Landau Injury Law

Sometimes being a “Super Lawyer” isn’t so super. Doug Landau has the unhappy task of advising potential clients that they cannot sue a co-worker, even for negligence, if the case comes about as the result of a work-related event. Likewise, the Herndon Trial Lawyer has also advised people that they have no worker comp claim because the injury at work did not “arise out of and in the course of their employment” as required under the Virginia Workers Compensation Act. How can this be so if they were hurt at their workplace, or by a co-worker or while “on the clock” ???

The Supreme Court of Virginia ruled this month that in a negligence action to recover damages for personal injury and death resulting from an assault on the victim by a fellow employee, the trial court erred in concluding that the Virginia Worker’s Compensation Act provided the exclusive remedy for the claims.  Because Virginia is not governed by the “positional risk test,” merely being at the job site or “on the clock” does not mean that comp benefits will be awarded. Herndon Trial Lawyer Doug Landau explains that the Commonwealth uses the “actual risk test,” such that the injury must be the result of some activity that “arises out of the employment” and not just “in the course of” the work being done.

In the case of Hilton v. Martin, (#070091, 01/11/2008 ) one member of an EMS unit took out the electric cardiac shocker paddles and “shocked” another team member as they were returning in their ambulance to the station. The woman electrified by the Defendant eventually died from her injuries. Her Estate brought a lawsuit against the Defendant co-worker, her employer and others, seeking damages for her personal injuries and wrongful death.

Applying the actual risk test to the Hilton case, the Supreme Court of Virginia reasoned that the assault on the victim had no relationship with her status as an employee.  Whether intended as flirtatious, merely playful, or as harassment, the assault was purely personal and thus the resulting injury and death did not “arise out of the employment” under Virginia Code section § 65.2-101. The judgment for the employer barring the decedent’s claim was reversed and the case was remanded for further proceedings.  As one of “The Best Lawyers in America,” Doug Landau tries to follow important cases that will have an impact on his clients and their families.  The Virginia Trial Lawyer is interested to see what happens to this case on remand, once it returns to the the Trial Court.

This entry was posted on Thursday, January 10th, 2008 at 2:01 pm and is filed under Assault & Harassment, Disability, Job Accidents, Negligence Cases, Workers Compensation. You can follow any responses to this entry through the RSS 2.0 feed. You can leave a response, or trackback from your own site.