Richmond Newspapers, Inc. v. Hazelwood, 940913

• Decision Date: 21 April 1995
• Docket Number: No. 940913,940913
• Citation: 249 Va. 369,457 S.E.2d 56
• Parties: RICHMOND NEWSPAPERS, INC. v. Rickey A. HAZELWOOD. Record
• Court: Virginia Supreme Court

Page 56

457 S.E.2d 56

249 Va. 369

RICHMOND NEWSPAPERS, INC. v. Rickey A. HAZELWOOD.

Record No. 940913.

Supreme Court of Virginia.

April 21, 1995.

Alexander Wellford (Geunet Beshah-Tapscott, Christian, Barton, Epps, Brent & Chappell, on briefs), Richmond, for appellant.

Carolyn P. Carpenter (Eileen N. Wagner, Carpenter, Woodward & Wagner, on brief), Richmond, for appellee.

Present: All the Justices.

CARRICO, Chief Justice.

The sole question in this case is whether an employee's claim against his employer, asserted in a common law action for injury resulting from goosing by a fellow employee, ¹ is barred by the exclusivity provision contained in Code § 65.1-40, part of the Virginia Workers' Compensation Act (the Act). ² Answering the question in the negative, we will affirm the trial court's approval of a jury verdict favorable to the employee.

In a two-count motion for judgment, the employee, Rickey A. Hazelwood (Hazelwood), sought both compensatory and punitive damages against his employer, Richmond Newspapers, Inc. (Richmond Newspapers). Count I alleged a claim based upon several instances of assault and battery committed upon Hazelwood by J. Bruce Mabe, a fellow employee not named as a party defendant. Count II alleged a claim based upon Richmond Newspapers' negligence in its hiring and retention of "an unfit person in the work place."

Richmond Newspapers filed grounds of defense denying the allegations of the motion for judgment. Richmond Newspapers also filed a motion for summary judgment on the ground that Hazelwood's exclusive remedy was under the Act. After argument, the trial court denied the motion for summary judgment.

The record shows that Hazelwood was employed as a journeyman pressman in the pressroom of Richmond Newspapers. Mabe was assistant night foreman and Hazelwood's immediate supervisor. Hazelwood testified that on five different occasions in the course of his employment, Mabe grabbed him in the buttocks or in the genital area and that, on one occasion, occurring September 14, 1990, Mabe's finger penetrated Hazelwood's body.

Hazelwood testified further that, as a result of the September 14 incident, he was "embarrassed and humiliated," his "hair was standing up," his "chest felt really prickly," and his "knees were rubbery." He also testified that he suffered the same reaction on the other occasions when Mabe goosed him.

While the goosing incidents caused Hazelwood no physical injury, they caused him emotional problems and brought back the memory of a sexual assault he had experienced during childhood. As a result, Hazelwood suffered depression and post-traumatic stress disorder, for which he sought psychological treatment.

Mabe admitted the goosing incident of September 14, 1990. On the strength of this admission, the trial court instructed the jury that, while acting as an employee of Richmond Newspapers and within the scope of his employment, Mabe committed a battery upon Hazelwood on September 14, 1990. The court left it to the jury to determine whether Mabe committed other batteries upon Hazelwood.

The jury returned a verdict in favor of Hazelwood for $40,000 in compensatory damages and $100,000 in punitive damages. Richmond Newspapers moved to set the verdict aside on the ground Hazelwood's exclusive remedy was under the Act. The trial court denied the motion and entered judgment on the verdict.

In denying the motion to set aside the verdict, the trial court held that Hazelwood's injury arose out of and in the course of his employment. The court also held, however, that Hazelwood did not suffer an injury by accident within the meaning of the Act and, therefore, that Hazelwood's claim was not barred by the exclusivity provision of the Act.

In its assignments of error, Richmond Newspapers challenges the trial court's ruling that Hazelwood did not suffer an injury by accident. In an assignment of cross-error, Hazelwood charges that the trial court erred in holding his injury arose out of his employment.

An injury is subject to the exclusivity provision of the Act if it is the result of an accident and arises out of and in the course of the employment. Code § 65.1-7 (now § 65.2-101); see Baggett & Meador Cos. v. Dillon, 219 Va. 633, 636, 248 S.E.2d 819, 821 (1978). In the present case, we will assume, without deciding, that Hazelwood's injury was the result of an accident. It is conceded that the injury arose in the course of the employment. Hence, the dispositive question becomes: Did the injury arise out of the employment? As indicated previously, this is the question presented by Hazelwood's assignment of cross-error.

On brief, Richmond Newspapers notes that, in determining whether an injury arises out of the employment, this Court applies the "actual risk" test and frequently quotes from Bradshaw v. Aronovitch, 170 Va. 329, 196 S.E. 684 (1938). There, it is stated that

if the injury can be seen to have followed as a natural incident of the work and to have been contemplated by a reasonable person familiar with the whole situation as a result of the exposure occasioned by the nature of the employment, then it arises 'out of' the employment. But [the applicable test] excludes an injury which cannot fairly be traced to the employment as a contributing proximate cause and which comes from a hazard to which the workmen would have been equally exposed apart from the employment. The causative danger must be peculiar to the work and not common to the neighborhood. It must be incidental to the character of the business and not independent of the relation of master and servant. It need not have been foreseen or ... expected, but after the event it must appear to have had its origin in a risk connected with the employment, and to have flowed from that source as a rational consequence.

170 Va. at 335, 196 S.E. at 686 (quoting In re McNicol, 215 Mass. 497, 102 N.E. 697, 697 (1913)) (emphasis added).

At trial, in an effort to establish that goosing was an actual risk of Hazelwood's employment, Richmond Newspapers submitted evidence showing that the practice of goosing is prevalent in its pressroom, that the practice has existed for more than forty years, and that it exists in the pressrooms of newspapers in other parts of the country. Richmond Newspapers points out that, in addition to Mabe, "the gooser," twelve pressmen testified "about the risk of being goosed in the ... pressroom."

On appeal, Richmond Newspapers argues that goosing "would appear to be an activity engaged in by pressmen, perhaps as a means to break the tension of the 'heat of battle' created by the job." Because the evidence shows that the activity was limited to the pressroom itself, Richmond Newspapers maintains that the activity was " 'peculiar to the work and not common to the neighborhood.' " Hence, Richmond Newspapers concludes, the trial court correctly held that " 'the risk to a pressman such as [Hazelwood] of being goosed in the pressroom was an actual risk of his employment' " and, therefore, that his injury arose out of his employment.

Richmond Newspapers, however, fails to respond to an important point of law made on brief by the plaintiff, a point that is well supported by several decisions of this Court involving assaults upon employees. If the assault is personal to the employee and not directed against him as an employee...