Question Submitted by the U.S. Court of Appeals for the Tenth Circuit, In re, 87SA127

• Decision Date: 20 June 1988
• Docket Number: No. 87SA127,87SA127
• Citation: 759 P.2d 17
• Parties: . Deborah S. TOLBERT, Plaintiff-Appellee, v. MARTIN MARIETTA CORPORATION, a Maryland corporation, Defendant-Appellant, and Arthur Benjamin Martinez, a/k/a A.B. Martinez, Third-Party Defendant. Supreme Court of Colorado, En Banc
• Court: Colorado Supreme Court

Page 17

759 P.2d 17

In re QUESTION SUBMITTED BY THE UNITED STATES COURT OF

APPEALS FOR THE TENTH CIRCUIT.

Deborah S. TOLBERT, Plaintiff-Appellee, v. MARTIN MARIETTA CORPORATION, a Maryland corporation,

Defendant-Appellant,

and

Arthur Benjamin Martinez, a/k/a A.B. Martinez, Third-Party Defendant.

No. 87SA127.

Supreme Court of Colorado,

En Banc.

June 20, 1988.

Feuer, Flossic & Kaplan, James A. Kaplan, and Jack M. Wesoky, Englewood, for plaintiff-appellee.

Holme Roberts & Owen and John R. Webb, Denver, for defendant-appellant.

VOLLACK, Justice.

In accordance with C.A.R. 21.1, the United States Court of Appeals for the Tenth Circuit has certified to the Supreme Court of Colorado a two-part question of law pertaining to a pending federal case:

Does the Workmen's Compensation Act of Colorado, sections 8-40-101 to 8-54-127, 3B C.R.S. (1986 & 1987 Supp.), provide an exclusive remedy for an employee against her employer:

(1) for injuries resulting from a sexual assault by a co-worker which was motivated by considerations neither personal to the injured employee nor distinctly associated with the employment; and

(2) when the employee has fixed hours and place of employment in a secure facility and the injury occurred while the employee was in her building of employment, but away from her work station, on her way to lunch in the employer's cafeteria?

This court has agreed to answer the interrogatory, and now responds to both parts of the question in the affirmative.

This question addresses the causal relationship between Martin Marietta's employment of the plaintiff-appellee, Deborah Tolbert, and the circumstances of the sexual assault against her. Our answers to the two-part question will determine whether the exclusivity provision ¹ of the Colorado Workmen's Compensation Act prohibits Tolbert's tort action against Martin Marietta, the defendant-appellant.

I.

In March 1983 Deborah Tolbert was employed by Martin Marietta as an entry level professional. Arthur Martinez was a janitor, a coemployee at Martin Marietta. Tolbert was on her way to lunch in the company cafeteria on the Martin Marietta premises when she was attacked and raped by Martinez. Tolbert also filed a tort action in federal district court, alleging that Martin Marietta had negligently hired Martinez and negligently failed to keep the premises reasonably safe.

Martin Marietta filed a motion for summary judgment in federal district court, raising section 8-52-102(1)(c), 3B C.R.S. (1986), of the Colorado Workmen's Compensation Act (Act) as a complete defense. In its motion, Martin Marietta asserted that worker's compensation is Tolbert's exclusive remedy and as a result, her tort action is barred. After concluding that the material facts were no longer in dispute, the United States District Court denied Martin Marietta's summary judgment motion in Tolbert v. Martin Marietta Corp., 621 F.Supp. 1099 (D.Colo.1985). The court did grant permission for Martin Marietta to file an interlocutory appeal with the Tenth Circuit Court of Appeals, pursuant to federal statute. ² The two-part question set out above was certified to the Colorado Supreme Court from the Tenth Circuit Court of Appeals.

II.

A.

The federal district court found that there were no disputed issues of material fact. Tolbert, 621 F.Supp. at 1100. The Workmen's Compensation Act provides:

8-52-102. Conditions of recovery.

(1) The right to the compensation provided for in articles 40 to 54 of this title, in lieu of any other liability to any person for any personal injury or death resulting therefrom, shall obtain in all cases where the following conditions occur:

(a) Where, at the time of the injury, both employer and employee are subject to the provisions of said articles and where the employer has complied with the provisions thereof regarding insurance;

(b) Where, at the time of the injury, the employee is performing service arising out of and in the course of his employment;

(c) Where the injury or death is proximately caused by an injury or occupational disease arising out of and in the course of his employment and is not intentionally self-inflicted.

3B C.R.S. (1986) (emphasis added). In ruling on Martin Marietta's motion for summary judgment, the federal district court held that it was "undisputed that condition (a) is met, and condition (b) does not appear to be seriously disputed." 621 F.Supp. at 1100. Thus, the narrow issue of law presented here is whether the injury suffered by Tolbert "arose out of and in the course of" her employment, thus meeting the third requirement, section 8-52-102(1)(c).

Our response to the two-part question will determine whether recovery under the Workmen's Compensation Act is Tolbert's exclusive remedy, thereby barring her tort action in negligence. "Recovery under the Act is meant to be exclusive and to preclude employee tort actions against an employer." Kandt v. Evans, 645 P.2d 1300, 1302 (Colo.1982); see Calderon v. Martin Marietta Corp., 675 F.Supp. 1279, 1280 (D.Colo.1987). If we conclude that Tolbert's injury is not compensable under the Act, then her tort action against Martin Marietta is not barred.

B.

The phrases "arising out of" and "in the course of" found in section 8-52-102(1)(c) are not synonymous, and a claimant must prove both requirements. Industrial Comm'n v. London & Lancashire Indem. Co., 135 Colo. 372, 376, 311 P.2d 705, 707 (1957). The parties do not dispute that this incident occurred "in the course of" Tolbert's employment with Martin Marietta, so "arising out of" is the phrase at issue here. ³ Tolbert, 621 F.Supp. at 1100.

An accident "arises out of" employment when there is a causal connection between the work conditions and the injury. Martin Marietta Corp. v. Faulk, 158 Colo. 441, 407 P.2d 348 (1965); State Comp. Ins. Fund v. Walter, 143 Colo. 549, 354 P.2d 591 (1960). For an injury to be compensable under the Act, there must be a sufficient nexus between the employment and the injury. Perry v. Crawford & Co., 677 P.2d 416 (Colo.App.1983). The determination of whether an employee's injuries arose out of an employment relationship depends largely on the facts presented in a particular case. Bennett v. Furr's Cafeterias, Inc., 549 F.Supp. 887, 890 (D.Colo.1982). "The totality of the circumstances must be examined in each case to see whether there is a sufficient nexus between the employment and the injury." City & County of Denver School Dist. No. 1 v. Industrial Comm'n, 196 Colo. 131, 133, 581 P.2d 1162, 1163 (1978); Perry, 677 P.2d at 418.

C.

This nexus or causality requirement is subject to more than one definition. As the federal district court stated, the phrase "arising out of" has been interpreted "in a number of different ways" in various jurisdictions which "have developed different tests of causality." Tolbert, 621 F.Supp. at 1100. The court also rested its analysis on the observation that "Colorado courts have not consistently applied any single test to determine whether an assault by a co-employee arises out of the employment relationship." Id. at 1101. The issue becomes what test or standard to apply to this "arising out of" language of the Act.

This court has most frequently used the positional-risk or "but for" standard to define the "arising out of" language. ⁴

An important and growing number of courts are accepting the full implications of the positional-risk test: An injury arises out of the employment if it would not have occurred but for the fact that the conditions and obligations of the employment placed claimant in the position where he was injured.... This theory supports compensation, for example, in cases of stray bullets, roving lunatics, and other situations in which the only connection of the employment with the injury is that its obligations placed the employee in the particular place at the particular time when he was injured by some neutral force, meaning by "neutral" neither personal to the claimant nor distinctly associated with the employment.

1 Larson, Workmen's Compensation Law § 6.50, at 3-6 (1985) (emphasis in original) (hereinafter 1 Larson); Aetna Life Ins. Co. v. Industrial Comm'n, 81 Colo. 233, 254 P. 95 (1927) (first application of the positional-risk doctrine in Colorado); see also London Guar. & Accident Co. v. McCoy, 97 Colo. 13, 45 P.2d 900 (1935); Kitchens v. Department of Labor & Employment, 29 Colo.App. 374, 486 P.2d 474 (1971). In Aetna, we used this definition of the positional-risk test:

[W]hen one in the course of his employment is reasonably required to be at a particular place at a particular time and there meets with an accident, although one which any other person then and there present would have met with irrespective of his employment, that accident is one "arising out of" the employment of the person so injured.

81 Colo. at 236, 254 P.2d at 996 (emphasis added). ⁵

If we conclude that the employee, under these facts, is eligible for compensation under the Act, then she is prohibited from maintaining a suit against the employer for alleged negligence by the employer related to an intentional assault by a coemployee. ⁶ "Cognizant of the Act's broad remedial objective, the Colorado courts have interpreted this standard of compensation to include injuries arising from the intentional acts of a co-employee, as long as the requisite degree of job relatedness is present." Bennett v. Furr's Cafeterias, Inc., 549 F.Supp. 887, 890 (D.Colo.1982) (footnote omitted). The positional-risk test, as applied by this court in the past, is the appropriate test in assessing the case before us now. The positional-risk test is formulated to assess whether there is a sufficient relationship between the employment and the injury to justify compensation under the Act. "Whether worker's compensation coverage is invoked as a defense by an employer, or as the basis of a claim by an employee, the test of applicability is the same. Compensation is to be awarded, and the tort...