State News : South Dakota

This is an interesting decision regarding a parking lot case. Here, a husband came to his wife’s work during her morning break and shot and killed her in the parking lot. He then took his own life. It was undisputed that work had nothing to do with the martial conflicts they were having, yet a petition was filed because the murder took place on the employer premises. The department found the death did not arise out of the wife’s employment, the circuit court affirmed, and the SD Supreme Court also affirmed.

In order to arise out of the employment, the injury must have its origin in the hazard to which the employment exposed the employee. There are three possible categories to determine whether an injury has its origin (i.e. whether there is a causal connection) in the employment. These are: 1. Risks distinctly associated with the employee, which are always compensable. 2. Risks personal to the employee. These are generally non-compensable and defined as "risks so clearly personal that, even if they take effect while the employee is on the job, they could not possibly be attributed to the employment." 3. Neutral risks, which may be compensable under the positional risk doctrine.

Positional risk doctrine only applies in neutral risk situations. Positional risk involves situations where the only connection with the employment is that the work placed the employee at the particular place and time when he or she was injured by a neutral force (neither personal to the employee nor distinctly associated with the employment).

Under the positional risk doctrine, you apply the "but for" test: "An injury arises out of the employment if it would not have occurred but for the fact that the conditions and obligations of the employment placed claimant in the position where he or she was injured."

The HSBC case hinged on whether the death was from a neutral risk or a personal risk. The Court found the death arose from the personal risk (pressure from the pending divorce). "The positional risk doctrine requires that the risk must be one in which any other person then and there present would have met with irrespective of his employment." Since the husband would not have killed anyone but his wife, no other employee would have met with the same fate, and thus the positional risk doctrine did not apply.

Other assault cases may be compensable depending on the circumstances. For instance, fights between co-workers, when the employer brings the two employees together, the fight is about work, etc. Unfortunately, there is no bright-line rule and this will be fact specific in the future.

The claimant argued the employment contributed to the assault because the husband knew where she parked and the only time she was away from the kids was when she was at work (he wouldn’t have killed his wife in front of the kids). The court rejected this argument as the risk of assault must be increased by the employment. The Court said just because the wife was killed on the premises was not enough even if it provided the husband with the opportunity to kill her as the work did not have anything to do with the conflict between them.

The case also had a discussion about unexplained deaths, shifting presumptions and other legal mumbo jumbo. I’m not sure what significance this will have later on. I do not believe this case will have much bearing on future parking lot cases unless we can show that the injury was personal and not neutral. For instance, if someone trips in a pot hole in the parking lot, that’s a neutral risk because "but for" the work, the employee would not have been in that parking lot. However, if the employee’s knee simply gives out, that may be a personal risk and the "but for" test would not be used. The key will be how the department classifies the injury and risk.

If you have questions, please call me at 605-336-2424 or email me atcalarson@bgpw.com.  Thanks, Charlie Larson.