By Jared S. Renfroe
Rigoberto Morales v. Boshwit Brothers, Inc.
Docket No. 2016-08-0876
State File No. 58695-2016
Filed March 22, 2017
The “street risk” doctrine evaluated: This case involves an injury sustained while an employee was working and was assaulted by a stranger.
The employee, Mr. Morales, worked as a groundskeeper for his employer, and this job required him to mow grass at an apartment complex in which the employee also lived. One day while mowing an area of grass near a public road, he was approached from behind by an unknown individual with a gun. The individual grabbed Mr. Morales and forced him into a nearby area of trees. When he tried to run, the assailant shot him twice. The assailant was never apprehended, and there was no apparent motive for the shooting.
After the expedited hearing, the trial court held that the employee presented sufficient evidence that he was likely to prevail at a hearing on the merits, pointing out that the assault was random and neutral as to his employment. The trial court held that the street risk doctrine did not apply, stating that the employer did not openly solicit the general public to visit its apartment complex as part of its business, and there was no proof that the general public visited the complex more frequently than any other neighborhood.
Additionally, the assailant did not single Mr. Morales out for assault because of his employment, nor was he indiscriminately exposed to dangers of the public by his employment. It further held that because he lived in the complex, he could have just as easily been assaulted while going about his personal business. The employer appealed, arguing that the trial court erred in holding that the street risk doctrine did not apply.
The Appeals Board started their analysis by discussing how injuries that occur while an employee is working and is assaulted are classified under Tennessee law. Three categories of assaults exist (1) assaults with an “inherent connection” to employment, such as disputes over performance, pay, or termination; (2) assaults stemming from “inherently private” disputes imported into the employment setting from the employee’s domestic or private life and not exacerbated by the employment; and (3) assaults resulting from a “neutral force,” such as random assaults on employees by individuals outside the employment relationship.
This case clearly falls under the third category of assaults, and therefore whether or not it is compensable depends on the facts and circumstances of the employment.
The Appeals Board held that the preponderance of the evidence at the expedited hearing supported a finding that the employee was likely to prevail at a hearing on the merits in showing that his injuries arose primarily out of and in the course and scope of his employment pursuant to the street risk doctrine. It noted that the Supreme Court’s Special Workers’ Compensation Appeals Panel had applied the street risk doctrine in cases in which the employee was indiscriminately exposed to the public in the course of his or her duties.
In this case, the property manager admitted that anyone can drive in or out of the roads that either cross through or around the property. Furthermore, the Appeals Board explained that Mr. Morales was more vulnerable than an ordinary member of the public because he was operating a lawnmower, which required his attention to be focused on the terrain directly in front of him, hampered his senses, and impaired his ability to remain alert, making him more vulnerable to a random assault.
Furthermore, the Appeals Board noted that the public was invited to the property for a variety of reasons and had unrestricted access to the common areas of the property, creating “risks of the street” in and around the property. Importantly, the Appeals Board held that the street risk doctrine does not conflict with the court’s obligation to construe the law fairly and impartially, and thus, the doctrine survives the reforms to the Workers’ Compensation Act.
Jared S. Renfroe is an attorney for Spicer Rudstrom PLLC. He focuses his legal practice on litigation throughout Tennessee. He concentrates primarily on premises liability, business and commercial representation, employment practices litigation, professional liability, insurance defense, and workers’ compensation.
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