Present: All the Justices
MICHELLE M. BUTLER
OPINION BY
v. Record No. 050022 JUSTICE LAWRENCE L. KOONTZ, JR.
November 4, 2005
SOUTHERN STATES
COOPERATIVE, INC., ET AL.
FROM THE CIRCUIT COURT OF LOUDOUN COUNTY
J. Howe Brown, Jr., Judge Designate
In this appeal, the dispositive issue is whether the
Circuit Court of Loudoun County (trial court) erred in
sustaining special pleas in bar to a motion for judgment filed
by an employee against her co-employee and employer on the
ground that the assault for which damages were sought was an
injury by accident that arose out of and in the course of the
employment. Based on the facts as alleged in the motion for
judgment, the trial court ruled that the employee’s common-law
action is barred by the exclusivity provision of the Workers’
Compensation Act provided by Code § 65.2-307, and that the
exceptions to that exclusivity provision provided by Code
§ 65.2-301 do not apply.
BACKGROUND
The trial court heard no evidence in support of the special
pleas in bar. Thus, we consider the allegations in the motion
for judgment to resolve the issue presented and take the facts
as alleged therein as true. See Safeway, Inc. v. DPI
Midatlantic, Inc., 270 Va. 285, 286 n.1, 619 S.E.2d 76, 77 n.1
(2005); Niese v. City of Alexandria, 264 Va. 230, 233, 564
S.E.2d 127, 129 (2002). The following recitation of the
pertinent facts adheres to this rule of appellate review.
In May 2000, Michelle M. Butler began working at the
Middleburg, Virginia retail store of Southern States
Cooperative, Inc. (Southern States), a business cooperative that
specializes in selling agricultural supplies. Butler’s
responsibilities included operating the cash register,
scheduling and making deliveries, opening and closing the store,
performing inventory checks, making flyers and pricing signs,
ordering supplies, filing and other general duties. Butler’s
immediate supervisor and manager of the store was Dan Virts.
In July 2003, Clarence W. Allen was employed by Southern
States to work at the Middleburg store as a delivery person.
Southern States was aware at the time it hired Allen that he had
been convicted of felony rape and had a felony parole violation
on his criminal record. Allen frequently made personal comments
to Butler, including comments that he wanted “to date” her and
that he “always got what he wanted.”
On August 11, 2003, owing to the heavy volume of business
that day, Butler was required to assist Allen in making a
delivery of feed to a customer. When Butler entered the cab of
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the delivery truck, she tucked her uniform shirt, which was
missing two buttons, into her pants. Butler was wearing a
t-shirt under her uniform shirt. Allen offered to fix Butler’s
shirt for her. When Butler declined, Allen told her that she
was “getting him all excited” and he pointed to a “bulge” in his
pants as proof of his excitement. Allen then ran his hand
through Butler’s hair, slowed down the truck, and leaned over
and licked Butler’s ear. Ultimately, Allen stopped the truck,
removed his seatbelt, leaned in, and grabbed Butler’s face with
his hands. He then attempted to kiss Butler on the lips,
holding onto her face the entire time. Butler was frightened
and protested. Allen told her, “well, you know what I want.”
Butler continued to pull away and resist until Allen ceased his
advances. During this incident Allen told Butler that “you just
don’t know me like that yet.”
Upon returning to the store, Butler continued to be
frightened and nervous and began to feel ill. She left the
store and walked to a nearby bank where her mother was employed.
On her mother’s advice, Butler reported the incident to the
police. Subsequently, as a result of his actions, Allen was
convicted of misdemeanor assault and battery pursuant to Code
§ 18.2-57(A).
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On April 29, 2004, Butler filed a motion for judgment in
the trial court against Southern States and Allen. Butler
sought to recover damages from Southern States under claims of
negligent hiring and retention of Allen, respondeat superior
liability for Allen’s assault and battery, and intentional
infliction of emotional distress. She sought damages from Allen
under claims of assault and battery and intentional infliction
of emotional distress.
Allen and Southern States filed grounds of defense denying
the allegations contained in Butler’s motion for judgment.
Southern States also filed a special plea in bar asserting that
the exclusivity provision of the Virginia Workers’ Compensation
Act, Code § 65.2-307, barred Butler’s claims because her alleged
injuries arose out of and in the course of her employment. Allen
also filed a similar special plea in bar.1
1
Southern States also filed a demurrer challenging the
claims for negligent hiring and retention and intentional
infliction of emotional distress. Allen also demurred to the
emotional distress claim. The trial court overruled the
demurrers. Southern States and Allen noted their objections to
this ruling on the final order. In its brief in opposition to
Butler’s petition for appeal, Southern States assigned cross-
error to the overruling of the demurrer with respect to the
emotional distress claim. Allen in his brief purported to adopt
Southern States argument on that issue, though he failed to make
an express assignment of cross-error. In the order awarding
Butler an appeal, this Court refused Southern States’ assignment
4
Butler filed two pre-argument briefs in the trial court
opposing the special pleas in bar. In the first brief, Butler
contended that the exclusivity provision of the Workers’
Compensation Act did not apply on the facts of her case because
Allen’s assault upon her was personal in nature and, thus, she
contended that her injury did not arise out of her employment with
Southern States. In the second brief, Butler also contended that
Code § 65.2-301 would have application on the facts of her case.
In relevant part, Code § 65.2-301 provides:
A. Any employee who, in the course of employment,
is sexually assaulted, as defined in §§ 18.2-61
[Rape], 18.2-67.1 [Forcible Sodomy], 18.2-67.3
[Aggravated Sexual Battery], or § 18.2-67.4 [Sexual
Battery], and promptly reports the assault to the
appropriate law-enforcement authority, where the
nature of such employment substantially increases the
risk of such assault, upon a proper showing of damages
compensable under this title, shall be deemed to have
suffered an injury arising out of the employment and
shall have a valid claim for workers’ compensation
benefits.
B. Notwithstanding the provisions of this title,
an employee who is sexually assaulted and can identify
the attacker may elect to pursue an action-at-law
against the attacker, even if the attacker is the
assaulted employee’s employer or co-employee, for full
damages resulting from such assault in lieu of
pursuing benefits under this title, and upon repayment
of any benefits received under this title.
of cross-error. Accordingly, the judgment of the trial court
overruling the demurrers is not at issue in this appeal and
remains undisturbed.
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On September 9, 2004, the trial court conducted a hearing on
the special pleas in bar. After hearing argument of counsel, the
trial court ruled from the bench that “[Code §] 65.2-301 has no
application to this case. This is not a sexual assault as defined
by those [criminal code sections] particularly mentioned [in the
statute.]” The trial court further ruled that “[t]his is a
classic example of a Workers’ Compensation Act situation.” Butler
sought leave of the trial court to file an amended motion for
judgment. The trial court denied the motion.
In a final order dated October 4, 2004, the trial court,
adopting by reference its ruling made during the September 9, 2004
hearing, sustained the special pleas in bar and dismissed Butler’s
motion for judgment with prejudice. We awarded Butler this
appeal.
DISCUSSION
Butler asserts error in the judgment of the trial court
sustaining the special pleas in bar on two grounds. First, she
contends that the trial court erred in finding that Allen’s
assault upon her is an injury by accident arising out of and in
the course of her employment bringing her cause of action within
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the ambit of the exclusivity provision of Code § 65.2-307.2
Second, she contends that even if her injury is otherwise
compensable under the Workers’ Compensation Act, the trial court
erred in finding that the statutory exceptions to Code § 65.2-
307 found in Code § 65.2-301 permitting an election of remedies
do not apply on the facts of this case. Because Butler’s first
contention is dispositive of the question whether the trial
court erred in sustaining the special pleas in bar, we confine
our discussion to that issue.3
Our resolution of the dispositive issue in this case is
guided by well-established principles such that a comprehensive
review and recitation of our numerous prior cases is
unnecessary. The Virginia Workers’ Compensation Act applies to
2
Code § 65.2-307(A) provides that:
The rights and remedies herein granted to an employee
when his employer and he have accepted the provisions
of this title respectively to pay and accept
compensation on account of injury or death by
accident shall exclude all other rights and remedies
of such employee, his personal representative,
parents, dependents or next of kin, at common law or
otherwise, on account of such injury, loss of service
or death.
3
Butler also assigned error to the trial court’s denial of
her motion for leave to file an amended motion for judgment. In
light of our resolution of the principal issue presented in this
appeal, the failure to permit the filing of the amended motion
for judgment is moot, and we need not address that issue.
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injuries by accident “arising out of and in the course of” an
individual’s employment. Code § 65.2-300. When an employee
sustains such an injury, the Act provides the sole and exclusive
remedy available against the employer. Rasnick v. The Pittston
Co., 237 Va. 658, 660, 379 S.E.2d 353, 354 (1989). To the
extent that an employee’s injury does not come within the ambit
of the Act, the employee’s common-law remedies against his
employer are preserved unimpaired. Adams v. Alliant
Techsystems, Inc., 261 Va. 594, 599, 544 S.E.2d 354, 356 (2001);
Griffith v. Raven Red Ash Coal Co., 179 Va. 790, 798, 20 S.E.
530, 534 (1942). An injury comes within the ambit of the Act
only if the injury satisfies both the “arising out of” and the
“in the course of” prongs of the statutory requirements of
compensability. With regard to the “arising out of” prong, we
apply the “actual risk” test rather than the “positional risk”
test, where simply being injured at work is sufficient to
establish compensability, to determine whether a particular
injury satisfies these statutory requirements of compensability.
County of Chesterfield v. Johnson, 237 Va. 180, 185, 376 S.E.2d
73, 75-76 (1989).
In the present case, it is beyond question in the context
of determining compensability under the Act that, as alleged in
her motion for judgment, the physical assault upon Butler arose
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“in the course” of her employment with Southern States. When
the assault occurred she was in the process of making an
authorized delivery of feed for her employer. The dispute
between the parties and consequently the necessary focus of our
analysis is whether that assault also arose “out of” Butler’s
employment.
“A physical assault may constitute an ‘accident’ within the
meaning of the Act when it appears that it was the result of an
actual risk arising out of the employment.” Reamer v. National
Service Industries, 237 Va. 466, 470, 377 S.E.2d 627, 629
(1989). And we have held that such an accident arises out of
the employment if there is a causal connection between the
employee’s injury and the conditions under which the employer
requires the work to be done. See, e.g., Plummer v. Landmark
Communications, Inc., 235 Va. 78, 87, 366 S.E.2d 73, 77 (1988);
R & T Investments, Ltd. v. Johns, 228 Va. 249, 255, 321 S.E.2d
287, 290-91 (1984); Lynchburg Steam Bakery v. Garrett, 161 Va.
517, 522-23, 171 S.E. 493, 495 (1933).
Southern States principally relies upon this line of cases
to assert essentially that Butler’s allegations establish that
by hiring Allen in light of his prior criminal convictions,
Southern States had knowingly exposed all of its female
employees to a safety risk and, therefore, there was a causal
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connection between Butler’s injury and the conditions under
which Butler was required to work. This reliance is misplaced.
We have consistently held that when an assault “is personal
to the employee and not directed against [her] as an employee or
because of [her] employment, the injury does not arise out of
the employment.” Richmond Newspapers v. Hazelwood, 249 Va. 369,
373, 457 S.E.2d 56, 58 (1995); see also Reamer, 237 Va. at 471,
377 S.E.2d at 630; 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).
In the present case, Butler’s allegations, taken as true
for purposes of our review, clearly establish that Allen’s
assault on Butler was personal to Butler and not directed
against her as an employee or because of her employment.
Allen’s actions were the result of his asserted personal
attraction to Butler. Allen’s actions were in no way in
furtherance of Southern States’ business and, therefore,
Butler’s injury cannot fairly be traced to her employment as a
contributing proximate cause. Our prior decisions regarding
personal assaults dictate the conclusion that the assault on
Butler did not arise “out of” her employment in the context of
the Workers’ Compensation Act.
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Southern States maintains that Butler’s allegations of
respondeat superior liability in her motion for judgment
necessarily cause her claim to be barred under the Act. We
disagree. To plead respondeat superior liability, a plaintiff
must allege that the injury caused by the act of an employee,
such as Allen in this case, occurred within the scope of the
employment relationship. This is directly analogous to an
injury “in the course of” an individual’s employment for
purposes of the exclusivity analysis under the Act. However,
this is only one prong of that analysis. The exclusivity
provision of Code § 65.2-307 applies only to an injury both
“arising out of” and “in the course of” an individual’s
employment. Code § 65.2-300. These requirements for
compensability of a claim and, in turn, for the exclusivity of
the remedy under the Act, are not synonymous. R & T
Investments, 228 Va. at 252, 321 S.E.2d at 289.
As we have demonstrated, the allegations in Butler’s motion
for judgment, taken as true, would establish that Allen’s
assault did not arise “out of” the employment. Consequently,
Butler did not plead herself into the bar of Code § 65.2-307 by
her allegations of respondeat superior liability against
Southern States. Accordingly, we hold that in the procedural
posture of this case, the trial court erred in sustaining the
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special pleas in bar and dismissing Butler’s motion for judgment
with prejudice.
CONCLUSION
For these reasons, we will reverse the judgment of the
trial court sustaining the special pleas in bar and remand the
case to the trial court for further proceedings consistent with
the views expressed in this opinion.
Reversed and remanded.
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