COURT OF APPEALS DECISION DATED AND RELEASED DECEMBER 3, 1996 |
NOTICE |
A party may file with the
Supreme Court a petition to review an adverse decision by the Court of
Appeals. See § 808.10 and
Rule 809.62, Stats. |
This opinion is subject to
further editing. If published, the
official version will appear in the bound volume of the Official Reports. |
No. 96-1822-FT
STATE
OF WISCONSIN IN COURT OF
APPEALS
DISTRICT I
PATRICIA M. MORRIS
(Deceased),
KIM WALCZAK and ROB
MORRIS,
individuals,
Plaintiffs-Appellants,
v.
LABOR AND INDUSTRY
REVIEW COMMISSION
and STATE OF WISCONSIN
and GREAT
ATLANTIC and PACIFIC
TEA COMPANY,
d/b/a KOHL'S FOOD
STORES,
Defendants-Respondents,
KOHL'S FOODS, INC.,
CRAWFORD and COMPANY
and
CONTINENTAL INSURANCE
COMPANY,
Defendants.
APPEAL from an order of
the circuit court for Milwaukee County:
MICHAEL J. BARRON, Judge. Affirmed.
Before Wedemeyer, P.J.,
Fine and Schudson, JJ.
PER
CURIAM. Kim Walczak and Rob Morris, the children of Patricia
Morris, deceased, appeal from the trial court's order affirming a decision of
the Labor and Industry Review Commission.
The issue is whether Patricia Morris's death arose out of her
employment. Pursuant to this court's
order dated July 23, 1996, this case was submitted to the court on the
expedited appeals calendar. See Rule 809.17, Stats. Upon review of
the briefs and the record, we affirm.
The facts are
undisputed. Morris was employed as a
delicatessen manager at Kohl's Food Store.
She was killed by her husband at the store in the employee
break room one morning about two hours after she arrived at work. Robert Morris located Patricia Morris in the
break room when directed there by a Kohl's employee. After entering the room, he talked briefly with his wife, shot
her in the head, and then shot himself.
Morris and her husband were separated at the time and she had previously
obtained a restraining order against him.
They are survived by their children, Kim Walczak and Robert Morris,
who were fifteen and thirteen years old at the time of the killing.
Ten years later, the
children filed an application for death benefits under the Workers'
Compensation Act. The hearing examiner
denied benefits to the children because, among other things, Patricia Morris's
death was the result of a purely personal problem and there was no showing that
Kohl's could have, or should have, protected her from her husband. The commission affirmed.[1]
For an accident to be
compensable under the Workers' Compensation Act, it must "arise out
of" employment. See
§ 102.03, Stats. To determine whether an accident
"arises out of the employment," Wisconsin courts have adopted the
positional risk doctrine. According to
that doctrine,
an accident arises out of the employment
when the connection between the employment and the accident is such that the
obligation or circumstances of the employment places the employee in the
particular place at the particular time when he is injured by a force which is
not solely personal to him.
Cutler-Hammer,
Inc. v. Industrial Comm'n, 5 Wis.2d 247, 253, 92 N.W.2d
824, 827 (1958). Stated differently,
an accident arises out of employment when
by reason of employment the employee is present at a place where he is injured
through the agency of a third person, an outside force, or the conditions of
the location of the employment constitut[e] a special zone of danger.
Id. at
253-54, 92 N.W.2d at 828.
Where an assault is
entirely personal, an employee may not be entitled to recover.
It is particularly important to keep
constantly in mind that the motivation of the assault, ... must not be
‘personal vengeance stemming from contact with the employee outside the
employment.' When it is clear that the
origin of the assault was purely private and personal, and that the
employment contributed nothing to the episode, whether by engendering or
exacerbating the quarrel or facilitating the assault, the assault should be
held noncompensable ....
Goranson
v. DILHR, 94 Wis.2d 537, 556-57, 289 N.W.2d 270, 279-80 (1980)
(emphasis added) (citation omitted).
There was credible and
substantial evidence to support the commission's determination that the work
environment at Kohl's Foods contributed nothing to the assault and that the
assault could have occurred at any time or place. Morris's employment did not place her in a position of peril,
like a teller working at a bank window or a person working in isolation. The work environment itself must be a
causative factor in the assault in order for the injury to be compensable under
the Worker's Compensation Act. Cf.
Applied Plastics, Inc. v. LIRC, 121 Wis.2d 271, 279, 359 N.W.2d
168, 172 (Ct. App. 1984) (death was compensable because victim was in a
"zone of special danger" due to his work because he was the target of
one who, like assailant, wished to extort money from the company); Allied Mfg., Inc. v. DILHR, 45
Wis.2d 563, 569, 173 N.W.2d 690, 693 (1970) (death was compensable because the
isolated environment in which the decedent was placed increased the risk of
attack and constituted a causative factor in the attack); Nash-Kelvinator Corp. v. Industrial
Comm'n, 266 Wis. 81, 86, 62 N.W.2d 567, 570 (1954) (an assault which
occurred in a factory was compensable because the claimant's presence in the
factory in association with other workmen involved exposure to the risk of
injury from the acts of those about him).
Although Morris was killed in the employee lounge, which had only one
exit, making it difficult for her to escape her husband's attack, there was
nothing about the work environment that increased the risk of attack or
made it a "zone of special danger."
The fact that the employee lounge had only one door is not enough,
absent some additional work-related hazard, to make it a potentially dangerous
work environment. The commission
reasonably concluded that the work environment itself did not contribute to the
murder.
Because the work
environment did not contribute to Morris's death, the commission properly
considered the motivation for the assault in making its decision. See Jenson v. Employers Mut.
Cas. Co., 161 Wis.2d 253, 271, 468 N.W.2d 1, 8 (1991) (where the work
environment is a causative factor in an assault, whether the motive is
connected to work is immaterial).
Morris had obtained a temporary restraining order against her husband
because of past acts of violence and threats of future violence. The commission found ample evidence that
Morris's death arose out of emotional problems and marital difficulties between
Morris and her estranged husband.
Because the assault arose from personal vengeance stemming from contact
with Morris outside her employment and the work environment did not contribute
to the episode, the murder is not compensable.
By the Court.—Order
affirmed.
This opinion will not be
published. See Rule 809.23(1)(b)5, Stats.