City of Richmond v. Braxton

• Decision Date: 11 October 1985
• Docket Number: No. 841712,841712
• Citation: City of Richmond v. Braxton, 230 Va. 161, 335 S.E.2d 259 (1985)
• Parties: , 52 A.L.R.4th 725 CITY OF RICHMOND v. Vernell G. BRAXTON. Record
• Court: Virginia Supreme Court

Page 259

335 S.E.2d 259

230 Va. 161, 52 A.L.R.4th 725

CITY OF RICHMOND v.Vernell G. BRAXTON.

Record No. 841712.

Supreme Court of Virginia.

Oct. 11, 1985.

Reginald M. Barley, Senior Asst. City Atty., Richmond, on brief, for appellant.

Hugh T. Antrim, Richmond, (Thompson & McMullan, Richmond, on brief), for appellee.

Present: All the Justices.

CARRICO, Chief Justice.

This is a workers' compensation case involving a sexual assault resulting in injury to the claimant, Vernell G. Braxton.It is conceded that the injury arose in the course of the claimant's employment with the City of Richmond.The question for decision is whether the injury also arose out of the employment.The two elements, an injury arising out of and in the course of the employment, must concur to produce a compensable claim.R & T Investments v. Johns, 228 Va. 249, 252, 321 S.E.2d 287, 289(1984).

The record shows that on October 23, 1981, the claimant was employed by the City as a ticket seller in the box office of the Mosque, a municipally owned theater facility.The claimant's immediate supervisor was Raymond E. McMullin, and he in turn was supervised by David Carmen Barefoot, manager of the Mosque.

On the afternoon of October 23, the claimant and a female co-worker were engaged in selling tickets at the box office.Sometime before four o'clock, McMullin told the co-worker she could leave early.A short time later, McMullin told the claimantshe could also leave ahead of time.

The claimant went to the rear of the box office to make a telephone call.While she was making the call, McMullin grabbed her and began fondling her breasts.The episode was interrupted when a customer appeared at the box office window.McMullin waited on the customer and then attempted to grab the claimant again, but she broke away and ran out of the box office.

McMullin had an office adjoining the box office.He subscribed to Playboy magazine and had the monthly issues delivered to his office, where he displayed them openly along with other sexually oriented materials which the claimant considered "pornographic."McMullin regularly discussed sexual topics with the other female employee in the box office and showed her pictures in Playboy.

The claimant did not complain to Barefoot, McMullin's supervisor, about either the "pornographic literature" or the sexual assault upon her.Barefoot admitted knowing that McMullin received Playboy at the office, and the claimant testified Barefoot also knew that McMullin's "collection" was "not only maintained but on public display" as well.

In its written opinion, the Commission noted that pursuant to Code§ 65.1-23.1, ^*"certain sexual abuses are presumed to be the result of employment conditions where the nature of such employment substantially increases the risk of such assault and damages compensable under the [Workers' Compensation] Act are shown to have resulted."The Commission stated, however, that, because no claim was made pursuant to Code§ 65.1-23.1, no statutory presumption existed and it was the claimant's burden "to prove that her employment conditions increased the risk of assault."

The Commission, with Chairman James dissenting, then proceeded to find that McMullin "engaged in activities and conversations at the employment site which clearly exhibited a proclivity to engage in aberrant behavior with an emphasis on sexual themes."The Commission found further that "the risk of assault to the claimant was increased by the continued presence of McMullin on the scene, and ... that the City had adequate notice through its representative, Barefoot, of the conditions created."Hence, the majority concluded, "the management of the business, or lack of it, permitted an exaggerated risk to become part of day-to-day activity in the workplace and, therefore, the risk was sufficiently connected with the business and not independent of it."

When we review an award of the Industrial Commission, its findings of fact, if supported by credible evidence, are conclusive and binding upon us.Code§ 65.1-98;Conner v. Bragg, 203 Va. 204, 206, 123 S.E.2d 393, 395(1962).A finding, however, that an injury arose out of and in the course of employment is a mixed finding of law and fact and is properly reviewable by this Court.Id. at 207, 123 S.E.2d at 395.

As noted at the outset, the question here is whether the claimant's injury arose out of her employment.In R & T Investments v. Johns, we stated:

An accident arises out of the employment if there is a causal connection between the claimant's injury and the conditions under which the employer requires the work to be performed.In re McNicol, 215 Mass. 497, 499, 102 N.E. 697, 697(1913).Quoting In re McNicol, we have said: " 'Under this test, if the injury...