Tolbert v. Martin Marietta Corp., Civ. A. No. 83-C-1465.

• Decision Date: 15 November 1985
• Docket Number: Civ. A. No. 83-C-1465.
• Citation: 621 F. Supp. 1099
• Parties: Deborah S. TOLBERT, Plaintiff, v. MARTIN MARIETTA CORPORATION, Defendant.
• Court: U.S. District Court — District of Colorado

621 F. Supp. 1099

Deborah S. TOLBERT, Plaintiff, v. MARTIN MARIETTA CORPORATION, Defendant.

Civ. A. No. 83-C-1465.

United States District Court, D. Colorado.

November 15, 1985.

Jack Wesoky, Englewood, Colo., for plaintiff.

John Webb, Denver, Colo., for defendant.

MEMORANDUM OPINION AND ORDER

CARRIGAN, District Judge.

The plaintiff, a secretary at Martin Marietta Aerospace, while on her way to lunch within the facility, was assaulted and raped by Arthur Martinez, a Martin Marietta janitor. She has sued Martin Marietta, alleging that it negligently hired the assailant, and negligently failed to make its premises reasonably safe for employees. Plaintiff claims that Martin Marietta knew or should have known that Martinez had a record of past behavior indicating that he might assault or rape persons on its premises. Jurisdiction is grounded on diversity of citizenship. 28 U.S.C. § 1332.

Martin Marietta previously filed a motion to dismiss on the ground that worker's compensation is the plaintiff's exclusive remedy. I denied that motion because there were factual issues to be resolved before it could be decided. Discovery now has been conducted, and Martin Marietta has filed a motion for summary judgment asserting the same ground. Plaintiff has not contended that there are disputed issues of material fact nor have I discovered any. The case, therefore, is ripe for resolution of the summary judgment motion.

The sole issue is whether the Colorado Workmen's Compensation Act ("the Act"), Colo.Rev.Stat. 8-40-101 et seq. (1973 and 1984 Cum.Supp.), covers the plaintiff's injury. If it does, worker's compensation is her exclusive remedy and this tort action is barred. Colo.Rev.Stat. 8-42-102 (1974 Cum.Supp.). Plaintiff asserts that her injury is not covered by worker's compensation, presumably because she expects that a tort action would yield a larger recovery. Martin Marietta, on the other hand, apparently is willing to pay the worker's compensation award to avoid risking a large tort verdict.

Whether worker's compensation 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 thus the tort remedy is abolished, if the statute's list of conditions are all met. Thus, worker's compensation applies:

"(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." Colo.Rev. Stat. 8-52-102 (1974 Cum.Supp.) (Emphasis added.)

Here it is undisputed that condition (a) is met, and condition (b) does not appear to be seriously disputed. Thus the issue is whether the injury "arose out of and in the course of" the plaintiff's employment within the meaning of subsection (c). Although the injury did arise in the course of her employment, the plaintiff contends that it did not "arise out of" the employment. The "arising out of" condition creates a prerequisite that there be some causal relationship between the employment and the injury.

Courts have interpreted the "arising out of" language in a number of different ways and have developed different tests of causality. Because the injury occurred in Colorado and the Colorado Workmen's Compensation Act is to be construed, the Colorado test of causation must be applied in this diversity case.

Unfortunately, Colorado courts have not consistently applied any single test to determine whether an assault by a co-employee arises out of the employment relationship. The defendant argues that positional-risk analysis applies to categorize the case as one covered by compensation. The positional-risk doctrine has been defined thus by a leading authority:

"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, § 650 at p. 3-5.

Invoking this rule, Martin Marietta asserts that the plaintiff's injury is covered by Colorado worker's compensation because: (1) her employment placed her within the building where she was injured, and (2) the assault was a "neutral" force within the above definition.

Defendant further relies on Industrial Commission v. Ernest Irvine, Inc., 72 Colo. 573, 212 P. 829 (1923), a case in which a car salesman was mistakenly shot and killed by a friend as he was parking a "demonstrator" car belonging to his employer in his friend's garage in order to protect the car from freezing. The Colorado Supreme Court there upheld an award of worker's compensation, affirming the Commission's conclusion that the injury "arose out of" the employment because the employment subjected the decedent to a risk not common to the general public. In Ernest Irvine, Inc., however, the result turned on the Commission's specific findings that "the decedent was killed while performing (job) duties ..." and that "he was shot while attempting to take care of his employer's property." Id. 212 P.2d at 831. In contrast, the rape here was not causally related to any employment duties being performed by the plaintiff when she was assaulted, for she was performing none.

Ernest Irvine supra, applied the "increased-risk" test of causality. Under the increased-risk test, compensation is awarded only if the employment increases the worker's risk of injury above that to which the general public is exposed. See 1 Larson, Workmen's Compensation Law, § 6.30 at p. 3-4. Thus, in Ernest Irvine, Inc. the Colorado court held,

"The hazard out of which arose the injury which caused the death ... was not common to the general public, the injury would not have occurred but for his employment, and the act being performed by him was within the scope of his duties. He was doing the duty which he was employed to perform, hence received the injury `in the course of,' the employment; a reasonable person familiar with the entire transaction on that evening would have contemplated the result as probable from the exposure occasioned by the nature of the employment, hence the injury `arose out of' the employment."

It is apparent that if Colorado presently applies the "increased risk" analysis, the instant plaintiff would not be covered by worker's compensation. Certainly her employment as a secretary within a secured defense facility would not be expected to increase her risk of sexual assault above that to which women in the general public are exposed.

Colorado first applied "positional-risk" analysis four years after Ernest Irvine, Inc. was decided. Aetna Life Insurance v. Industrial Commission, 81 Colo. 233, 254 P. 995 (1927).

In Aetna Life the court upheld an award of compensation to a farmhand who was struck by...