire store, was killed during a robbery. Thecourt held that the assault was peculiar and special to the status of the deceasedas a manager and therefore compensable.13. Personal assaults are those which have no connection with the employ-ment-e.g., an assault stemming from an argument over a bottle of wine whenwine was not permitted on the employer's premises and had nothing to do withwork. Lardge v. Concrete Products Mfg. Co., 251 S.W.2d 49 (Mo. 1952).14. 1 A. LARSON, TnE LAw or WORmmEN's COMPENSArON § 11.31 (1952). SeeRies v. DeBord Plumbing Co., 186 S.W.2d 488 (St. L. Mo. App. 1945) (claimantwas assaulted when leaving work for no known reason and without provocation).15. Macalik v. Planters Realty Co., 144 S.W.2d 158, 159 (St. L. Mo. App.1940).16. Ries v. DeBord Plumbing Co., 186 S.W.2d 488, 489 (St. L. Mo. App. 1945).17. Kelley v. Sohio Chem. Co., 383 S.W.2d 146 (K.C. Mo. App. 1964), af 'd,392 S.W.2d 255 (Mo. En Banc 1965); Liebman v. Colonial Baking Co., 391 S.W.2d948 (St. L. Mo. App. 1965); Scherr v. Siding & Roofing Sales Co., 805 S.W.2d 62(St. L. Mo. App. 1957); May v. Ozark Cent. Tel. Co., 272 S.W.2d 845 (St. L.Mo. App. 1954); Long v. Schultz Shoe Co., Inc., 257 S.W.2d 211 (St. L. Mo. App.1953); Ries v. DeBord Plumbing Co., 186 S.W.2d 488 (St. L. Mo. App. 1945).18. Toole v. Bechtel Corp., 291 S.W.2d 874 (Mo. 1956); Foster v. Aines FarmDairy Co., 263 S.W.2d 421 (Mo. 1954); Lardge v. Concrete Products Mfg. Co., 251[Vol. 413Kell: Kell: Workmen's Compensation--Recovery Allowed for Neutral AssaultsPublished by University of Missouri School of Law Scholarship Repository, 1976RECENT CASESinjuries did not "arise out of" the employment. In Kelley v. Sohio ChemicalCo.19 an employee was struck in the head by an unknown assailant forno apparent motive. The Missouri Supreme Court denied compensationbecause the claimant had failed to meet her burden of showing that herwork exposed her to extra hazards and that there was a direct causalconnection between the assault and her employment. The court stated:"It is not sufficient that the employment may simply have furnished anoccasion for an injury from some unconnected source."2 0 In Liebman v.Colonial Baking Co.21 the St. Louis Court of Appeals denied recovery toa bakery employee who was assaulted by a drunken stranger while deliver-ing bread, for the same reasons as stated in Kelley.These two decisions were consistent with the Missouri courts' rejectionof the "positional-risk" doctrine. This doctrine, which can be used tojustify coverage of all varieties of neutral injury-producing risks, is that:An injury arises out of the employment if it would not haveoccurred but for the fact that the conditions and obligations ofthe employment placed claimant in the position where he wasinjured.22Positional-risk was expressly rejected in Missouri in Lathrop v. Tobin-Hamlton Shoe Manufacturing Co. 23 Lathrop was a case of a classic neutralrisk, where a driverless, runaway car crashed through the window next towhich claimant was working and injured her. Compensation was deniedon the grounds that the injury was not a rational consequence of a hazardconnected with the employment.In both Person and Allen the courts found that the 1969 amendmentto section 287.120(1) was intended to enlarge the category of compensableassaults to include neutral assaults such as those in Kelley and Liebman.Thus, a claimant in a neutral assault case such as Allen is no longer forcedto show that the injury was one which had a direct connection with theemployment. Such a claimant now has to show only that he was in thecourse of his employment and that the assault did not stem from a per-sonal motivation. In Person, however, the court found that the legislaturehad not intended to enlarge the category of compensable assaults to includethose that are personally motivated. Refusing compensation for personally-motivated assaults is consistent with the view of most jurisdictions.24Judge Bardgett dissented in Person, saying that the legislature in-tended to compensate even privately-motivated assaults. He based thisS.W.2d 49 (Mo. 1952); Staten v. Long-Turner Constr. Co., 185 S.W.2d 375 (K.C. Mo.App. 1945).19. 383 S.W.2d 146 (K.C. Mo. App. 1964), aff'd, 392 S.W.2d 255 (Mo. EnBanc 1965).20. 392 S.W.2d at 257.21. 391 S.W.2d 948 (St. L. Mo. App. 1965).22. 1 A. LARSON, Tr LAw oF Womnm's COMPENSATION § 6A0 (1952).23. 402 S.W.2d 16 (Spr. Mo. App. 1966).24. Freeman v. Callow, 525 S.W.2d 371, 376 n.3 (Mo. App., D. Spr. 1975).1976]4Missouri Law Review, Vol. 41, Iss. 2 [1976], Art. 16https://scholarship.law.missouri.edu/mlr/vol41/iss2/16MISSOURI LAW REVIEWposition on the fact that compensation was denied in Kelley and Liebmanbecause the assaults did not "arise out of" the employment, not becausethe attacks were provoked.25 This analysis of Kelley and Liebman and thesubsequent amendment to the statute led Judge Bardgett to conclude thatall assaults, even those with an origin outside the employment, are com-pensable, except where the claimant provoked the attack.20 This broad viewof the amendment, however, would extend coverage far beyond its pastlimits in Missouri, and in fact beyond that allowed in most states.27In Person and Allen the Missouri courts have adopted a positional-risk theory, at least in assault cases. To be compensable, non-personally-motivated assaults need only occur "in the course of" the employment,but need not be distinctly associated with the employment. However, allpersonally-motivated assaults will remain noncompensable. Such a test isunique in the workmen's compensation area in Missouri, going furtherin allowing compensation for an assault than other types of accidents.The Missouri courts in Person and Allen have recognized the needto extend workmen's compensation benefits to neutral assault victims intheir interpretation of section 287.120(1), although the section itself isunclear in its wording and intent.28 It seems that this view should log-ically be extended to allow compensation for all neutral accidents, notjust assaults. The "runaway car" type of case would then be compensable.Applying the positional-risk theory to other types of accidents in whichthe employee is injured from a non-work-related source would placeregular accident coverage on a parallel with assault coverage. If compen-sation were extended to neutral accidents, only those injuries which werereceived due to idiopathic causes-i.e., causes peculiar to the employee andin no way stemming from the employment activity, would remain non-compensable.2 9The purpose of workmen's compensation is to provide recovery foremployment-associated injuries. Refusing to compensate only personal as-sault victims and those who suffer injuries due to idiopathic causes wouldbe consistent with this goal. It would make the employer bear the burdenof all injuries which were work-related, either directly, or because of the25. 523 S.W.2d at 807-08.26. This interpretation of the Kelley and Liebman decisions ignores thefact that the assaults in both cases were "neutral" rather than privately-motivated.Therefore, legislative intent to compensate personal assaults was not necessarilythe reason for the amendment to section 287.120(1).27. Only Louisiana compensates private assaults which have no connectionwith the employment other than that they occur during the course of the em-ployment. 1 A. LARSON, THE LAW OF WORKMEN'S COMPENSATION § 11.21 (1952).28. In fact, a literal reading of section 287.120 (1), RSMo 1969, gives no indi-cation of a change in the law at all. The proviso defining "accident" to includeassault gives no indication that the "arising out of" or "in the course of" require-ments are not to apply to assaults.29. See Collins v. Combustion Eng'r Co., 490 S.W.2d 394 (Mo. App., D. St. L.1973). An example of an idiopathic cause of an accident is a dizzy spell causedby an employee's non-work-related illness.[Vol. 415Kell: Kell: Workmen's Compensation--Recovery Allowed for Neutral AssaultsPublished by University of Missouri School of Law Scholarship Repository, 19761976] RECENT CASES 319location of the victim in his course of employment. Extending coverage toneutral assaults, but not extending coverage to neutral accidents ingeneral, draws an illogical dividing line.KRISTIE L. KELL6Missouri Law Review, Vol. 41, Iss. 2 [1976], Art. 16https://scholarship.law.missouri.edu/mlr/vol41/iss2/167Kell: Kell: Workmen's Compensation--Recovery Allowed for Neutral AssaultsPublished by University of Missouri School of Law Scholarship Repository, 1976

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Workmen\u27s Compensation--Recovery Allowed for Neutral Assaults--Recovery Denied for Personally-Motivated Assaults

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