The Positional Risk Doctrine-compensability of Neutral Force Injuries
| Publication year | 1988 |
| Pages | 2375 |
| Citation | Vol. 12 No. 1988 Pg. 2375 |
1988, December, Pg. 2375. The Positional Risk Doctrine-Compensability of Neutral Force Injuries
In a recent decision, the Colorado Supreme Court ("Court") held that when a worker is injured on the job from causes which are neither distinctly related to the worker's employment nor specifically personal in nature, he or she will be entitled to worker's compensation. In In Re Question Submitted by the United States Court of Appeals for the Tenth Circuit ("Tolbert"),(fn1) the Court interpreted the "arising out of employment" test of compensability(fn2) and specifically adopted the "positional risk" doctrine. This article discusses the Tolbert decision and its impact on compensability issues in worker's compensation.
In March 1983, Deborah Tolbert, an employee of Martin Marietta Corporation at its aerospace facility, was on her way to have lunch in the company cafeteria. A custodian, Arthur Martinez, dragged her into a vacant office and sexually assaulted her. Tolbert filed an action against Martin Marietta in federal court for negligently hiring Martinez and for failing to make its premises reasonably safe for its employees. Martin Marietta filed a motion to dismiss the action, asserting that it was barred by the Colorado Workmen's Compensation Act ("Act").
Federal District Judge James Carrigan denied the motion, and held that the exclusive remedy provision of Colorado law(fn3) did not bar the lawsuit because the sexual assault did not "arise out of" the claimant's employment. He stated that Tolbert "was not raped because of the nature of her duties or the nature of her workplace environment nor because of any incident or quarrel growing out of the work."(fn4)
Citing Colorado authority,(fn5) Judge Carrigan held that, for such an injury to be compensable, it must be shown that the employment increased the worker's risk of injury above that to which the general public is exposed. Following an appeal by Martin Marietta, the 10th Circuit Court of Appeals certified the matter to the Colorado Supreme Court to obtain an opinion as to whether the Act provides the exclusive remedy "for injuries resulting from a sexual assault by a co-worker which was motivated by considerations neither personal to the injured employee nor distinctly associated with the employment. . . ."(fn6)
The Colorado Supreme Court held that Tolbert could not maintain an action against Martin Marietta for negligence in hiring Martinez nor for negligence in maintaining an unsafe workplace.(fn7) The court determined that her exclusive remedy was to file a worker's compensation claim. The court also held that injuries which occur in the course of employment and which are brought about by a "neutral force" are compensable. Since there was no pre-existing personal relationship between Martinez and Tolbert and the injury could not be seen as arising out of any circumstance personal to them, the sexual assault was held to be a neutral force.(fn8)
In the Tolbert decision, the Colorado Supreme Court specifically adopted the "positional risk" theory. The court quoted with approval from Larson's treatise on worker's compensation law, where the "positional risk"...
To continue reading
Request your trial