8.3 INJURIES CAUSED BY FELLOW EMPLOYEES OR THIRD PARTIES
8.301 In General. Section 65.2-307 of the Virginia Code has traditionally been construed to prohibit an action at common law by an employee who has been injured by a fellow employee. 152 However, if the injury sustained by the employee did not result from an "accident arising out of or in the course of employment" under section 65.2-101 of the Virginia Code, the employee may not be prohibited from bringing a common law action against a fellow employee or an employer. The exclusivity provisions of the Act are being slowly eroded as specific exceptions are carved out allowing these common law actions. The courts and the legislature have been particularly concerned with whether injuries caused by assault, sexual assault, sexual harassment, defamation, and intentional infliction of emotional distress fall within the exclusivity provisions of the Act.
8.302 Intentional and Negligent Infliction of Emotional Distress, Defamation, and Sexual Harassment. Where the employee files a cause of action alleging intentional infliction of emotional distress, negligent infliction of emotional distress, defamation, or sexual harassment, the courts have concentrated on whether the employee has suffered an injury by accident. "Injury by accident" is defined as an identifiable incident or sudden precipitating event that results in an obvious sudden mechanical or structural change in the body. 153 Where an employee's motion for judgment alleges gradually incurred injuries resulting from tortious behavior of a fellow employee or an employer, the courts have held that the exclusivity provisions of the Act do not prohibit the action at law, since there is no "injury by accident."
[Page 589]
In Middlekauff v. Allstate Insurance Co., 154 an employee sued a fellow employee and her employer, alleging intentional infliction of emotional distress in the form of a pattern of harassment, verbal abuse, and humiliation resulting in medical treatment for emotional problems. The trial court sustained the employer's plea in bar, finding that the employee's action was barred by the exclusivity provisions of the Act. The Supreme Court reversed, finding that there was no identifiable incident or event that resulted in an obvious sudden mechanical or structural change. The emotional problems alleged by the employee were found to be gradually incurred injuries and not injuries by accident. The Supreme Court likened the emotional problems to repetitive motion injuries seen in Merillat Industries v. Parks. 155
Similarly, the Supreme Court held in Lichtman v. Knouf 156 that an employee's alleged psychological and psychiatric injuries resulting from harassment from fellow employees were not injuries by accident and, therefore, did not prevent the employee from pursuing her action for intentional infliction of emotional distress. 157 In Lichtman, the Supreme Court overruled Haddon v. Metropolitan Life Insurance Co. 158 to the extent that it placed gradually incurred injuries within the definition of injury by accident. Haddon determined that an intentional act by a fellow employee could be an "accident" under the Act.
The Supreme Court has also dealt with the issue of whether recovery of damages resulting from defamation in a civil suit is barred by the exclusive jurisdiction of the Act. In Williams v. Garraghty, 159 the court ruled that damages for pain and suffering, humiliation, embarrassment, and mental distress as a result of defamatory statements were gradually incurred damages and did not constitute an injury by accident.
In the area of sexual harassment, section 65.2-301(C) of the Virginia Code specifically states that the Act neither creates a remedy for sexual harassment nor bars any action at law that might otherwise exist for an
[Page 590]
employee who is sexually harassed. Even in the absence of this section, injuries resulting from sexual harassment appear to fit into the category of gradually incurred injuries.
8.303 Assault.
A. In General. Where an employee is assaulted by a fellow employee or by a third party and files a common law action against the fellow employee or the employer, the inquiry is whether the assault "arose out of" the injured employee's employment. If the assault did arise out of the employment, the employee is barred from bringing suit by the exclusivity provisions of the Act.
The "actual risk" test is used to determine whether the employee's injury followed as a natural incident of the work. The injury must have its origin in a risk connected with the employment and must have flowed from that source as a rational consequence. If the injury comes from a hazard to which the employee would have been equally exposed apart from the employment, or if an assault is personal to the employee and not directed against the employee as an employee or because of his or her employment, the injury does not arise out of the employment.
B. "Arising Out Of" Employment. In Plummer v. Landmark Communications, Inc., 160 an employee who was shot while waiting to collect her newspapers at a drop-off site sued her employer, alleging that the employer was negligent for failing to provide a safe workplace. The Supreme Court upheld the trial court's granting of the employer's plea in bar, stating that the employee's only remedy was under the Act. In reaching this decision, the Supreme Court found that the allegations in the employee's motion for judgment showed that the probability of an assault upon the employee was augmented by the peculiar character of the employee's job or the environment in which she worked.
In Southland Corp. v. Gray, 161 the Court of Appeals similarly found that an employee who was assaulted while making a bank deposit suffered an injury arising out of her employment. The court found that it was clear from the employer's requirement that no deposits be made after 5:00
[Page 591]
p.m. that the employer considered the making of its deposits to involve risks to which others were not equally exposed.
A similar finding was made in Roberson v. Whetsell, 162 in which a building maintenance man was fatally hit by a stray bullet while driving through a known crime-ridden area. The Court of Appeals affirmed the Commission's decision that the employee's employment exposed him to a greater risk of assault and that his injury arose out of the employment.
In Louisa County Public Schools v. Bradley, 163 a custodian was hit by a bullet while discarding school trash in an outside trash bin. The Court of Appeals affirmed the Commission's decision that the employee's employment exposed him to a greater risk of injury from gunfire, as gunshots fired by hunters were prevalent around the school. His injury arose out of his employment, and, therefore, he was entitled to benefits under the Act.
In Smithfield Packing Co. v. Carlton, 164 the claimant, while operating a tractor-trailer for his employer, drove partially into the left lane of the roadway in order to make a wide right turn. A motorcycle was approaching the tractor-trailer at the time of this turn. The motorcycle then passed the tractor-trailer and the driver of the motorcycle stopped, got off his motorcycle, and began yelling at the claimant. The driver of the motorcycle pulled the claimant from the truck, and the two began to fight. As the claimant attempted to get up, the truck rolled over his foot, resulting in injury for which he claimed workers' compensation benefits. The Court of Appeals affirmed the Commission's decision that the claimant's injury arose out of his employment. The attack was triggered by the claimant's need to occupy part of two lanes...
