Present: Hassell, C.J., Keenan, Koontz, Kinser, Lemons, and
Agee, JJ., and Russell, S.J.
FRED HILTON, ADMINISTRATOR
OF THE ESTATE OF COURTNEY
LEIGHANN HILTON RHOTON, DECEASED
OPINION BY
v. Record No. 070091 SENIOR JUSTICE CHARLES S. RUSSELL
January 11, 2008
JOSHUA PHILLIP MARTIN, ET AL.
FROM THE CIRCUIT COURT OF RUSSELL COUNTY
Michael L. Moore, Judge
This action to recover damages for personal injury and
resulting death arose from an assault on the victim by a
fellow employee "in the course of" their mutual employment.
The sole question on appeal is whether the trial court erred
in dismissing the plaintiff’s case on the ground that it
involved an "injury arising out of" her employment and
therefore that the Virginia Workers' Compensation Act, Code
§§ 65.2-100 et seq. (the Act), provided the exclusive remedy
for the plaintiff’s claims.
Facts and Proceedings
The material facts are undisputed. On June 1, 2005,
Courtney Leighann Hilton Rhoton (Courtney), an emergency
medical services provider, was seated on the passenger side of
the front seat of an ambulance owned by Highlands Ambulance
Service, Inc. (Highlands) while it was traveling on the
highway. Seated beside her was the driver, Michael V.
Coleman. Joshua Philip Martin was riding in the rear of the
ambulance. Coleman and Martin were both emergency medical
technicians and all three occupants of the ambulance were
employees of Highlands. At the time in question, they were
returning in the ambulance to Highlands’ office after lunch.
The plaintiff alleged that Martin had a reputation as a
“kid in an adult’s body,” that he had a tendency to “harass
his female co-workers” and that he “exhibited childish and
immature behavior.” As the ambulance neared Highlands’
office, Martin turned on the power to a manual cardiac
defibrillator that was in the rear of the ambulance, adjusted
its energy to 150 joules, and picked up the defibrillator
paddles. With the paddles in his hands, he turned toward the
front of the ambulance and told Courtney, “I’m going to get
you.” Courtney screamed, “Get those away from me,” and pushed
Martin back. He turned away from her and appeared to be
replacing the paddles in the unit. Suddenly, he again came
toward her, striking Courtney with the paddles on the left
shoulder and left breast, while simultaneously activating
them. Courtney screamed, “[h]e shocked me,” and appeared to
be having a seizure.
Coleman called his office to have emergency treatment
available and drove directly there. Greta Caudill, a licensed
paramedic employed by Highlands, transferred Courtney to
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another ambulance and transported her to a hospital, assessing
Courtney’s condition as “altered state of consciousness,
cardiac arrest, respiratory arrest and electrocution.”
Courtney never regained consciousness and died on June 4, 2005
of “electrocution and cardiac arrest caused by being hit with
a charged defibrillator.” Burn marks were present at the
points where the defibrillator paddles had made contact with
her body.
Fred Hilton, Courtney’s father, qualified as
administrator of her estate and brought this action against
Martin, Highlands and Greta Caudill. The complaint included
counts for assault and battery against Martin and Highlands,
medical malpractice against Greta Caudill and Highlands, and
negligent hiring and negligent retention against Highlands.
The defendants filed pleas in bar, asserting that the
plaintiff’s sole remedy was provided by the Act. The parties
submitted the case to the trial court on the pleadings,
depositions and arguments of counsel. The court, by letter
opinion, ruled that the “accident” arose out of and in the
course of the employment and that the plaintiff’s exclusive
remedy was as provided by the Act. The court then entered an
order sustaining the pleas in bar as to all counts1 and
1
The Administrator argued that the medical malpractice
claim was not covered by the Act, citing our decision in
3
dismissed the complaint. We awarded the Administrator an
appeal.
Analysis
A plea in bar presents a distinct issue of fact which, if
proven, creates a bar to the plaintiff’s right of recovery.
The moving party has the burden of proof on that issue.
Weichert Co. of Virginia v. First Commercial Bank, 246 Va.
108, 109 n.*, 431 S.E.2d 308, 309 n.* (1993). In this appeal,
we are presented solely with a question of law concerning the
trial court’s application of the law to essentially undisputed
facts. Therefore, we apply a de novo standard of review.
Janvier v. Arminio, 272 Va. 353, 363, 634 S.E.2d 754, 759
(2006).
An “injury” falls within the scope of the Act only if it
results from an “accident” and arises out of and in the course
of the injured person’s employment. Code § 65.2-101. If the
injury meets those tests, the rights provided by the Act are
the sole remedies for the injury, to the exclusion of any
other rights and remedies “at common law or otherwise, on
account of such injury, loss of service or death.” Code
Fauver v. Bell, 192 Va. 518, 65 S.E.2d 575 (1951). The trial
court held that case inapplicable because the party charged
with malpractice here was a co-worker. Because of the view we
take of the applicability of the Act under the facts of this
case, we do not reach that question.
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§ 65.2-307. To the extent that an employee’s injury does not
meet the statutory tests for coverage under the Act, the
employee’s common-law remedies are preserved unimpaired.
Butler v. Southern States Cooperative, Inc., 270 Va. 459, 465,
620 S.E.2d 768, 772 (2005).
Here, it is undisputed that Courtney’s fatal injury arose
in the course of her employment. Therefore, the sole question
before us on appeal is whether the circuit court erred in
finding from the undisputed facts that her injury also was one
“arising out of” her employment. In considering the “arising
out of” prong, we do not apply the “positional risk” test,
whereby simply sustaining an injury at work is sufficient to
establish compensability. Rather, we adhere to the “actual
risk” test, under which the injury comes within the Act only
if there is a causal connection between the employee’s injury
and the conditions under which the employer requires the work
to be done. Id.
We have considered a number of cases involving assaults
upon employees2 and it is unnecessary to revisit them in
2
See e.g., Reamer v. National Service Industries, 237 Va.
466, 471, 377 S.E.2d 627, 630 (1989); Metcalf v. A. M. Express
Moving Systems, Inc., 230 Va. 464, 470, 339 S.E.2d 177, 181
(1986); City of Richmond v. Braxton, 230 Va. 161, 165, 335
S.E.2d 259, 262 (1985); see also Hopson v. Hungerford Coal
Co., 187 Va. 299, 305-06, 46 S.E.2d 392, 395 (1948); A. N.
Campbell & Co. v. Messenger, 171 Va. 374, 377-78, 199 S.E.
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detail. All adhere to a common principle: “If the assault is
personal to the employee and not directed against him as an
employee or because of his employment, the [resulting] injury
does not arise out of the employment.” Richmond Newspapers v.
Hazelwood, 249 Va. 369, 373, 457 S.E.2d 56, 58 (1995)
(citations omitted). That principle controls the present
case.
It is immaterial whether the assailant’s subjective
motivation is playful, amorous, vindictive, or hostile. An
injury resulting from an assault arises out of the injured
person's employment when it is directed at the victim as an
employee.
Such an injury also arises out of the employment when the
conditions under which the employer requires the work to be
done are a contributing cause of the injury. Therefore, the
assailant’s unauthorized use of a tool that happened to be
available at the workplace is immaterial. Unauthorized use of
the employer's equipment is not probative on the question
whether the employer's workplace requirements were a
contributing cause of the injury.
The evidence in the present case clearly establishes that
Martin’s assault had no relationship with Courtney’s status as
511, 513 (1938); Continental Life Ins. Co. v. Gough, 161 Va.
755, 759-60, 172 S.E. 264, 266 (1934).
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an employee. Whether intended as flirtatious, merely playful,
or as harassment, it was purely personal. Further, the
employer’s workplace requirements had no causal connection
with the risk of injury by assault. Martin's decision to use
the employer's equipment in assaulting a fellow employee was
entirely his own and unconnected with the conditions of the
employment. Therefore, the injury resulting from the assault
did not arise out of the employment.
Conclusion
Because the circuit court erred in sustaining the plea in
bar, we will reverse the judgment and remand the case for
further proceedings consistent with this opinion.
Reversed and remanded.
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